FEBRUARY 1991
COMMISSION DECISIONS
08-14-90
02-07-91
02-07-91
02-05-91

Bob Sherman, employed by Blackhawk
Transit Mixed Concrete Company
Eastern Associated Coal Corporation
Rochester & Pittsburgh Coal Company

WEST 90-110-M
WEST 90-72-M
WEVA 89-198
PENN 88-284-R

Pg.
Pg.
Pg.
Pg.

173
175
178
189

CENT 90-45-M
PENN 90-206-R
SE
90-112-DM
WEVA 90-74-C
WEVA 91-5
YORK 90-9-M
KENT 90-410
VA
90-56-C
KENT 90-351-D
LAKE 89-68-M
WEST 90-217-R
KENT 86-49-D
SE
90-140-M
VA
90-58-D
KENT 86-76-D

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

201
205
207
216

219
222
227
229
256
263
285
Pg. 286
Pg. 290
Pg. 291

WEST 90-194-M

Pg. 294

WEST 91-143-DM

Pg. 307

VA

90-54

Pg. 310

KENT 91-30

Pg. 315

ADMINISTRATIVE LAW JUDGE DECISIONS
02-07-91
02-07-91
02-07-91
02-07-91
02-07-91
02-07-91
02-11-91
02-11-91
02-13-91
02-19-91
02-19-91
02-21-91
02-25-91
02-25-91
02-26-91
02-26-91

B & B Gravel Company, Inc.
BethEnergy Mines, Inc.
Ronny Boswell v. National Cement Co.
Local 9909, Dist. 31, UMWA v. Consolidation Coal
Bentley Coal Company
Herba Sand & Gravel
RBM Enterprises, Inc.
Danny Sparks et al. v. VP-5 Mining Co.
Wendell Cook v. South East Coal Company
Warren Steen Construction
Wyoming Fuel Company
John A. Gilbert v. Sandy Fork Mining Co.
Giant Cement Company
David H. Brewer v. Westmoreland Coal Co.
Sec. Labor on behalf of John A. Gilbert v.
Sandy Fork Mining Co.
Skelton Incorporated

217

ADMINISTRATIVE LAW JUDGE ORDERS
01-15-91
02-07-91
02-20-91

Sec. Labor on behalf of Martin L.
Richardson v. F.K.C., Inc.
Robert V. Swindall employed by
Clinchfield Coal Company
Toler Creek Energy, Inc,

FEBRUARY 1991
Review was granted in the following cases during the month of Februa~:
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No.
LAKE 90-53. (Judge Broderick, January 9, 1991)
Drummond Company v. Secretary of Labor, MSHA, Docket No. SE 91-10-R,
SE 91-11-R. (Judge Weisberger, January 14, 1991)
Review was denied in the following case during the month of February:
Secretary of Labor, MSHA v. C & C Crushed Stone, Inc., Docket No.
CENT 90-21-M, CENT 90-68-M. (Judge Fauver, December 27, 1990)

COMMISSION DECISIONS

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

20006

August 14', 1990

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

v.

WEST 90-110-M

BOB SHERMAN, Employed by
BLACKHAWK

BEFORE:

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

ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq . (1988)("Mine Act"). On
July 18, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding respondent Bob Sherman ("Sherman"),
employed by Blackhawk, in default for failure to answer the Secretary of
Labor's civil penalty proposal and the judge's order to show cause.
Sherman had been cited for violating the Mine Act's mandatory standards
prohibiting smoking . 30 U.S.C. § 877(c). The judge assessed the civil
penalty of $250 proposed by the Secretary. For the reasons that follow,
we vacate the default order and remand this case for further
proceedings .
The judge's jurisdiction in this proceeding terminated when his
default order was issued on July 18, 1990 . 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from .the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). On
August 2, 1990, the Commission received a letter from Sherman, addressed
to Judge Merlin, in which Sherman explained that he had failed to timely
respond to the judge ' s show cause order because he had been hospitalized
unti l July 19, 1990. Sherman also expressed his belief that the penalty
assessed against him was in the amount of $25.00 and sent that sum in
payment. Under the circumstances, we deem Sherman's letter to

173

constitute a timely petition for discretionary · JView requesting relief
from the judge's default order and assessment of the $250 penalty. See,
~·Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
It appears from the record that Sherman filed a "Blue Card"
request for a hearing in this matter in response to the Secretary's
initial notification of proposed penalty. It further appears that
Sherman , proceeding without benefit of counsel, may have raised an
explanation for his failure to timely respond to the judge's show cause
order . In conformance with the standards set forth in Fed. R. Civ . P.
60(b)(1), the Commission has generally afforded relief from default upon
a showing of inadvertence, mistake, or excusable neglect . ~ . Hickory
Coal Company, 12 FMSHRC 1201 , 1202 (June 1990) . We are unable on the
basis of the present record to evaluate the merits of Sherman's position
but, in the interest of justice, we will permit Sherman the opportunity
to present his position to the judge, who shall determine whether final
relief from the default order is warranted. See, ~· A. H. Smith Stone
Company , 11 FMSHRC 2146, 2147 (November 1989) .
Accordingly, we grant Sherman's petition for discretionary review,
vacate the judge's default order, and remand this matter for proceedings
consistent with this order.

~n
V. Backley, Commissioner

J~~c~~siW
Ja~7~::r
L. Clair Nelson, Commissioner

174

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

February 7 , 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 90-72-M

TRANSIT MIXED CONCRETE COMPANY

BEFORE:

Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U. S . C. § 801 et seq. (1988)("Mine Act"). On October
11, 1990, Commission Administrative Law Judge John J. Morris issued a decision
in this matter approving settlement between the Secretary of Labor and
respondent Transit Mixed Concrete Company ("TMC"). The Secretary now requests
that the judge's decision be amended or that a supplemental decision approving
settlement be issued. The Secretary asserts that the parties' settlement
agreement inadvertently omitted one of the citations involved in this case and
that the parties have now settled that matter as well. For the reasons
explained below, we reopen and remand this matter to the judge for further
proceedings.
In relevant part, the record discloses that on August 24, 1989, an
inspector of the Department of Labor's Mine Safety and Health Administration
issued to TMC two ci t ations at i t s Azusa plant in Los Angeles County,
California. Citations No. 3466441 and No. 3466442 allege defective brakes on,
respectively, a mobile sweeper and fork lift in violation of 30 C.F.R.
§ 56.14101.
TMC filed a "Blue Card" notice of contest of the Secretary's proposed
civil penalty assessment for the two alleged violations. On January 26, 1990,
the Secretary filed with the Commission a civil penalty petition proposing
penalties of $600 for each violation. By letter to the Commission dated
February 14, 1990, TMC indicated that it "accept(ed] citation /13466442 and
[was] in the process of sending [penalty] payment" but that it still wished to
contest Citation No. 3466441.
On July 30, 1990, the Secretary filed with the judge a motion for
approval of a settlement with respect to Citation No. 3466441. The motion

175

stated that TMC had agreed to pay a civil' penalty of $400 but without
admission of the violation. On October 11, 1990, Judge Morris issued his
Decision Approving Settlement ordering TMC to pay the agreed - to penalty of
$400.
By letter to Judge Morris dated January 16, 1991, the Secretary requests
the judge to amend his October 11, 1990 decision or to issue a supplemental
decision approving settlement. The Secretary's letter acknowledges that it
was the parties' "error" not to have included Citation No. 3466442 in the
original motion to approve settlement. The letter asserts that TMC has paid
the proposed civii penalty of $600 for Citation No. 3466442. A copy of a
check for $600 dated December 7, 1990, from TMC to the order of the U.S.
Department of Labor is attached . On the statement accompanying the check,
there is handwriting indicating "Citation :/103466442." Judge Morris has
forwarded the Secretary's letter to the Commission.
The judge's jurisdiction in this matter terminated when his Decision
Approving Settlement was issued on October 11, 1990. The Secretary did not
file a timely petition for discretionary review of the judge ' s decision within
the 30-day period prescribed by the Mine Act (30 U. S.C. § 823(d)(2)(A)(i).
See also 29 C.F.R. § 2700.70(a)). Nor did the Commission direct review on its
own motion within this 30-day period (30 U.S.C. § 823(d)(2)(B)). Thus, under
the statute, the judge's decision became a final decision of the Commission 40
days after its issuance . 30 U.S.C. § 823(d)(l). Under these circumstances,
we deem the Secretary's submission to be a request for relief from a final
Commission order, and to incorporate by implication a late-filed petition for
discretionary review. 29 C.F.R. § 2700.l(b)(Federal Rules of Civil Procedure
apply, "so far as practicable" and "as appropriate," in absence of applicable
Commission rules); Fed. R. Civ. P. 60(b) (Relief from Judgment or Order).
See,~. Danny Johnson v. Lamar Minin~ Co., 10 FMSHRC 506, 508 (April 1988);
Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986). Accordingly, we
reopen this matter and proceed to consider the Secretary's substantive request
for relief.
Relief from a final judgment or order on the basis of mis.take,
inadvertence, surprise or excusable neglect is available to a movant under
Fed. R. Civ. P . 60(b)(l) & (6). The record suggests that the Secretary's
original motion for settlement approval erroneously and inadvertently failed
to present to the judge a complete settlement agreement addressing Citation
No. 3466442. Now the Secretary has proffered, in effect, an amended
settlement approval motion addressing that citation . We conclude that this
matter should be remanded to the judge, who shall conduct appropriate
proceedings necessary for final disposition of Citation No. 3466442.

176

For the foregoing reasons, this case is remanded to the judge for
appropriate proceedings.

Arlene Holen, Commission

L: Clair Nelson, Commissioner

Distribution
John C. Nagle, Esq.
Associate Regional Solicitor
U.S . Denartment o~ Labor
3247 r.ederal Suilding
300 North Los An~eles Street
Los Angeles, California 90012
Hr. r.ene Hade
Transit Mixed Concrete Co.
4760 Valley Blvd.
Los Angeles, California 90032
Administrative Law Judge John J. ~orris
T."ederal !1ine Safetv & Health Revie\v Commission
280 Federal BldP..
1244 Sneer Boulevard
Denver, Colorado 80294

177

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

7, 1991

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 89-198

v.

EASTERN ASSOCIATED COAL
CORPORATION

BEFORE:

Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding ar1s1ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents the question of whether a violation by Eastern Associated Coal
Corporation ("Eastern") of 30 C.F.R. § 75.400, a mandatory underground coal
mine safety standard requiring that combustible materials be cleaned up and
not permitted to accumulate in active workings, was of a "significant and
substantial" nature ("S&S") and the result of Eastern's "unwarrantable
failure" to comply with the standard. 1 Commission Administrative Law Judge
Avram ·Weisberger concluded that Eastern violated 30 C.F . R. § 75.400 but that
the violation was not S&S and was not the result of its unwarrantable
failure. 12 FMSHRC 239 (February 1990)(ALJ). The Commission granted the
Secretary of Labor's petition for discretionary review, which challenges the
judge's determinations that the violation was not S&S and was not
unwarrantable. For the reasons that follow, we affirm, on substantial
evidence grounds, the judge's conclusion that the violation was not S&S, and
vacate his conclusion that the violation was not unwarrantable, remanding
the issue of unwarrantability for reconsideration.

1

30 C.F.R. § 75.400, entitled "Accumulation of combustible
materials," states:
Coal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on
electric equipment therein.

178

I.

Factual Background and Procedural History
Eastern owns and operates the Federal No. 2 Mine, an underground coal
mine located in West Virginia. On February 8, 1989, a Department of Labor
Mine Safety and Health Administration ("MSHA") inspector, Thomas Doll,
examined the 3 North tipple area during the course of a quarterly inspection
of the mine. When Doll entered the tipple area, James Merchant, the tipple
operator, informed Doll of an oil leak on the opposite side of the track and
stated that he had reported the leak to Eastern's management "more than
once.;' Tr. 137-38.
Upon inspection, Doll found accumulations of hydraulic oil on and
around the hydraulic tub structure. The hydraulic tub is designed to hold
over 30 gallons of hydraulic oil. It has a 460-volt AC motor, pump, and a
series of hoses and fittings that take oil where it is needed for the
operation of the tipple. Doll testified that the oil was leaking from
numerous hose fittings and that some of the fittings were "dripping really
bad, ... coming out really fast .... " Tr. 146, 175. The oil was on and
under the motor and motor frame, on the tub's hoses, and under the hydraulic
tub. A piece of belting was hooked under one of the fittings to direct one
of the leaks to the mine floor. The puddles under the tub were
approximately three feet wide, four feet long, and up to four inches deep.
According to Doll, the oil was pure hydraulic oil and was not mixed with mud
or dirt. The motor on the hydraulic tub was functioning, but the tipple
itself was not running. Tr. 144-48.
Doll also found accumulations of hydraulic oil under the car spotter
motor, which was located near the hydraulic tub. 2 Doll did not notice any
leaks on the car spotter motor and believed that the accumulations came
entirely from the hydraulic tub. Doll estimated that the total accumulation
of hydraulic oil was 20 to 25 gallons. Doll also noticed that a trench,
measuring 10 inches wide, 6 to 8 inches deep, and 15 feet long, had been
hand-dug to collect the oil. Tr. 143-47.
Doll issued a withdrawal order to Eastern, pursuant to section
104(d)(2) of the Mine Act, 30 U.S.C,, § 814(d)(2), alleging a violation of 30
C.F.R. 75.400 for an excessive accumulation of a combustible material,
hydraulic oil. Doll found that the alleged violation was S&S. At the
hearing, he testified that the hazard was the accumulation of hydraulic oil,
coupled with the presence of electrical wires, motors, and cables as
ignition sources. Doll indicated that the oil was flammable and that some
ignition sources were nearby, pointing out that the cables for the motor on
the hydraulic tub and the motor on the car spotter were within inches of the
oil. He indicated that a short-out, arc, or spark could start a fire and
stated that ignition of the oil was "highly likely" if the "situation was
not taken care of." Doll further testified that in the event of a fire,
serious burn or smoke inhalation injury was quite likely. Tr. 152-54.
2

The car spotter motor moves the coal cars on the track as they are
loaded so that the cars are loaded evenly.

179

Doll found Eastern's negligence to be high and that the violation
resulted from Eastern's unwarrantable failure to comply with the standard
because the condition had been reported to Eastern by Merchant, the tipple
operator, on January 31, 1989, a week prior to the date the violation was
cited. Doll testified that the quantity of accumulated oil was also a
factor. Doll further stated that the track was fire bossed daily and that
the condition should have been noticed. Doll indicated that, while he had
been informed that Eastern had sent mechanics to work on the leaks during
the prior weekend, considering the way the system was leaking, he did not
believe that any effective work had been done. Tr. 156-58.
Merchant testified that on and off for the two to three years prior to
the citation there had been problems keeping a sufficient reservoir of oil
in the tipple. Tr. 197. He indicated that on some days he would be
required to add some 20 to 25 gallons of oil per shift. Tr. 198. Merchant
stated that he had told his foreman, John Kucish, and Roger Boggess, a
maintenance foreman, of the oil leak problems at the tipple. Tr. 117, 20003, 260. He testified that about a week before February 8, he had reported
the condition to Kucish and that Boggess subsequently told him that the
problem was supposed to have been fixed, but that the person assigned did
not get to it. Merchant also testified that on February 6 and 7 the tipple
was not leaking any less, because he still needed to add 15 to 25 gallons of
oil each shift. According to Merchant, he would have had to add oil under
normal conditions only once each month. Tr. 203-07.
To abate the violation, Kucish, Boggess, and David Tennant,
underground maintenance superintendent, went to the site. The area was
cleaned and the car spotter unit was run to determine what, if anything, was
leaking. According to Kucish, drips were located at some of the fittings.
In his view, those drips were insufficient to accumulate during one shift
into the quantity of oil present when the order was issued. Tr. 242, 24647. Boggess testified that on February 8 he worked on the abatement of the
violation, and that only one slight "dripper" on the car spotter
unit/hydraulic power unit remained. Tr. 249-50. To correct that one
dripper, some plumbing was eliminated on the system. Tr. 250. Boggess
opined that the one leak in question was not of sufficient size to have
caused the accumulation. Tr. 250. Tennant essentially confirmed Boggess'
testimony. Tr. 260-61. All three felt that the unit may have been
overfilled, causing oil to come back out of the bre)lthers, or that oil was
spilled when it was put into the hydraulic tub. Tr. 242, 250, 261-62, 26465. In terminating the withdrawal order, Doll indicated "[t]he area was
cleaned and some oil leaks were fixed." G. Exh. 1.
Before the judge, Eastern conceded the violation. In addressing the
S&S question, Eastern argued that there was no likelihood of any injury as a
result of the accumulation. Boggess and Tennant testified that a spark or
short from the electrical equipment in the area would be incapable of
igniting the oil. Tr. 255, 264. Kucish further testified that the area was
adequately rock dusted. Tr. 239. Boggess and Kucish testified that there
was a fire suppression system over the car spotter motor. Tr. 240-41, 25354. Boggess also testified that there were fire fighting materials and
equipment in the area, including water hoses, rock dust, and fire

180

extinguishers.

Tr. 240.

In contesting the inspector's unwarrantable failure finding, Eastern
argued that it had performed maintenance on the tipple equipment, including
dealing with oil leaks, on January 31 and February 4, 1989. Kucish
testified that when he observed the area on February 5, 1989, after the
second maintenance operation, there were no observable oil leaks. Tr. 23132. Eastern asserted that it was unaware of the oil situation at the tipple
on February 8, 1989, and further suggested that the accumulation could have
resulted from either spillage or overfilling of the hydraulic tub that day.
In his aecision, the judge found a violation of 30 C.F.R. 75.400, as
conceded by Eastern. However, the judge vacated the S&S and unwarrantable
failure findings. With respect to the S&S finding, the judge held that
"[a]lthough, based on [Inspector] Doll's testimony, it can be concluded that
ignition of the oil could have resulted, I find that it has not been
established that such an event was reasonably likely to occur." 12 FMSHRC
at 240. The judge discounted the fact that various ignition sources,
including a motor, wires and cables, were present because "there is nothing
in the record to indicate that this equipment was in such a condition as to
make sparking or arcing an event reasonably likely to occur." Id. Relying
on Eastern's witnesses' testimony, the judge stated:
[D]ue to Roger Boggess' experience as a maintenance
foreman, I place some weight on his opinion that a
spark would not ignite the oil, and that a sustained
fire would be needed. Further, John Kucish, who was
the production foreman in charge of the section on
February 8, indicated that the area in question was
adequately rock-dusted. Also, he and Boggess
indicated that there was a fire suppression system
over the top of the power unit of the car spotter,
and that there were various items to extinguish
fires in the area.
12 FMSHRC at 240. Taking all of the above factors intq account, the judge
concluded that it had not been established that the ~iolation was S&S.
The judge also determined that the violation was not unwarrantable.
He found that the leak had existed on and off for two to three years and had
been reported to Eastern several times, including one week prior to the
issuance of the instant order. 12 FMSHRC at 242. However, the judge noted:
I accept the testimony of Respondent's witnesses
that twice within 8 days prior to February 8,
maintenance work had been performed on the equipment
in question. I accept the testimony of Kucish that
when he observed the area on the day after the work
had been performed on February 4, there were no
"visual leaks" . . . . Although Merchant indicated
that on February 6-7, 1989, the equipment was not
leaking less, there is no evidence that the

181

condition was reported to management on these days.
I thus conclude, taking the above into account, that
Respondent herein did not exhibit any aggravated
conduct, and hence the violation herein did not
result from its unwarrantable failure.
12 FMSHRC at 242.
In assessing the civil penalty for the violation, the judge found that
Eastern was highly negligent for not ensuring that its work on February 4
was successful and that there was no longer any accumulation of oil. The
judge relied on Merchant's testimony that the leakage problem had existed
intermittently for two to three years and had been reported to Kucish
numerous times. The judge additionally noted the large quantity of oil
observed on February 8. 12 FMSHRC at 242. The judge assessed a civil
penalty of $900. Finally, the judge modified the withdrawal order to a
citation issued pursuant to section 104(a) of the Mine Act, 30 U.S.C.
§ 814(a).
II.

Disposition of Issues
A.

Whether the violation was S&S

A violation is properly designated as being S&S "if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division. National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contrib~ted to by the
violation; (3) a reasonable 1-ikelihood that the
hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria). The
question of whether any specific violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498,
500-01 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12
(December 1987). In determining whether the judge's S&S finding is
supported by substantial evidence, as with other substantial evidence
questions, the record as a whole must be considered, including evidence that
"fairly detracts" from the finding. .E....g_,_, Universal Camera Corp. v. NLRB,

182

340 U.S. 474, 488 (1951); see also~. Florence Mining Co., 11 FMSHRC 747,
753, 755-57 (May 1989). The term "substantial evidence," as this Commission
has consistently recognized, means "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Harry Ramsey v.
Industrial Constructors Corp., 12 FMSHRC 1587, 1592 (August 1990), and cases
cited.
As to the first S&S element, the violation of section 75.400 has been
established. Concerning the second element, there is no serious question on
review that a discrete hazard of a potential fire existed. There was an
undisputed accumulation of a combustible substance, hydraulic oil, combined
with the presence of possible ignition sources. The crucial question on
review is the third S&S element - whether there was a "reasonable
likelihood that the hazard contributed to will result in an injury." The
third element of the Mathies formula "requires that the hazard contributed
to will result in an event in which there is an injury" (U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984)), and the violation itself must be
evaluated in terms of continued normal mining operations. (U.S. Steel
Mining Co .. Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc.,
8 FMSHRC 8, 12 (January 1986)). The relevant time frame for determining
whether a reasonable likelihood of injury exists includes both the time that
a violative condition existed prior to the citation and the time that it
would have existed if normal mining operations had continued. Halfway,
Inc., 8 FMSHRC at 12; U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August
1985).
As a threshold contention, the Secretary submits that the judge
erroneously equated the reasonable likelihood element with the presence of
an "imminent danger." (See 30 U.S.C. § 817 (dealing with procedures to
counteract imminent dangers); see also 30 U.S.C. § 802(j) (definition of
"imminent danger").) If this were, in fact, what the judge had done, the
Secretary's point would be well taken. Section 104(d)(l) of the Mine Act,
in which the S&S terminology is initially set forth, makes clear that the
conditions created by an S&S violation need not necessarily be so impending
as to constitute an imminent danger. 3 We find no indication in the
3

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

.183

judge's decision, however, that he actually required the Secretary to
demonstrate a reasonable likelihood of injury so pressing as to be
"imminent." Further, we are satisfied that the judge applied the correct
reasonable likelihood test consistent with Commission precedent. The
question is whether his findings in that regard are supported by the
evidence.
In Texasgulf, supra, the Commission developed an analytical approach
useful for determining the reasonable likelihood of a combustion hazard
resulting in an ignition or explosion. The Commission established that
there must be a "confluence of factors" to create a likelihood of ignition.
10 FMSHRC at 501. The evidence relied on by the judge in the present
proceeding provides adequate support for a finding that there was not a
"confluence of factors" pointing to a reasonable likelihood of a fire
involving the accumulation of hydraulic oil.
The judge relied on Boggess' testimony that a spark would not ignite
the oil, and that a sustained fire would be needed for ignition. 12 FMSHRC
at 240; Tr. 253. Tennant, who has State electrical certification, also
testified that a spark would not be a sufficient ignition source for
hydraulic oil. Tr. 264. Boggess testified that the hydraulic oil would not
burn easily. Tr. 252. On review, the Secretary has not addressed
substantively Boggess' or Tennant's testimony, or otherwise discussed the
actual ignitability of hydraulic oil. Although Inspector Doll testified
that the oil was not fire-resistant (Tr. 147), he conceded that he did not
perform any combustibility tests (Tr. 161). The Secretary had the burden of
proof on this point, but only very limited evidence concerning the
combustibility of hydraulic oil was presented.
As the judge also found, there was nothing in the record to indicate
that the mining equipment nearby was in such a condition as to make sparking
or arcing an event reasonably likely to occur. 12 FMSHRC at 1240. Boggess
testified that there were no shorts or other problems with the electrical
circuits at the time. Tr. 253. Tennant testified that it was unlikely for
a fire to start because the power unit's electrical system was protected by
electrical devices that would deenergize power if there were any
abnormalities in the electrical circuits. Tr. 263. Boggess stated that the
electrical equipment was protected by electric circuLts. Tr. 253.
Inspector Doll conceded that the system overloads, breakers, and similar
devices were working. Tr. 164. There is no evidence in the record
indicating the likelihood of these safety features breaking down under
normal continued mining operations.
The evidence of record suggests that even if there were to be an
ignition, it would be of a limited nature and readily contained. The judge
assigned weight to the testimony of. Kucish and Boggess that there was a fire
suppression system, including a water dilute system, over the top of the
hydraulic tank itself, and readily accessible firefighting equipment,
including water hoses, rock dust, and fire extinguishers. 12 FMSHRC at 240;
30 U.S.C. § 814(d)(l)(emphasis added).

184

Tr. 240-41, 253-54, 263. Boggess also testified that the systems were in
working order. Tr. 253. MSHA inspector Doll conceded that these fire
suppression systems were working. Tr. 164. Kucish also testified that the
area was adequately rock-dusted and that, as a general rule, the area was
damp. Tr. 239-40. Merchant conceded that the area was adequately dusted.
Tr. 164. Additionally, Merchant acknowledged that he installed a belt to
function like a trough to drain the oil away from the electrical motors and
added rock dust to muck the oil in the ditch. Tr. 197-98, 199, 216. See
also Tr. 183-84. A miner is also posted at all times at the loading station
just a few feet away. Tr. 240, 263. The testimony also suggests that there
has never been a fire on a power unit at the tipple. Tr. 264.
The Commission's task is not a de novo reweighing of somewhat
conflicting evidence but a determination of whether there is substantial
evidence in the record to support the judge's conclusions. As explained
above, we conclude that substantial evidence does support the judge's
conclusion that the hazard was not reasonably likely to cause an injury and,
consequently, that the violation was not S&S. 4
B.

Whether the violation was unwarrantable failure

The Commission has held that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence by a mine operator in
relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987). This determination was derived, in part, from the ordinary meaning
of the term "unwarrantable failure" ("not justifiable" or "inexcusable"),
"failure" ("neglect of an assigned, expected or appropriate action"), and
"negligence" ("the failure to use such care as a reasonably prudent and
careful person would use, characterized by "inadvertence," "thoughtlessness," and ••inattention"). Emery, supra, 9 FMSHRC at 2001. This
determination was also based on the purpose of unwarrantable failure
sanctions in the Mine Act, the Act's legislative history, and judicial
precedent. Id.
4 The three Commission decisions relied on by the Secretary on review are
distinguishable from the present case. U.S. Steel Mining Co., 7 FMSHRC 327
(March 1985), affirming a judge's S&S finding, involved a water pump with
power wires that were not protected with a required bushing.
The pump
vibrated when in operation. The vibration could cause a cut in the wires'
insulation and, if the circuit protection failed, a person touching the pump
frame could be shocked or electrocuted. The vibrating defect is more akin
here to the presence of a more flammable substance or more certain evidence of
sparking or arcing. Youghiogheny & Ohio Coal Co., 9 FMSHRC 673 (April 1987)
and U, S. Steel Mining Co., 6 FMSHRC 1866 (August 1984), also affirming judges'
S&S findings, involved hazards concerning potential methane ignitions.
Methane is ignitable by a spark and is much more flammable and explosive than
hydraulic oil. Further, the mines in both those proceedings were gassy mines,
as defined by the Mine Act. In all three of these cases, we perceive the kind
of showing of a "confluence of factors" that was not made here.

185

In finding that the violation was not the result of Eastern's
unwarrantable failure, the judge accepted testimony of Eastern's witnesses
that twice within eight days prior to February 8, maintenance work had been
performed on the equipment in question. 12 FMSHRC at 242. Boggess and
Tennant testified that a leak had been reported on January 31, 1989, and
that corrective maintenance was performed that day. Boggess and Tennant
also testified that on February 4, maintenance at the tipple and the track
unit was performed and that adjacent hydraulic jacks were repacked or
replaced because of possible leaks. Tennant stated that any leaks that
could be found were addressed that day. The judge accepted the testimony of
Kucish that, when he inspected the area on February 5, there were no
apparent leaks. Id. Kucish additionally testified that "the area had been
cleaned up and had been dusted." Tr. 231. The judge also concluded that
aggravated conduct was lacking because the leakage on February 6-7 was not
reported to Eastern. 12 FMSHRC at 242.
Notwithstanding these findings, the judge also found that Eastern was
"highly negligent" with respect to the violation:
[T]aking into account Merchant's testimony, that I
accept, that the leak had existed on and off for 2
to 3 years, and was reported by him to Kucish on
numerous times, and taking into account the large
quantity of oil that was observed on February 8, I
conclude that the Respondent was highly negligent in
not having taken steps to ensure that an
accumulation would no longer occur. Although
maintenance work was performed on February 4, and
examined one day later by Kucish, and observed not
to have any visible leaks, there is no evidence that
Respondent examined the area on February 6-7, to
ensure that its work on February 4 was successful,
and there was no longer any accumulation of oil.
For these reasons, I conclude that Respondent was
highly negligent herein.
12 FMSHRC at 242 (emphasis added).
The terms "unwarrantable failure" and "negligenc:en are distinguished
in the Mine Act. A finding by an inspector that a violation has been caused
by an operator's unwarrantable failure to comply with a mandatory health or
safety standard may trigger the increasingly severe enforcement sanctions of
section 104(d). 30 U.S.C. § 814(d). Negligence, on the other hand, is one
of the criteria that the Secretary and the Commission must consider in
proposing and assessing, respectively, a civil penalty for a violation of
the Act or of a mandatory health or safety standard. 30 U.S.C. §§ 815(b)
(l)(B) & 820(i). Although the same or similar factual circumstances may be
included in the Commission's consideration of unwarrantable failure and
negligence, the concepts are distinct. See Quinland Coals, Inc., 7 FMSHRC
1117, 1122 (August 1985); Black Diamond Coal Co., 9 FMSHRC 1614, 1622
(September 1987). Nevertheless, as explained in Emery, and Youghiogheny &
Ohio, aggravated conduct constitutes more than ordinary negligence for

186

purposes of a special finding of unwarrantable failure. "Highly negligent"
conduct involves more than ordinary negligence and would appear, on its
face, to suggest an unwarrantable failure. Thus, if an operator has acted
in a highly negligent manner with respect to a violation, that suggests an
aggravated lack of care that is more than ordinary negligence.
Evidence seemingly unaddressed by the judge in his analysis is
relevant in considering the question of unwarrantable failure. The judge
appears to have found that a leak was the source of the problem. See 12
FMSHRC at 242. Thus, he apparently rejected the testimony of Eastern's
witnesses that the most plausible explanation for what occurred was either a
spill or overfill. The judge, however, made no finding concerning how long
the leak had continued unabated. If the leak had actually continued
unabated from February 6, as Merchant testified, a lack of care on Eastern's
part would appear to be present. Tr. 205-06. The area was fire-bossed
daily and involved at least 12 to 15 inspections (preshift and onshift) by
four or five different people over the period February 6-8. Tr. 209, 233,
235; R. Exh. 6.
A lack of actual knowledge by Eastern's management of the apparently
continuing leak does not necessarily bar an unwarrantable failure finding.
In Pocahontas Fuel Co., 8 IBMA 136, 148-49 (1977), aff'd sub nom. Pocahontas
Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979), failure of a rank-and-file
preshift examiner to detect a violation was found to be imputable to the
operator for unwarrantable failure purposes. Even assuming that Eastern's
preshift and onshift examiners did not record any continuing problem, that
consideration does not necessarily preclude an unwarrantable failure
finding. Emer:y makes clear that unwarrantable failure may stem from what an
operator "had reason to know" or "should have known." 9 FMSHRC at 2003 .
. we further note the judge's finding that "leakage off and on" had been
a problem for two to three years. 12 FMSHRC at 242. Arguably, this
continuing problem placed on Eastern the need for heightened scrutiny to
assure compliance with section 75.400. See Youghiogheny & Ohio, 9 FMSHRC at
2011 (history of roof falls at mine placed operator on notice that
heightened scrutiny was vital). (We also note that in the Y&O case, the
Commission recognized that preshift examinations of the affected area had
been conducted but that the violative condition had not been reported.
9 FMSHRC at 2010-11.)
We do not reach an ultimate resolution of.this issue. The fact that
the judge did not reconcile his findings with respect to negligence and
unwarrantable failure requires that we vacate his conclusion that no
unwarrantable failure existed and remand this proceeding to the judge for
further analysis and consideration.

187

III.

Conclusion
For the foregoing reasons, we affirm the judge's determination that
Eastern's violation of section 75.400 was not S&S, vacate his determination
that the violation did not result from unwarrantable failure, and remand the
question of unwarrantability for reanalysis and further consideration
consistent with this opinion. If the judge determines on remand that the
violation did result from unwarrantable failure, the citation should be
converted to the original section 104(d)(2) withdrawal order.

· oyce

. Doyle,

f2L 'k<
I

Arlene Holen, 7commissioner

L. Clair Nelson, Commissioner

Distribution
Thomas L. Clarke,
Eastern Associated Coal Coruoration
P.O. Box 1233
Charleston, West Virginia 25324
Colleen A. Gera?hty, Esq.
Office of the Solicitor
U.S. Deryartnent of Labor
4015 Wilson Blvd.
ArlinP.tOn, VA 22203

Administrative Law Judge Avram ~!eisberger
Federal ::1ine Safety and Health Review Commission
5203 LeesburR Pike, Suite 1000
Valls Church, Virginia 22041

188

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

February 5, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. PENN 88-284-R
PENN 88,.285-R
PENN 89-72

v.

ROCHESTER & PITTSBURGH COAL
COMPANY

BEFORE:

Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding involves the
issue of whether two violations by Rochester and Pittsburgh Coal Company
("R&P") of 30 C.F.R. § 75.305, a mandatory underground coal mine safety
standard requiring weekly examinations for hazardous conditions in
specified areas of mines, were the result of R&P's "unwarrantable failure"
to comply with the standard. 1 Commission Administrative Law Judge Roy J.
1

Section 75.305, which repeats the statutory standard at section 303(f)
of the Mine Act, 30 U.S.C. § 863(f), states:
In addition to the., preshif£ and daily
examinations required by this Subpart D, examinations
for hazardous conditions, including tests for methane,
and for compliance with the mandatory health or
standards, shall be made at least once each week by a
certified person designated by the operator in the
return of each split of air where it enters the main
return, on pillar falls, at seals, in the main return,
at least one entry of each intake and return aircourse
in its entirety, idle workings, and insofar as safety
considerations permit, abandoned areas. Such weekly
examinations need not be made during any week in which
the mine is idle for the entire week, except that such
examination shall be made before any other miner
returns to the mine.
The person making such
examinations and tests shall place his initials and
the date and time at the places examined, and if any
hazardous condition is found, such condition shall be

189

Maurer concluded that R&P had violated 30 C.F.R. § 75.305 and that the
violations were of a "significant and substantial" nature ("S&S") but
determined that the violations were not the result of R&P's unwarrantable
failure. 11 FMSHRC 1978 (October 1989)(ALJ). Judge Maurer concluded that
the conduct of the mine examiner responsible for the weekly examinations
was not imputable to the operator for unwarrantable failure purposes
because the examiner was a rank-and-file miner and the violation resulted
from that employee's intentional misconduct. 11 FMSHRC at 1982-83. For
the reasons set forth below, we reverse and remand this matter for further
proceedings consistent with this opinion.
I.

Factual and Procedural Background
The facts are essentially undisputed. Before the judge, R&F
stipulated that the mine examiner had failed to place his initials and the
date and time of examination at the places subject to examination, thus
conceding the two violations. (The mine in question provides date boards
on which examiners are to place the date and their initials as they pass an
area.) While of the opinion that the examinations in question were not
done, R&P was unwilling to so stipulate. R&P conceded that the examiner
had entered the examinations in the record book as though completed.
On July 13, 1988, John Daisley, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), conducted an
inspection at R&P's Greenwich Collieries No. 2 Mine, an underground coal
mine located in Pennsylvania. Daisley traveled with United Mine Workers of
America ("UMWA") mine examiner John Urgolites to the P-9 area of the mine.
Daisley did not find any dates, times or initials to indicate that R&P had
conducted a weekly examination in the area for the week ending July 6,
1988, or any day thereafter. Daisley found some dates, times and initials
for the week prior to July 6, 1988, made by Joseph Mantini, indicating that
he had conducted an examination of the P-9 area at that time.

reported to the operator promptly.
Any hazardous
condition shall be corrected immediately.
If such
condition creates an imminent danger, the operator
shall withdraw all persons from the area affected by
such condition to a safe area, except those persons
referred to in section 104(d) of the Act, until such
danger is abated.
A record of these examinations
tests, and actio.ns taken shall be recorded in ink or
indelible pencil in a book approved by the Secretary
kept for such purpose in an area on the surface of the
mine chosen by the mine operator to minimize the
danger of destruction by fire or other hazard, and the
record shall be open for inspection by interested
persons.

190

After Daisley reached the surface, he examined R&P's record book
entitled "Weekly Reports of Air Measurements and Conditions of
Aircourse .... " The record book indicated that an examination of the P-9
area had been made on July 6, 1988. The entry in the book was signed by
Mantini, the miner responsible for the examination. At that time, Daisley
did not take any enforcement action with respect to the P-9 area because he
"actually couldn't believe" that there could be such a discrepancy and he
intended to re-inspect the area. Tr. 23-24. The record book indicated
that on Thursday, July 7, 1988, an examination of the main S return had
also been conducted by Mantini. Tr. 63-64; Exh. R-4.
On July 14, 1988, Daisley entered the mine and went to the S and T
areas of the mine, accompanied by Urgolites, mine examiner Rich Rummell,
and Joe DeSalvo, R&P safety inspector. Daisley did not find any dates,
times or initials indicating that an examination had been conducted in the
Sand T areas for the week ending July 7, 1988, or any day thereafter until
July 13, 1988. However, Daisley found dates, times, and initials
indicating that examinations had been conducted by Mantini in some of the
areas for the week prior to July 7, 1988.
In some locations, the last date
Daisley found entered on the applicable date board was June 23, 1990.
Exh.

G-3.
On July 14, 1988, Daisley issued R&P two withdrawal orders, pursuant
to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2), alleging violations
of section 75.305. The orders stated that the required weekly examinations
in the inspected areas had not been made although the mine examiner,
Mantini, had recorded the examinations as having been conducted. Daisley
marked both orders "S&S" and "high" for negligence. Daisley noted that no
area was affected by withdrawal because appropriate examinations were made
during the course of his inspections.
Mantini was not the regular examiner for the areas involved in this
proceeding. The period June 26 through July 10, 1988, was the regularly
scheduled two-week vacation period for most of the miners who worked at the
mine. Although production was discontinued during the vacation period,
so~e miners performed various tasks in the mine.
Normally Mantini, a rankand-file miner, was a belt person. However, during the miners' vacation
period, he had the right, due to his qualifications and seniority, to work
and to serve as the examiner charged with conducting the weekly
examinations required under 30 C.F.R. § 75_305. Mantini is certified by
the State of Pennsylvania as a mine examiner and, as such, meets MSHA's
requirements for serving as a certified mine examiner.
See 30 C.F.R.
§ 75.2(a). 2

2

In order to be certified by Pennsylvania, a miner needs three years of
underground experience and must pass an oral and written examination. Tr. 2021, 47, 51. For purposes of section 75.305's weekly examinations, a certified
person is a "person who [is] certified as a mine foreman (mine manager), an
assistant mine foreman (section foreman), or a preshift examiner (mine
examiner)." 30 C.F.R. § 75.lOO(a).

191

After the vacation period ended all the miners returned to work.
Daisley's view, examinations were required to be made on July 6 and 7,
1988, before the miners returned underground. 3

In

Daisley testified that, apart from Mantini, no other R&P employee was
negligent in connection with the violations and no member of mine
management was aware of any violative conduct prior to July 13, 1988. The
Secretary proposed civil penalties of $1,100 for each violation. MSHA also
conducted an investigation of Mantini's role in the incident pursuant to
section llO(c) of the Mine Act, 30 U.S.C. § 820(c). MSHA apparently
concluded that Mantini had falsified the examination records. Tr. 64.
However, MSHA did not take any enforcement action against Mantini
individually. Tr. 55. The record suggests that R&P may have suspended
Mantini for misconduct. Tr. 35-36.
At the hearing, R&P did not challenge the proposition that the Mine
Act imposes liability without regard to fault for violations of the Act.
As noted at the outset, R&P also conceded at least a recording violation in
both instances. R&P did challenge, however, the inspector's findings of
high negligence and unwarrantable failure as well as the penalties proposed
by the Secretary. R&P argued that a rank-and-file miner's negligent or
willful conduct may not be imputed to an operator for the purpose of making
unwarrantable failure findings. R&P asserted that, in light of its own
lack of negligence, the unwarrantable failure finding could not be
supported and urged modification of the section 104(d)(2) orders to
citations issued pursuant to section 104(a) of the Mine Act, 30 U.S.C.
§ 814(a).
The Secretary contended that Mantini was an agent of the operator,
not merely a rank-and-file employee, when he was acting as mine examiner.
The Secretary argued that Mantini's willful and aggravated conduct was,
therefore, properly imputable to the operator.
In his decision, the judge found that the required examinations were
not in fact made and affirmed the violations of section 75.305. 11 FMSHRC
at 1981. He also found that the violations were S&S. Id. However, the
judge vacated the unwarrantable failure findings associated with the
inspector's orders, concluding that the record established R&P's negligence
to be "nil." 11 FMSHRC at 1983. He determined that a rank-and-file
miner's intentional misconduct is not per"se imputable to the operator
simply because the operator had appointed him as mine examiner. He further
concluded that for unwarrantable findings, the requisite "aggravated
conduct" must be the operator's own conduct. 11 FMSHRC at 1981-83. The
judge reasoned:
3

Under section 75. 305, "weekly examinations need not be made during any
week in which the mine is idle for the entire week except that such
eYamination shall be made before any other miner returns to the mine." R&P
does not dispute that the examinations on July 6 and 7, 1988, were required to
be made.

192

In this case, Mantini's misconduct was
willful and intentional. He did not perform the
required examinations, he knew he did not, and yet
he certified in the operator's official records
that he had performed them. I have a lot of
trouble with the idea that a rank-and-file
employee's intentional misconduct is imputable to
management as their own "aggravated conduct" when
there is absolutely no evidence in the record that
any member of mine management actually knew or even
should have known that the examinations were not
done ....
11 FMSHRC at 1982.
The judge modified the section 104(d)(2) orders to section 104(a)
citations. 11 FMSHRC at 1983. Citing Southern Ohio Coal Co., 4 FMSHRC
1459, 1463-65 (August 1982) ("SOCCO"), the judge found that, for penalty
assessment purposes, rank-and-file employee negligence was not imputable to
the operator, that the operator's negligence was to be determined by an
examination of the operator's own conduct, and, as noted, that the
operator's negligence was "nil.
Id. The judge reduced the penalties from
the $1,100 proposed by the Secretary for each violation to $450 for each
violation. Id.
11

The Commission granted the Secretary's subsequent petition for
discretionary review, which challenged only the judge's determination that
there was no unwarrantable failure on the part of the operator. We heard
oral argument in the matter, and now reverse.
II.

Disposition of Issues
On review, there is no dispute that Mantini engaged in intentional
misconduct in failing to perform the required weekly examinations. The
question before us is whether the judge erred in not imputing that
misconduct to R&P in assessing whether it had unwarra,ntably failed to
comply with 30 C.F.R. § 75.305.
addre~sing this question, three issues
are presented: (A) whether intentional misconduct is within the scope of
unwarrantable failure under the Mine Act; (B) whether Mantini, a rank-andfile employee acting as a mine examiner, was an agent of R&P in that
capacity; and (C) if so, whether his misconduct was within the scope of his
authority and, hence, imputable to R&F as principal.
A.

Scope of unwarrantable failure

The special finding of unwarrantable failure, as set forth in section
104(d) of the Mine Act, 30 U.S.C. § 814(d), may be made by authorized
Secretarial representatives in issuing citations and withdrawal orders
pursuant to section 104. In Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987), and Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010

193

(December 1987), the Commission defined unwarrantable failure as
"aggravated conduct constituting more than ordinary negligence by a mine
operator in relation to a violation of the Act." Emery examined the
meaning of unwarrantable failure and referred to it in such terms as
"indifference," "willful intent," "serious lack of reasonable care," and
"knowing violation." 9 FMSHRC at 2003. In Eme:r:y, the Commission also
pointed out that in Eastern Associated Coal Co., 3 IBMA 331 (1974), the
Interior Board of Mine Operations Appeals ("Board") had defined
unwarrantable failure as "intentional or knowing failure to comply or
reckless disregard for the health and safety of miners." 9 FMSHRC 2003,
citing Eastern, 3 IBMA at 356 n.5 (emphasis added).
Intent~onal misconduct, whether by commission or omission, is similar
in terms of culpability to the kinds of indifferent, willful, or knowing
behavior adverted to in Emery. From the perspective of plain meaning,
intentional misconduct is "aggravated conduct." Eastern, cited in Emery,
includes intentional failure to comply within the scope of unwarrantable
failure.
Accordingly, we conclude that intentional misconduct is a form
of unwarrantable failure for purposes of the Mine Act.

B.

Mantini's status as R&P's agent

In SOCCO, the Commission held, in relevant part, that the negligence
of an operator's agents may be imputed to the operator for civil penalty
purposes. 4 FMSHRC at 1463-64. Similarly, an agent's conduct may be
imputed to the operator for unwarrantable failure purposes.
On review, R&P states that Mantini, notwithstanding his status as a
rank-and-file miner, was "arguably" charged with responsibility for the
operation of part of a mine and, hence, was R&P's agent within the meaning
of the Mine Act's definition of "agent" (see below). R&P Br. at 6. See
also Tr. Oral Arg. 17. However, in R&P's view, the determinative question
in this case is "when does an agent cease to be an agent." R&P Br. at 6.
R&P argues that because Mantini's intentional misconduct in failing to
carry out the weekly examinations was outside the "scope of his authority"
as an agent, his actions were not imputable to R&P. While the scope of
authority issue is the focus of the parties' arguments on review, we deem
it advisable to clarify the principal-agent relation9hip between an
operator and those miners it charges with., the resp6nsibility of carrying
out the examinations required under the Mine Act. Based on the language of
the Mine Act and settled principles of the common law of agency, we have no
difficulty concluding that a rank-and-file employee like Mantini is the
agent of an operator when carrying out the required examinations entrusted
to him by the operator.
Section 3(e) of the Min~ Act provides in relevant part that "'agent'
means any person charged with responsibility for the operation of all or a
part of a coal or other mine .... " We concur with R&P (R&P Br. at 6) that,
in carrying out such required examination duties for an operator, an
examiner like Mantini may appropriately be viewed as being "charged with
responsibility for the operation of ... part of a mine," and, therefore,
the examiner constitutes the operator's agent for that purpose.

194

Further, while the common law meaning of agent may be distinguished
technically from the Mine Act's definition of the term, there is no
substantive inconsistency between the two. The Commission has previously
employed both the Act's definition and common law principles in resolving
agency problems (see, ~' Wilfred Bryant v. Dingess Mine Service, 10
FMSHRC 1173, 1178-80 (September 1988), aff'd sub nom. Winchester Coals v.
FMSHRC, No. 89-334 (4th Cir. May 10, 1990)), and we find it appropriate to
do so here as well. Generally, an agent is one who is authorized by
another, the principal, to act on the other's behalf. See, ~' Black's
Law Dictionary 59 (5th ed. 1979)("Black's"); Johnson v. Bechtel Associates
Profes'l Corp., 717 F.2d 574, 579 (D.C. Cir. 1983). The Restatement
(Second) of Agency (1958)("Restatement") indicates that the essential
feature of the principal-agent relationship is that the agent has authority
to represent his principal with third parties in dealings that affect the
principal's legal rights and obligations. Restatement, § 10. Within the
plain meaning of these common law concepts, we conclude that when R&P
assigned Mantini the statutorily mandated responsibility of an operator to
conduct and record the weekly mine examination required under section
75.305, Mantini became an agent of R&P for that purpose.
In this regard, Pocahontas Fuel Co., 8 IBMA 136, 146-48 (1977), aff'd
sub nom. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979), is
instructive. There, the Board concluded that a rank-and-file miner, who
was responsible for conducting a required preshift examination, was an
agent of the operator, and that the miner's failure to detect a violative
condition could properly be imputed to the operator for unwarrantable
failure purposes. 4 In Pocahontas, the operator argued that its
designated preshift examiner was a rank-and-file employee and member of the
UMWA and, hence, not a "management employee," nor "the company," and that,
accordingly, the examiner's failure ought not be attributed to the
operator. In concluding that the preshift examiner was an agent of the
operator, the Board emphasized that the preshift examination was a
statutorily mandated duty of the operator and had been delegated by the
operator to the rank-and-file employee. 8 IBMA at 147-49. The Board
stated that the statute made clear that Congress had recognized that the
preshift examination was a most important function in the operation of a
coal mine. The Board noted that the Act went into lengthy detail regarding
the areas required to be inspected and the procedures to be followed as
part of the preshift examination and that the statute' further required the
operator to "designat[e]" a "certified person" to conduct the examination.
8 IBMA at 147. The Board observed that although the duties delegated to
the preshift examiner were the kind of duties "that one might expect an
employer more normally to delegate to management personnel," it was
4

Pocahontas arose under the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). The preshift
examination involved in Pocahontas was required by section 303(d)(l) of the
Coal Act (30 U.S.C. § 823(d)(l) (1976) and the parallel standard at 30 C.F.R.
§ 75.303(a)(l975). Both section 303(d)(l) of the Coal Act and 30 C.F.R.
§ 75.303(a) have been carried over unchanged as section 303(d)(l) of the Mine
Act and 30 C.F.R. § 75.303(a)(l990).

195

undisputed that the operator had delegated those duties to a rank-and-file
miner. 8 IBMA at 148. The Board clearly recognized that whether a person
is an agent does not necessarily depend on the individual's status as a
supervisor but, rather, on his authority to act on behalf of the principal.
We find that all of the foregoing considerations relied on by the Board in
Pocahontas with respect to preshift examinations by a rank-and-file miner
apply with equal force to the weekly shift examinations involved in the
present case.
Accordingly, we hold that Mantini, although a rank-and-file miner,
was an agent of R&P for the purpose of conducting the weekly .examination.
See generally Pocahontas, 8 IBMA at 146-49; cf. SOCCO, 4 FMSHRC at 1464.
C. Scope of Mantini's authority
If Mantini's violative conduct was within the "scope" of his
employment or authority as an agent, then it may be imputed to R&P for
purposes of an unwarrantable failure finding.
A leading commentary on the law of torts makes clear that "scope of
employment" is both a broad and flexible concept:
It is ... a bare formula to cover the
unordered and unauthorized acts of the servant for
which it is found to be expedient to charge the
master with liability, as well as to exclude other
acts for which it is not. It refers to those acts
which are so closely connected with what the
servant is employed to do, and so fairly and
reasonably incidental to it, that they may be
regarded as methods, even though quite improper
ones, of carrying out the objectives of the
employment.

*

*

*

The fact that the servant's act is expressly
forbidden by the master, or is done in a manner
which he has prohibited, is to be consi.dered in
determining what the servant has been hired to do,
but it is usually not conclusive, and does not in
itself prevent the act from being within the scope
of employment. A master cannot escape liability
merely by ordering his servant to act carefully.
If he could, no doubt few employers would ever be
held liable ....
Prosser & Keeton, Torts, § 70 (p. 502)(5th ed. 1984).
Restatement, § 228.
Under common law concepts of agency, generally it is not necessary to
show that the principal (master) authorized or permitted the agent's

196

(servant's) particular injury-causing conduct in order for that conduct to
be viewed as lying within the scope of the agent's duties and employment.
See, ~, Restatement § 232. Unauthorized acts of misconduct, including
the failure to act, may be within the agent's scope of employment. The
principal's express prohibition of an agent's act does not necessarily bar
a finding that the misconduct was within the agent's scope of employment.
A principal is liable even for the deceit of its agent, if that deceit was
committed in the business that the agent was appointed to carry out. This
holds even when the agent's specific conduct is carried out without the
knowledge of the principal . .!L_g_._, CFTC v. Premex. Inc., 655 F.2d 779, 784
n.10 (7th Cir. 1981). The fraud of an agent may also be imputed to the
principal when an agent is executing a transaction within the scope of his
authority. In re Nelson, 761F.2d1320, 1322 (9th Cir. 1985). See also
Restatement, §§ 257, 282.
Applying these principles, we conclude that Mantini's intentional
misconduct was within the scope of his employment and, accordingly, was
imputable to R&P for unwarrantable failure purposes. There is no question
that Mantini was delegated the duty and was entrusted with the responsibility of the section 75.305 weekly examinations and recordings. Mantini s
authority to perform those tasks is undisputed. As noted above, even if
Mantini's conduct is characterized as deceit or fraud, that in itself would
not necessarily bar its imputation to R&P. His actions were taken in
relation to that duty: they were not separate actions unrelated to his
entrusted responsibility. Moreover, we must not lose sight of the fact
that statutorily mandated operator safety examinations are involved here.
R&F, as the operator, had the absolute duty to ensure that these examinations were made, and Mantini must be considered R&F's agent acting within
the scope of his authority with respect to that duty, since he was the
individual assigned by R&P to discharge that duty. See Restatement,
§ 214; 53 Am. Jur. 2d, Master and Servant, §§ 313, 322, 323.
Thus, we reject R&P's contentions that Mantini's intentional
misconduct was outside the scope of his authority. Under settled
principles of agency law and in the context of the Mine Act, we hold that
Mantini was R&P's agent for purposes of the examinations and that the
manner in which he transacted that delegated statutory duty was within the
scope of his authority. Accordingly, his misconduct is properly imputable
to R&F for unwarrantable failure purposes.
D. Other contentions
We also reject R&F's other contentions. R&F argues that the
Commission should apply the doctrine first enunciated in SOCCO, 4 FMSHRC at
1464; that the negligence of a rank-and-file miner is not imputed to an
operator for penalty purposes if, among other things, the operator has
taken reasonable steps to prevent the rank-and-file miner's violative
conduct. Accord: A.H. Smith Stone Co., 5 FMSHRC 13, 15 (January 1983).
However, as already discussed, the Commission also stated in SOCCO that the
negligence of an operator's agents may be imputed to the operator.
4 FMSHRC at 1464. Even though Mantini was a rank-and-file miner, he was an
agent of R&P for examination purposes and, as we have held, his unwarran-

197

table conduct is properly imputable.
R&P also points to the Commission's decision in Nacco Mining Co.,
3 FMSHRC 848, 850 (April 1981), in which the Commission declined to impute
the negligence of a supervisor to the operator if two general conditions
were met: (1) the operator had taken reasonable steps to avoid the kind of
accident in question; and (2) no other miners were put at risk by the
supervisor's conduct. Here, the judge found, and R&P does not contest on
review, that both of the violations put other miners at serious risk.
11 FMSHRC at 1981. Thus, the Nacco exception does not apply in this case.
R&P has not advanced, nor do we perceive under the facts of this case, any
convincing reasons why Nacco should be expanded to include unwarrantable
failure. As we have emphasized, weekly mine examinations are critical to
mine safety and the failure to conduct such examinations may put many
miners at risk.
R&P argues further that imputation of intentional misconduct to the
operator frustrates the purposes of the Mine Act. However, the Act has
been construed to contain a deliberate scheme of vicarious liability of
operators for violations committed by their employees. Western Fuels-Utah,
Inc., 10 FMSHRC 256 (March 1988), aff'd, 870 F.2d 711 (D.C. Cir. 1989).
The goal of this liability scheme is "to promote the highest degree of
operator care." Western Fuels-Utah, 10 FMSHRC at 261. Although it may be
extremely difficult to prevent intentional misconduct on the part of
employees, R&P's argument that "Mr. Mantini's intentional misconduct is of
a nature that is impossible to prevent" is not pJausible. The liability
scheme of the Mine Act is designed to give employers the strongest
incentives to select, train, monitor, and discipline their employees in
ways that will result in enhanced mine health and safety. The Act furthers
that goal in addition by providing civil and criminal penalties against
individuals for knowing violations (section llO(c), 30 U.S.C. § 820(c)) or
false statements (section llO(f), 30 U.S.C. § 820(f)). Any appeal to
change that scheme must be directed, not to the Commission, but to
Congress.
Finally, as noted above, an agent's violative conduct is imputable to
the operator for negligence purposes. SOCCO, 4 FMSijRC at 1463-65. In view
of our finding that Mantini' s misconduct..was impufable to R&P for
unwarrantable failure purposes, the judge's failure to consider Mantini's
violative conduct for negligence purposes was error. Although the terms
"unwarrantable failure" and "negligence" are not used synonymously in the
Mine Act, the same or similar factual circumstances may be included in the
Commission's consideration of both. See,~. Quinland Coals, Inc., 9
FMSHRC 1614, 1622 (September 1987).

198

III.

Conclusion
For the foregoing reasons, we reverse the judge's determination that
the violation did not result from R&P's unwarrantable failure. In view of
our finding that Mantini was R&P's agent, acting within the scope of his
authority, the judge's failure to consider Mantini' s vio.lative conduct in
determining negligence was also erroneous. Accordingly, we remand this
matter for reconsideration of the appropriate civil penalty. In light of
our conclusions, the section 104(a) citations should be converted to the
originally issued section 104(d)(2) withdrawal orders.

~&vie~

Richard V. Backley, Acting Chairman

L.

Clair Nelson, Commissioner

Distribution
Joseph A. Yuhas, Esq.
Greenwich Collieries
P.O. Box 367
Ebensburg, Pennsylvania

15931

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Haurer
Federal i1ine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

199

200

ADMINISTRATIVE LAW JUDGE DECISIONS

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

FEB 7 ·1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-45-M
A.C. No. 16-01064-05513

v.
Petty Pit A
B & B GRAVEL COMPANY, INC.,
Respondent

DECISION
Appearances~

Sara D. Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for the
Petitioner;
Wallace Heck, Jr., Vice-President, B & B Gravel
Company, Inc., Baton Rouge, Louisiana, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
three alleged violations of certain mandatory-s'afety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed an answer contesting the alleged violations, and
pursuant to notice, a hepring was convened in Baton Rouge,
Louisiana, and the parties appeared for trial. However, after a
brief pretrial conference, the parties informed me that they
reached a proposed settlement of the case. The citations,
initial proposed civil penalty assessments, and the proposed
settlement amounts are as follows:
citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

3270896
3270897
3270898

11/03/89
11/03/89
11/03/89

56.12008
56.12008
56.4101

$213
$ 20
$ 20

$ 86
$ 20
$ 20

201

Discussion
Section 104(a) "S&S" Citation No. 3270896, November 3, 1989,
cites a violation of 30 C.F.R. § 56.12008, and the cited condition or practice states as follows: "The electrical conductors
to the water pump did.not have proper fittings where the conductors entered the switch box."
Section 104(a) non-"S&S" Citation No. 3270897, November 3,
1989, cites a violation of 30 C.F.R. § 56.12008, and the cited
condition or practice states as follows: "The electrical conductors to the sizing screen motor did not have the proper fittings
and bushings wJ.1ere the conductors enter the motor splice box.vu
Section 104(a) non-"S&S" Citation Nao 3270898, November 3u
1989, cites a violation of 30 C.F.R. § 56.4101, and the cited
condition or practice states as follows: "The fuel storage tank
aboard the dredge does not have visible signs prohibiting smoking
or open flames in the area. 11
The inspector established an abatement time of 8:00 a.m.,
November 17, 1989, for each of the citations. However, he
subsequently terminated the citations on November 27 1 1989, and
the termination notices state as follows: "The dredging operation was shut down on 11-14-89, and the operator is moving the
equipment to a different location for storageo Citation
No. 3270896 is terminated by this action. 11
The parties agreed that the respondent is a large sand and
gravel mine operator, with an annual production of 250,000 tons,
and 12 employees. With regard to the particular pit operation
where the citations were issued, the parties agreed that it was a
small operation with approximately three employees. The evidence
establishes that the pit was subsequently clo~ed shortly after
the citations were issued (Tr. 11-12).
In support of the proposed settlement of this matter, the
Solicitor asserted that at the time the citations were issued on
November 3, 1989, the respondent was in the process of closing
down its pit operations and moving to a new location. The
Solicitor stated that since its move to a new location, the
respondent has shown an improvement in its electrical equipment
and has attempted to stay in compliance with the requirements of
the electrical standards.
MSHA Inspector James Bu~sell, stated that at the time of his
inspection of November 3, 1989, the respondent was in the process
of closing the pit and moving its equipment to another location.
He further stated that the old pit was in fact closed on
November 14, 1989, and that he subsequently terminated the
citations on November 27, 1989. He confirmed that when he issued
the citations he was aware of the fact that the respondent was in

202

the process of closing its .old pit and was moving its equipment
to another location. He further confirmed that he scheduled the
abatement time of November 17, 1989, in order to allow the
respondent sufficient time to complete its move.
With regard to Citation No. 3270896, concerning the water
pump fittings, Inspector Bussell stated that the cited pump in
question was located in the plant operator•·s compartment and the
operator would have been exposed to a potential hazard. He
identified photographic exhibits G-1 and G-2 as the switch box in
question (Tr. 15-16).
With regard to citation No. 3270897, Inspector Bussell
stated that he issued it as a non-S&S citation because the motor
in question was· installed at an elevated location out of reach of
anyone and there was no hazard exposure (exhibit G-4)o
With regard to Citation No9 3270898u concerning the absence
of a visible sign prohibiting smoking and open flamesg the
inspector stated that he observed some diesel fuel spillage on
the dredge dock and issued the citation to alert the respondent
to this condition. He confirmed that no visible sign was posted
on the diesel fuel storage tank.
The respondent 1 s representativeu Wallace Heck, Jrou company
Vice-President, stated that the respondent has always tried to
comply with the applicable mandatory standards but has experi=
enced some difficulty in communicating with the inspectors with
respect to precisely what is required of him for compliance.
With regard to the absence of the cited sign, Mr. Heck asserted
that a warning sign had originally been painted on the fuel
storage tank but that it was obscured over time by diesel fuel.
He also asserted that the fuel tank was not physically located on
the dredge, but was installed on a rack at the rear of the dredge
which placed the tank over the water and not the dredge. He
further indicated that the dredge operator's compartment was
located at the other end of the dredge (Tr. 19-20).
Mr. Heck further stated that t~~ cited water pump was
installed 5-years prior to the citation issued by Mr. Bussell,
and that the dredging operation had previously been inspected
numerous times prior to the inspection in question. I take note
of Mr. Heck's answer of July 9, 1990, in this case, in which he
states that no accident was likely because he was in the process
of disconnecting and moving the equipment, and that no accidents
have ever occurred at this ·operation.
Inspector Bussell confirmed that the inspection which he
conducted on November 3, 1989, was his first inspection at the
dredging operation in question. He further confirmed his "moderate" negligence findings with respect to each of the cited
conditions (Tr. 17).

203

The pleadings filed by the petitioner include a copy of
MSHA's Proposed Assessment Form 1000-179, which reflects that 27
prior citations were issued to the respondent during the course
of 14 inspections which took place over a 24-month period prior
to November 3, 1989. However,.there is no evidence that any of
these prior violations were for violations of sections 56.12008
or 56.4101.
Conclusion
After careful consideration of the arguments presented in
support of the proposed settlement disposition of this matter,
and pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the
proposed settlement was approved from the bench. My bench
decision approving the settlement is herein reaffirmed, and I
conclude and find that it is reasonable and in the public
interest.
ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the settlement amounts shown above in satisfaction of the
citations in question. Payment is to be made to MSHA within
thirty (30) days of the date of this decision and order" Upon
receipt of payment, this matter is dismissed.

kKfltr~
Administrative Law Judge

Distribution:
Sara D. Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Wallace Heck, Jr., Mr. Raymond ..E. Heck~ B & B Gravel Company,
Inc., 5415 Choctaw Drive, Baton Rouge, LA 70805 (Certified Mail)
/fb

204

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

22041

FEB 7 1991
CONTEST PROCEEDINGS

BETHENERGY MINES, INC.,
Contestant
v.

Docket No. PENN 90-206-R
Citation No. 3099370;
6/15/90

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

Docket No. PENN 90-207-R
Citation No. 3099371t
6/15/90
Somerset Portal/84 complex
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 91-52
A.C. No. 36-00958-03847

v.
Mine No. 84
BETHENERGY MINES, INC.,
Respondent
DECISION

Appearances:

Before:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor {Secretary) ;
R. Henry Moore, Esq., sµchanan Ingersoll,
Pittsburgh, ~ennsylvania, for Bethenergy Mines,
Inc. (Bethenergy)

Judge Broderick

The above cases were consolidated because the citations
contested in the contest proceedings were included in the
citations for which the Secretary seeks penalties in the civil
penalty proceeding. Pursuant to notice, the cases were called
for hearing on January 29, 1991, in Pittsburgh, Pennsylvania.
The two contested citations, 3099370 and 3099371, charge
violations of 30 C.F.R. § 75.305 because return aircourses could
not be examined in their entirety as a result of roof falls
rendering the travelways impassible. At the hearing counsel for
the Secretary stated that further examination convinced the
Secretary that the cited areas were not return aircourses, and

205

therefore there were no violations of the standard as charged.
The Secretary moved to vacate the citations and to withdraw the
penalty petition with respect to these two citations.
Citation 3092556 charges a violation of 30 C.F.R. § 75.316
because co sensors were more than 1200 feet apart on the belt
entry in violation of the approved ventilation plan. The
violation was designated as significant and substantial. Further
investigation disclosed that co sensors were also located in the
parallel track entry. The track entry sensor was within 500 feet
of either sensor in the belt entry. For these reasons, the
Secretary moved to delete the significant and substantial
designation and to reduce the penalty from $275 to $175 which
Bethenergy has agreed to pay.
Based on the representations of counsel and considering the
criteria in section llO(i) of the Act, IT IS ORDERED~
1. Citations 3099370 and 3099371 are VACATED. The Notices
of Contest filed in Docket Nos. PENN 90-206-R and PENN 90-207-R
are GRANTED, and the proceedings are DISMISSED. The penalty
petition with respect to these citations is DENIED.
2o
Citation 3092556 is MODIFIED to delete the significant
and substantial designation andp as modifiedv is AFFIRMED"

3. Bethenergy shall, within 30 days of the date of this
decision pay the sum-of $175 for the violation charged in
citation 3092556.

/ Ifv l·

i

..,,
JA'

.'

i

'"
/.,

,:j//~· 'r~ 0.:...; 7 (; './!;(_

//' James A. Broderick
.:/ Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 58th Floor, 600
Grant Street, Pittsburgh, PA 15219 (Certified Mail)
Anita Eve, Esq., Joseph Crawford, Esq., U.S. Department of Labor,
Office of the Solicitor, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
slk

206

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

f EB 7 1991
Ronny Boswell,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. SE 90-112-DM

National Cement Company,
Respondent

SE MD 90-04
Ragland Plant
DECISION

Appearances:

Mr. Larry G. Myers, Union Representative,
Independent Workers of North America, Birmingham,
Alabama, for the Complainant~
Harry L. Hopkins, Esq., Lange, Simpson, Robinson &
Somerville, Birmingham, Alabama, for the
Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me based on a complaint filed by Ronny
Boswell, alleging a violation of section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (the Act).
Respondent filed an answer, and pursuant to notice, the case was
heard on September 5, 1990, in Birmingham, Alabama. At that
hearing, Boswell himself, as well as Gerald W. Bowman, James E.
Noah, and Gary R. Meads testified for the complainant. James
Allen and Cedric Phillips testified for the respondent.
Mr. Hopkins filed a post-trial brief on behalf of the respondent
which I have considered in making this decision; none was filed
by the complainant.
DISCUSSION
At all times relevant .to the complaint, Ronny Boswell worked
for respondent as a utility laborer, until the company
disqualified him from being such on January 11, 1990. Boswell
had held this position on three different occasions during his
fourteen years of employment with National Cement. He had been a
utility laborer this latest time since approximately 1982 and has
been a utility laborer for approximately ten of the fourteen
years of his tenure there.

207

Boswell became a payloader operator by some convoluted
process unimportant to the merits Qf this case upon his
disqualification as a utility laborer on January 11, 1990, and
has remained so to this day.
Complainant seeks the difference in pay between what he
would have received and what he did in fact receive as a result
of and since the disqualification. Additionally, he seeks reinstatement to the position of utility laborer.
The respondent stated five specific grounds for the
disqualification of Mr. Boswell from his position as a utility
laborer.
(Tr. :t.61, Resp. Ex. No. 1)
Q

The Kiln Incident of August 8, 1989
The incident began with two other men already inside the
kiln, tearing brick and coating down from overhead using fiberglass pry bars to pull it down, This was normal procedure for
two men at a time to go inside and pull the brick downo When it
gets too hot, they come out and two different men go in. There
are always two men at a time pulling down the brick, which comes
down in chunks weighing a hundred pounds and upwards. At the
same time, there were eight men, including the complainant and
Mr. Noah standing around out in front of the kilna
At this particular point in time, one of the new French
managers came upon this scene and inquired of their supervisor
why more men were not working inside the kiln. The men had never
before been asked to throw ·brick back up the kiln while people
were still pulling brick and coating down from overhead. But, on
this occasion, their supervisor, James Allen, prodded by the new
manager, wanted three more men, including complainant, to go in
there and throw brick that had already been pulled down back up
the hill while two other men continued to pull brick and coating
down around their heads.
The complainant refused and exercising his union contract
rights, called for a safety review •. However, he didn't get one.
The union safety representative came when called, but the company
man never showed up. The issue was resolved when the company
just let it go. The supervisor simply continued the work with
the usual procedure of having just the two men inside the kiln
while the brick was being pulled down. Only after all the brick
and coating was pulled down did they start cleaning it out, which
is the next phase of the job •.
Mr. Noah, who was on the scene at the time, concurred with
and corroborated the testimony of the complainant. He testified
that he informed Mr. Phillips, the Safety Director at the plant,
that if Boswell hadn't called for a safety review, he would have,
because it was unsafe to do what they were asked to do.

208

In any event, at the time, Boswell had an eye infection that
had been "acting-up" for the previous two or three weeks, and he
went home after four hours because his eye was hurting him and he
didn't want to get dust in it. His supervisor, Mr. Allen, gave
him permission to leave. Boswell also testified, unrebutted,
that they had plenty of men to do the job; they didn't have to
replace him.
Mr. Allen also testified about this incident. However, he
misidentifies it as occurring on December 22, 1989 (Tr. 92) and
states a widely differing version of the facts. For example, he
states that only one man was working inside the kiln, not two and
that they had already finished the pulling down phase of the work
at the time he asked Boswell and a couple more men to throw loose
brick up the kiln.
I make the necessary credibility finding in favor of the
complainant. His testimony is corroborated by Mr. Noah and to
some extent by Respondent's Exhibit No. lo Mr. Allen apparently
has some other incident in mind; perhaps the kiln incident of
December 22, 1989.
Mr. Allen did go on to concede, however, that if the
incident was as described by complainant and Noahv that would be
"totally unsafe 11
o

I therefore find that complainant did engage in protected
activity by refusing to perform work and asking for a "safety
review" related to the kiln incident of August 8, 1989. I also
find that the adverse action taken by the company (i.e.,
disqualification) was predicated at least in part on this
protected activity.
The Clay Shredder Incident of October l, 1989
Mr. Boswell was charged with refusing to operate the clay
shredder on October 1, 1989. He says because he had no knowledge
of how it worked nor had he ever had any trai~ing to operate it.
Initially, that strikes me as being a fairly reasonable
proposition. But, it turns out he didn't really refuse to
operate it, he refused to be responsible for it. When James
Allen asked him to operate it, he replied he didn't know how.
Allen offered to show him. They then got into some repartee back
and forth about who would be responsible if anything untoward
happened, etc. The upshot of the whole thing was Allen decided
it didn't need to be run after all and simply assigned Boswell to
do something else.
The next night, the same issue arose again. This time Allen
started the machine up for Boswell and he agreed to simply watch

209

it while it ran. This he did and Allen seemed satisfied with
that, at least at the time.
The complainant feels the .clay shredder is a dangerous piece
of equipment for which adequate training is essential to operate
it. Besides, he believes that operation of the clay shredder was
not a part of his job.
Basically, with regard to the entire clay shredder incident,
I don't find much in it for either side. Boswell performed,
albeit reluctantly, the task assigned by Allen to Allen's
satisfaction. Accordingly, I do not find any protected activity
herein related to this incident. Nor do I find any unprotected
justification for Boswell's disqualification.
The Radio Incident of October 22, 1989
This is another non-issue. Everybody at this point agrees
nothing happened on this date. Boswell was off work on this
particular date. Furthermore, Boswell testified that nothing
like this ever happened.
On the other hand, Supervisor Allen testified that whatever
date it was, it happened. When he tried to call Boswell on the
radio, he got no answer and so he went looking for him. When he
found him, he asked if he heard him calling on the radio.
Boswell said "no". Mr. Allen thereupon checked the radio and it
seemed to be working fine. The intimation being I suppose that
Boswell was "goofing off" and didn't want to answer the radio to
get assigned to some work detail.
Once again, I don't think this issue is going to do the
company any good. The only possible purpose its proof might
serve is to establish a legitimate cause for Boswell's
disqualification. However, the closest Mr. Allen was able to pin
this date down was "sometime in 1989 11 and then he didn't report
it to the company until January 11, 1990, when the company was
gathering ammunition to take action against Boswell. Therefore,
I find the proof that the incident p.appened~at all to be
extremely weak.
The Kiln Incident of December 22, 1989
On the day in question, Mr. Boswell had arrived on the job
four hours early and worked outside in the cold for the entire
time, including four hours of his regular shift, for a total of
eight hours. He testified it was very cold that particular day
and he had been having ear problems for a month or longer. His
ears had been bleeding. After eight hours outside, his ears were
hurting worse. He told Supervisor Allen that and was excused for
the day. That was the sum and substance of the entire episode

210

and I find this also to be a neutral situation.
nor hinders either side of the case.

It neither helps

The Bobcat and Wheelbarrow Incident of January 1. 1990
Supervisor Allen needed to get about three Bobcat 1/ buckets
full of 3-inch diameter alloy steel mill grinding balls out of
the mill basement, which area was accessed by a 20-30 degree
inclined ramp, strewn with loose clinker.
He first went out to talk to the first shift Bobcat
operator who was getting ready to leave. Allen asked him if he
could stay over and finish cleaning the balls up as he (Allen)
stated he needed it finished by morning. The man couldn't stay
for personal reasons and so Allen next turned to Boswello He
wanted Boswell to operate the Bobcat and finish cleaning up the
balls. Boswell objected-said he was afraid to and also stated
that it was unsafe for him to attempt to do so as he had no
training on the machine. He claims to have only operated this
Bobcat about 8 hours total time during his fourteen years with
the company and never up and down this ramp.
Boswell
acknowledges that other people do run the Bobcat down there to
clean-up the balls, but he states that they are trained and
qualified and they do it every dayo
Next, Allen told him that if he wouldn't run the Bobcatu
then take a wheelbarrow and go down there in the bottom of the
mill room and load these balls in it and push it up the inclined
ramp.
Boswell states you can't even walk up and down that ramp
without holding onto the side, much the less push a wheelbarrow
up it.
In any event, he refused to do it and instead, for the
second time in five months, called for a safety review. Once
again, he got no safety review. Supervisor Allen said "no, let
it go." He told Boswell to go get the bulldozer and push rock
and so he did for the balance of that shift.
DISCUSSION AND CONCLUSIONS
Respondent is of the view that-Boswell did not have a
reasonable, good faith belief that using the wheelbarrow in this
instance was unsafe. At the heart of the inquiry then is whether
this work refusal and request for a "safety review" rose to the
status of "protected activity" as that term is used in this
context.

1

A Bobcat is a relatively small machine with a scoop bucket
on the front that allows you to pick up material. It doesn't have
a steering wheel, but rather is steered with f oat and hand
controls. It requires good coordination and some getting used to
in order to properly operate it.

211

In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in ·any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511, (November 1981),
rev'd on other·grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity. If an operator cannot rebut the prima facie case in
this manner it may nevertheless affirmatively defend by proving
that it was also motivated by the miner 9 s unprotected activities
alone. The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935
(1982). The ultimate burden of persuasion does not shift from
the complainant. Robinette, supra. See also Baich v. FMSHRCv
719 F.2d 194 (6th Cir. 1983; and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specifically
approving the Commission 1 s Fasula-Robinette test}. See also NLRB
v. Transportation Management Corporation, 462 U.S. 393, 76
L.Ed.2d 667 (1983), where the Supreme Court approved the NLRB 1 s
virtually identical analysis for discrimination cases arising
under the National Labor Relations Act.
Generally, refusal to work cases turn on the miner's belief
that a hazard exists, so long as that belief is held in good
faith and is a reasonable one. Secretary ex rel. Bush v. Union
Carbide Corp., 5 FMSHRC 993, 997 (1983); Miller v. FMSHRC, 687
F.2d 1984 (7th Cir. 1982). ·
In analyzing whether a miner's belief is reasonable, the
hazardous condition must be viewed f,rom the -miner 1 s perspective
at the time of the work refusal, and the miner need not
objectively prove that an actual hazard existed. Secretary ex
rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 (June
1983); Secretary ex rel. Pratt v. River Hurricane Coal Co. 5
FMSHRC 1529, 1533-34 (September 1983); Haro v. Magma Copper Co.,
4 FMSHRC 1935, 1944 (November 1982); Robinette, supra , 3 FMSHRC
at 810. The Commission has also explained that "[g]ood faith
belief simply means honest belief that a hazard exists."
Robinette, supra at 810.
Thus, the principal question for decision here is did
Boswell reasonably and in good faith believe that he was going to

212

be required to operate a piece of equipment or perform some job
which was deleterious to his personal safety.
With regard to the kiln incident of August 8, 1989, there
can be no doubt that Boswell's ·refusal to work as directed and
his request for a "safety review" were both made in good faith
and eminently reasonable. The work he was requested to perform
was patently unsafe.
The Bobcat and wheelbarrow,incident is a closer call, but I
find his refusal to work in this instance and his request for a
safety review to be protected activity also. He had very limited
experience operating the Bobcat and none operating it on a twenty
degree slope. He therefore felt it would be unsafe for him to do
so in this instance and I cannot fault him for that. It would
seem to me that if the company needs trained and experienced
Bobcat operators on each shift that it would be more prudent to
train sufficient personnel to meet their needs rather then
attempt to press untrained and inexperienced operators into
service as a stop-gap measure. As for the wheelbarrow
alternative Boswell was presented with, although respondent
claims it is possible, and in fact Mr. Allen claims to have
personally run a wheelbarrow up and down that particular inclinep
Boswell didn't think it could be done safely and he called for a
safety review. We don't know what would have happened had a
safety review been accomplished because, as is the usual
practice, the supervisor simply sent the requester off somewhere
else to perform some other task. This Boswell apparently did to
the operator's satisfaction.
Mr. Boswell was not made aware that any of these incidents
involving he and James Allen were going to result in disciplinary
action until January 11, 1990, when they told him they were
disqualifying him off his job for going home sick twice, calling
the two safety reviews and not answering the radio once (as it
turns out on a day he wasn't even at work).
Accordingly, I conclude that the complainant engaged in
protected activity on August 8, 1989,, and again on January 1,
1990. Furthermore, the disqualification from his position as a
utility laborer was motivated at least in major part by that
protected activity. Therefore, I find and conclude that Boswell
was discriminated against in violation of section 105(c) of the
Mine Act.
In resolving the issues herein presented I was also guided
in part by the Legislative History of the Act which embodies
Congress' intent in enacting the Mine Act. The Senate Report, on
the Senate version of the bill that became the Act, (S. Rep. No.
95-181, 95th Cong. 2d Sess. 1977, reprinted in the Legislative
History of the Federal Mine Safety and Health Act of 1977 at 623

213

("Legislative History"), contains the following language relating
to the protection of miners against discrimination:
If our national mine safety and health program is to be
truly effective, mine~s will have to play an active
part in the enforcement of the Act. The Committee is
cognizant that if miners are to be encouraged to be
active in matters of safety and health, they must be
protected against any possible discrimination which
they might suffer as a result of their participation.
I also found instructive the following language from the
Senate Report, supra, (Legislative History at 623)g
The committee intends that the scope of the
protected activities be broadly interpreted by the
Secretary, and intends it to include not only the
filing of complaints seeking inspection under Section
l04(f) or the participation in mine inspections under
Section 104(e), but also the refusal to work in
conditions which are believed to be unsafe or
unhealthful and the refusal to comply with orders which
are violative of the Act or any standard promulgated
thereunder, or the participation by a miner or his
representative in any administrative and judicial
proceeding under the Act.
The Senate Report, supra, (Legislative History at 624)
explicitly indicates that Section 105(c), was intended by the
committee:
(T]o be construed expansively to assure that miners
will not be inhibited in any way in exercising any
rights afforded by the legislation. This section is
intended to give miners, their representatives, and
applicants, the right to refuse to work in conditions
they believe to be unsafe or unhealthful and to refuse
to comply if their employers order them to violate a
safety and health standard promulgated under the law.
REMEDIES
Turning now to the complainant's remedies, I find that for
1990 as of August 29, 1990, complainant was financially better
off in the job he was sent into on January 11 then he would have
been had he remained in the job he was disqualified from.
Boswell, as of August 29, 1990, has earned $28,640.26 for 1552
hours worked as a payloader operator. The man who took over his
job as a utility laborer, Meads, earned $27,720.72 for 1496 hours
during the same time period. In other words, Boswell earned
$919.54 more as a payloader operator then he would have earned as
a utility laborer for 56 more hours of work. Therefore, I find

214

that Mr. Boswell is not due and owing any back pay from
respondent as a result of his discriminatory disqualification
from his utility laborer position.
He is, however, entitled to be reinstated to the position of
utility laborer and to have his personnel file purged of any
derogatory information pertaining to that disqualification. It
will be so ordered.
ORDER
WHEREFORE IT IS ORDERED THAT:
1. Respondent shall, within 30 days of this decision,

reinstate Complainant to the same position, pay, assignmentv
and with all other conditions and benefits of employment
that he would have had if he had not been disqualified from
his previous position as a utility laborer on January llff
1990, with no break in service concerning any employment
benefit or purpose.
The personnel records maintained in Mr. Boswell's
file shall be completely expunged of all information
relating to the January 11, 1990 disqualification"
2.

Law Judge
Distribution:
Mr. Ronny Boswell, P.O. Box 177, Wattsville~ AL
(Certified Mail)

35182

Harry L. Hopkins, Esq., Lange, Simpson, Robinson & Somerville,
1700 First Alabama Bank Building, Birmingham, AL 35203
(Certified Mail)
Mr. Larry G. Myers, Administrative Vice President, Independent
Workers of North America, 229 Roebuck Plaza, Suite 203,
Birmingham, AL 35206 (Certified Mail)
/ml

215

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

FEB 7 1991
LOCAL UNION 9909, DISTRICT 31,
UNITED MINE WORKERS
OF AMERICA, (UMWA),
Complainants
v.

COMPENSATION PROCEEDING
Docket No. WEVA 90-74-C
Loveridge No. 22 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras

The complainants have filed a motion to dismiss this
proceeding on the ground that the complaining miners have been
paid the compensation due in accordance with a settlement reached
by the parties. Under the circumstances, the motion IS GRANTED,
and this matter IS DISMISSED.

4.K&~
Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, (UMWA),
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421
(Certified Mail)
/fb

216

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

FEB 7 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-5
A.C. No. 46-07204-03514

v.
Flatbush No. 1 Mine
BENTLEY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

On January 30 1 1991, the Secretary of Labor, on behalf of
the parties to this action, filed a motion to approve the
settlement negotiated between them. At issue in this case are
three citations, originally assessed at $10,500 in the aggregate.
Settlement is proposed at $8,750.
citation No. 3110495 was issued for a violation of 30 C.F.R.
77.1605(1) on November 14, 1989. A fatal accident had occurred
on November 9, 1989, when a rock truck backed off an elevated
roadway and fell fifty {50) feet into a water-filled pit.
Immediately before the accident occurred, the driver ha~ been
attempting to dump a load of overburden at a location where none
of the protective measures described in the cited mandatory
standard had been provided. The Solicitor repr,esents that the
operator's negligence was moderate an,~ the gravity very serious.
The Secretary proposed a penalty of $5,000 for this violation and
the respondent has agreed to pay this amount in full.
§

citation No. 3110496 was issued for a violation of 30 C.F.R.
77.1605(k), which requires berms or guards to be provided on
the outer banks of elevated roadways. It was originally thought
that this violation also contributed to the fatal accident herein
before described, but it now appears to the Secretary that the
failure to have berms or guards along the roadway did not
contribute to the accident. Nevertheless, the Solicitor again
represents that the operator's negligence was moderate and the
violation serious. The Secretary originally proposed a penalty
of $4000 for this violation, but the parties now wish to settle
for the payment of $2,750.
§

§

citation No. 3110497 was issued for a violation of 30 C.F.R.
77.1713 which relates to an inadequate preshift/onshift

217

examination for the hazardous conditions alluded to above. The
Solicitor asserts that the mine operator's negligence was again
moderate and the gravity serious. The parties seek a reduction
in the proposed penalty from $1500 to $1000.
In support of the proposed settlement, the Solicitor states
that the parties have discussed the alleged violations and the
six statutory criteria stated in section llO(i) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(i), and that
the circumstances presented warrant the reduction in the original
civil penalty assessments for the violations in question.
Further, he has submitted a detailed discussion and disclosure as
to the facts and circumstances surrounding the issuance of the
citations as well as a full explanation and justification for the
proposed reductions.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement is appropriate under the criteria set forth in section
llO(i) of the Act.
WHEREFORE, the hearing scheduled for Wednesday, February 20,
1991, in Elkins, West Virginia, is CANCELLED, the motion for

approval of settlement is GRANTED, and it is ORDERED that
respondent pay a penalty of $8,750 within 30 days of this
decision.

urer
ative Law Judge
Distribution:
Ronald E. Gurka, Esq., Office of the Solicitqr, U.S. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
,
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322 (Certified Mail)
/ml

218

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

22041

FEB 7· · 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 90-9-M
A. C. No. 30-02184-05502
Mayfield

& Plant

HERBA SAND & GRAVEL,
Respondent
DECISION

Appearances:

William Go Staton, Esq., Office of the Solicitor,
u. s. Department of Labor, New York, New York, for
the Secretary;
Mr. Ed Herba, Jr., owner, Herba Sand & Gravel,
Gloversville, New York, for Respondent.

Before:

Judge Weisberger

Statement of the Case
In this Civil Penalty Proceeding, the Secretary
(Petitioner), seeks the imposition of a civil penalty for an
alleged violation by the Operator (Respondent) of 30 C.F.R.
§ 56.1410l(a)(3).
Pursuant to notice, a hearing was held in this
matter on January 23, 1991, in Albany, New York. John Montgomery
II testified for Petitioner, and Edward F. Herba, Jr. testified
for Respondent.
Findings of Fact and Discussion

I.
On October 5, 1989, John Montgomery, an inspector employed
by the Mine Safety and Health Administration, while inspecting
Respondent 1 s operation, observed a Euclid haul truck while it was
backing up to a dump point. Montgomery testified that it
appeared that the truck did not have adequate brakes. He said
that he spoke to the driver, Art Thompson, who told him that the
parking brakes would not hold the truck. Montgomery testified,
in essence, that Thompson further told him that the only way he
is able to hold the truck on a hill, is to place two feet on the
brakes, and keep the truck in gear.

219

According to Montgomery, he walked alongside the truck while
it was going up a grade that he estimated to be between 8 to 10
percent. Montgomery told Thompson to hit the brakes and, because
he had Thompson leave the door of the truck open, he observed
that Thompson placed both feet on the brakes, but the truck still
rolled backwards. Montgomery thereupon issued an imminent danger
order as well as a citation alleging a violation of Section
56.14101(a)(3), supra, which provides as follows:
"All braking
systems installed on the equipment shall be maintained in
functional condition."
Respondent did not off er any evidence to contradict the
testimony of Montgomery with regard to the functioning of the
brakes on October 5. Edward F. Herba, Jr. testified that the
following day the back brakes did work, and he made just a little
adjustment on them. However, he indicated that the front brakes
were not holding and they had to be adjusted. He opined 7
essentially, that on the day of Montgomery's inspection the
brakes were functioning at 80 percent.
Based on Montgomery's testimony that he observed that the
Euclid haul truck rolled backwards after the brakes had been
applied, and considering Herba's testimony that the front brakes
were not holding and had to be adjusted, I conclude that the
evidence establishes that Respondent herein did violate
Section 56.14101, supra.

II.
According to Montgomery, based upon his observations,
experience, and information he obtained from reviewing accident
reports, he concluded that, if the brakes in question were not
corrected, it was reasonably likely that an operator could lose
control and either go over an embankment injuring himself or run
over an outside vendor who could have come onto the premises.
He thus concluded that the violation was significant and
substantial.
The site in question was described by_Herba as being hilly
and Montgomery testified that at one point the terrain was at a
grade of approximately 8 to 10 percent. Given these conditions
and the condition of the brakes, certainly an accident could have
occurred as a result of the operator of the truck not being able
to stop it properly. However, the evidence fails to establish
that an injury of a reasonably serious nature was reasonably
likely to have occurred.
(See, Mathies Coal Co., 6 FMSHRC 1
(January 1984)). Essentially, according to Montgomery, the haul
truck operator could have been injured if the truck rolled over
as a consequence of going over an embankment by virtue of the
brakes not functioning properly. However, no proof was adduced
as to the existence of embankments and their specific locations,
particularly in reference to the areas where the haul truck

220

operated. Also, the evidence is lacking with regard to whether
persons other than the operator are frequently present in the
area where the truck operates. Although, according to Montgomery
outside vendors could enter the premises, the record does not
establish how frequently, if it all, vendors enter the area in
question.
Hence, I conclude that it has not been established
that the violation herein is significant and substantial (See,
Mathies Coal Co., supra).
III.
I accept Herba's testimony that the back brakes needed only
a small adjustment, but that the front brakes needed adjustmento
Additionally, taking into account the hilly terrain in question,
I conclude that the violation was of a moderately serious level
of gravity. Montgomery testified that Thompson had told him that
he had reported to Herba the problem concerning the brakes,
However? Thompson did not testify. Herba testified that prior to
October 5, 1989, Thompson did not tell him that there were any
problems with the brakes. I thus conclude that Respondent was
negligent to only a low degree. Considering these factors, as
well as the size of Respondent's operation, as stipulated to by
the Parties at the hearing, and the fact, as stipulated to at the
hearing, that no violations were cited by MSHA in the 24-month
period prior to the inspection at issue, I conclude that a
penalty of $150 is appropriate for the violation found hereino

ORDER
It is ORDERED that, within 30 days of this Decision,
Respondent pay $150 as a civil penalty for the violation found
herein.

g~

Administrative Law Judge

Distribution:
William G. Staton, Esq, Office of the Solicitor, U. s. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
Mr. Ed Herba, Jr., owner, Herba Sand & Gravel, RD #2,
Gloversville, NY 12078 (Certified Mail)
dcp

221

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

FEB 111991.

CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 90-410
A.C. No. 15-16316-03515

v.
No. 1 Mine

RB M ENTERPRISES, INC.,
Docket No. KENT 90-418
A.C. No. 15-16735-03506

Respondent

No. 2 Mine
DECISION
Appearances:

Grooms, Esq., Office of the Solicitor,
Department of Labor, Nashville, Tennessee, for

'
R. Shelton,
Esq., Baird, Baird, Baird and
Jones, P.s.c., Pikeville, Kentucky, for the
Respondent.
Before:

Judge Melick

These cases are before me pursuant to section 105(d) of the
Federal Mine
and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," in which the Secretary of Labor has proposed
civil pena
s
alleged violations by FS. B M Enterprises,
Inc., IRBMI of regulatory standards.
The general issues before
me are whether RBM committed the violations as alleged and, if
so, the amount of civil penalty to be assessed.
Docket No. KENT 90-410
At hearings the parties submitted a proposal for settlement
of the one citation at issue in the amount of $20. The motion
was granted at hearing on the basis of the Secretary's
representation that she has agreed to alternate means of
achieving the .purpose of the cited standard and that the operator
0as complied with that alternate method i.e. providing a f
proofing agent to be sprayed on the coal ribs at the battery
station cited in this case.
Under the circumstances the proposal
for settlement
approved and the corresponding penalty will be
incorporated in the order following this decision.

Citation No. 3535703 issued pursuant to section 104(d) (1) of

222

the Act 1 / 2 ;
charges a "significant and substantial" violation
of the standard at 30 C.F.R. § 75.400 and charges as follows:
Combustible material in form of float coal dust from
grey to black was allowed to accumulate along under the
No. 2 belt conveyor line and the connecting cross cuts
and in the No. 3 [illegible] the left side the belt
going toward the 001 section with loose wet coal and
coal dust from one-inch to approximately 14 inches in
various locations, starting at head drive and extending
inby for 600 feet in length. This condition has
existed for sometime due to the coal that was left
along ribs from when the belt line had been moved up.
The standard at 30 C.F.R. § 75.400 provides as follows:
1

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

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 vio
ion is of such nature as
could significant and substantially contribute ~o the
cause and effect of a coal or other mien safety or health
hazard, and if ·he finds such violation to be caused by an
unwarrantable failure of such operator to comply with
such mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this Act. If, during the same inspection
or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authori
representative of the Secretary finds another violation
of any mandatory health or safety standard and finds such
violation to be also caused by an unwar~antable failure
of such operator to so comply ,,,he shal'l 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,a nd
to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.
2

The Citation herein was modified at hearing from
Section 104(d)(2) order to a Section 104(d)(l) citation
since there had in fact been an intervening cleaning
inspection following the precedential Section 104(d)(l)
order.

223

a

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
MSHA Supervisory Inspector Kellis Fields testified that on
March 6, 1990, he was performing a general inspection of the
cited No. 2 Mine accompanied by Mine Superintendent Ellis Adkins.
It is not disputed that at the time of this inspection there were
8 to 10 miners working on the sections but that the mine was not
then producing coal because the motor on the coal feeder had
earlier broken down. According to Inspector Fields the belts
were nevertheless still running for the clean-up of loose coal.
According to Fields, he and Superintendent Adkins entered along
the No. 1 belt and turned right along the No. 2 belt (see
Government Exhibit No. 3). The areas marked in green on that
exhibit comport with the description in the citation that there
was float coal dust under the No. 2 belt conveyor and the
connecting crosscuts. In addition, according to Inspector Fields
there was loose wet coal and coal dust from one inch to
approximately to 14 inches deep in various locations starting at
the head drives and extending inby for 600 feet. He found the
larger accumulations (up to 14 inches) in locations were the coal
feeder had previously been situated. Based on estimated mining
progress, Fields concluded that the feeder had been moved from 14
to 16 days before his inspection. He observed that spillage
normally occurs at feeder locations as a result of overflowing.
According to Inspector Fields, Superintendent Adkins
admitted to him several days after the inspection that he had
been aware of the coal spillage, but had not had time to have it
cleaned up. The coal spillage had apparently been left at the
feeder locations after the belt had been moved.
Inspector Fields believed that there was a serious potential
for ignition from various electrical components including the
112-volt belt control line, the 440-volt "A_cu belt control box
and the 4160 "AC" power center. Fields noted in particular that
the belt control box was a "nonpermissible" box and that one
quarter inch of coal dust lay inside the box and on the
components inside. He further noted that the coal dust within
the control box was dry and that it could have been ignited by a
spark inside the box resulting in fire or explosion. He opined
that the belt rollers themselves could also become stuck causing
friction with the belt resulting in the drying and ignition of
adjacent coal dust. The 112-volt control line could also become
damaged causing an arc and triggering an explosion.
The record shows that additional citations were also issued
at this time for other extant conditions, namely for coal dust
within the belt control box, for an inadequate water spray (fire

224

suppression) system on the belt line, for failure to provide a
fire hose where a 500-foot hose was required, for the absence of
water outlets onto which fire hoses could be attached, and for
the absence of fire sensors to automatically activate the belt
water deluge system in the event of fire. These citations were
not challenged and were issued for violations occurring
concomitantly with the violation at issue herein. This evidence
provides a basis for finding highly aggravating circumstances.
Accordingly, within this framework, Inspector Fields'
conclusion that it was highly likely that all of the miners
(estimated to be 8 to 10 working at the face alone) would be
killed by explosion or fire is clearly supported by credible
evidence. I find the inspector's testimony sufficient to support
the "significant and substantial" violation charged herein. See
Mathies Coal Co., 6 FMSHRC 1 (1984).
In reaching these conclusions, I have not disregarded the
testimony of RBM witnesses Ted Robinson, a certified electrician,
Ronny Dean Smith, a miner helper, and Elmo Green, a mine
inspector for the Kentucky Department of Mines and Minerals, that
the mine at issue was so wet that the "coal dust" consisted of
nothing more than soupy mud. Inspector Green opined that with
the amount of water in the subject mine there would not be an
explosion or fire hazard from coal dust. He observed that mud
from 1 to 4 inches deep existed on the bottom of the mine.
Indeed there appears to be no dispute t~at the subject mine
was an extremely wet mine and that much of the coal dust cited
was in fact wet and muddy. However, those factors do not
preclude a violation of the standard at 30 C.F.R. § 75.400. See
Secretary v. Black Diamond Coal Mining Company, 7 FMSHRC 1117 at
p.1120-1121 (1985); Utah Power light company Mining Division v.
Secretary of Labor, 12 FMSHRC 965 (1990). The Commission
observed in those decisions that even though such accumulations
may be damp or wet they are still combustible and noted that in
the case of a fire starting elsewhere in the mine the resulting
heat may be so intense that wet coal can dry_.out and propagate a
fire.
Moreover, in light of the many other aggravating conditions,
noted above, considered in the context of continued normal mining
operations, there was a confluence of factors present in this
case to constitute a reasonable likelihood of a combustion hazard
resulting in an ignition or explosion is spite of the wetness.
See U.S. Steel Mining Co. Inc., 6 FMSHRC 1573 (1984) and
Texas Gulf, Inc., 10 FMSHRC 498 (1988).
It is clear that the violation was also the result of
"unwarrantable failure" and high negligence. The testimony of
Inspector Fields that larger accumulations were located where the
coal feeders had previously been located some 14 to 16 days

225

before his inspection, is credible. Indeed Superintendent Adkins
admitted to Fields that he had been aware of such coal spillage,
but had not had time to clean it up. Thus even assuming,
arguendo, that miners were beginning to clean along the No. 2
belt line at the time of the inspection, it is clear that the
existence of the accumulations for two weeks or more constituted
such an aggravated omission and gross negligence that it was the
result of unwarrantable failure. Emery Mining Company, 9 FMSHRC
1997 (1987). Accordingly, the section 104(d)(l) citation at bar
must be affirmed. Moreover, considering the criteria under
section llO(i) of the Act it is clear that the proposed civil
penalty of $800 is indeed appropriate.
ORDER

R B M Enterprises, Inc. is directed to pay civil penalties
of $820 within 30 days of the date of th's decision"

' \

I

I

'-

' 1~~~~v~

elick
strati.e Law Judge
Distribution:

Thomas A. Grooms, Esq., Office of the Solicit-:Jr, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird and Jones, P.S.C.,
415 Second Street, P.O. Box 351, Pikeville, KY 41502 (Certified
Mail)
nb

226

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

FEB it 1991
COMPENSATION PROCEEDING

DANNY SPARKS AND OTHERS,
Complainants

Docket No. VA 90-56-C

Vo

VP-5 Mine

VP-5 MINTNG COMPANY,
Respondent

ORDER APPROVING SETTLEMENT
AND DISMISSING PROCEEDING

Before:

Judge Broderick

Applicants filed for compensation under section 111 of the
Act for workers on the second shift at the subject mine following
the issuance of an order of withdrawal under section 107(a) at
6:30 p.m., June 7, 1990. The withdrawal order was issued because
of an excessive amount of methane in the bleeder system of the
six development longwall. the application stated that the
withdrawn miners we~e paid for 4 hours on June 7, 1990.
On January 28, 1991, Applicant Sparks, as Chairman of the
Safety Committee at the mine, submitted a proposed settlement
agreement in which the Respondent would pay an additional 2 hours
pay to the withdrawn miners.
In a conference call on February 8, 1991, Mr. Sparks stated
that the excessive methane was discovered by t~e company at about
6:00 p.m. on June 7, and the company ordered-the men withdrawn
before the Federal inspector issued hls order. Some were out of
the mine prior to the order and others were on their way out.
Some of those withdrawn from underground continued working on the
surface and were paid or will be paid for the time actually
worked. Those who did not will be paid 2 hours in addition to
the 4 hours pay they received under the union contract.
I have considered the settlement proposal and conclude that
it effectuates the purposes of the Act.

227

Accordingly, the settiement proposal is APPROVED, and,
subject to the payment of the agreed to 2 hours additional pay to
the miners withdrawn on the second shift, June 7, 1990, this
proceeding is DISMISSED.

_,:/dtitL~ dvvc&/~;et{

!l

James A. Broderick ·
Administrative Law Judge

Distribution:
Mr. Danny Sparks, Chairman, Safety Committee, Local Union 2232,
Rt. 1, Box 287p Cedar Bluff, VA 24609 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)
Mr. Calvin Ward, VP-5 Mining Company, P.O. Drawer L, Oakwood, VA
24631 (Certified Mail)
slk

228

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

f tB 13
WENDELL COOK,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 90-351-D
MSHA Case No. BARB CD 90-16

SOUTH EAST COAL COMPANY,
Respondent

Mine No. 411
DECISION

Appearances:

Wendell Cook, Whitesburg, Kentucky, pro se, for
the Complainant;
James W. Craft, Esq., Whitesburg, Kentucky, for
the Respondent.

Before~

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant, Wendell Cook, against the respondent South East
Coal Company, pursuant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c). The complainant filed his initial complaint with the Mine Safety and Health
Administration (MSHA), and after completion of an investigation
of the complaint, MSHA advised the complainant by letter dated
June 1, 1990, that the information received during the investigation did not establish any violation of section 105(c) of the
Act. Thereafter, on July 5, 1990,· the complainant filed a
complaint with the Commission. A hearing was held in Hazard,
Kentucky, and the parties waived the filing of posthearing
briefs. However, I have considered the oral arguments made by
the parties during the course of the hearing, and I have also
considered a posthearing letter of December 16, 1990, submitted
by the complainant on his behalf, and a copy was furnished to the
respondent's counsel.
The complainant, who was employed by the respondent as a
bolting-machine helper, alleges that he was harassed by the
respondent and then discharged on or about April 20, 1990, in
retaliation for filing a prior discrimination complaint against
the respondent in August, 1989.

229

The respondent denies that it discriminated against the
complainant, and asserts that the.complainant was discharged for
cause for fighting on mine property with another miner. The
respondent further asserts that fighting on mine property is a
violation of company policy and state law, and that both miners
who engaged in the fight on April 16, 1990, were discharged.
Issues
The critical question in this case is whether Mr. Cook's
discharge was prompted in any way by his engaging in protected
activity, or whether it was the result of his engaging in a fight
on mine property in violation of company policy. Additional
issues raised by the parties are identified and disposed of in
the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977
30 U.S.C. § 301 et seq.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

Complainant's Testimony and Evidence
Alisha Cook, the complainant's wife, testified that on
several occasions her husband came home from the mine upset "over
things that had happened at work." She stated that her husband
wanted to insure safe working conditions at the mine but that
when he mentioned any unsafe conditions at the mine the supervisors and his fellow miners would become upset when production
decreased. She asserted that the miners were upset because she
also worked, and she felt that management discriminated against
her husband by not offering him opportunities for advancement.
She discussed her husband's work situation_w~th company official
Danny Quillen on April 6, 1990, and.that Mr. Quillen stated "why
doesn't he just quit?"
(Tr. 16). She further stated that she
was surprised by this statement because the company had been good
to her husband and he wanted to benefit the company.
With regard to her husband's discharge for allegedly fighting with Mr. Jesse Gibson, Mrs. Cook stated that the respondent
believed that her husband had a vendetta against Mr. Gibson
because he had co-signed a bank loan for Mr. Gibson and
Mr. Gibson was delinquent in his payments. She stated that since
her husband's discharge, they have attempted to speak with
Mr. Gibson about the matter, and that during a visit to
Mr. Gibson's home on August 2, 1990, her husband asked Mr. Gibson

230

about his delinquent payments. Mr. Gibson accused her husband of
getting him fired and pulled a pistol on her husband and shot
over their vehicle as they were leaving. She then swore out a
warrant for Mr. Gibson's arrest (Tr. 18; exhibit C-3).
Mrs. Cook stated that her husband had been shoved many times
at work and had dirt put in his lunch bucket (Tr. 19).
In
response to further questions concerning the alleged fight with
Mr. Gibson, Mrs. Cook stated that her husband came home upset and
stated that Mr. Gibson had shoved him down in the parking lot
while her husband was walking to his truck. She stated that her
husband was upset because "all the men, including their supervisor and their foreman were present to witness that yet nothing
was done" (Tr. 21). She was aware that her husband was fired by
the respondent for fighting with Mr. Gibson, but as far she knew,
-there was no fight and her husband only told her that he had been
shoved on his way to his truck (Tr. 21).
On cross-examination, Mrs. Cook stated that her husband was
upset ''because of the safety situation at the mines and the
equipment" (Tr. 22). She stated that she learned that her
husband had been fired 2 days following the alleged fight with
Mr. Gibson, and did not know that Mr. Gibson had also been fired
at the same time as her husband (Tr. 22).
Wendell Cook, the complainant, stated that it was not
uncommon for fighting to go on at the mine, and he identified one
miner (Greg Horn) who was transferred to another mine for fighting. Mr. Cook also stated that management provided moonshine for
miners after they came out of the mine, and that "it was nothing
uncommon for management to have women at the mines" (Tr. 24).
With regard to the alleged April 16, 1990, fight with Mr. Gibson,
Mr. Cook stated as follows (Tr. 26-27):
MR. COOK: And the night that they are talking about
there, that was on April 16th. When I come out of the
mines--he had been calling me names all night inside
the mine.
THE COURT:

Who is that, Mr. Gibson?

MR. COOK: Mr. Gibson. And as I come up the bank
there, he shoved me backwards.
I had my dinner bucket
in my left hand and my self-rescuer in my right hand
and I am right-handed.
If I was going to hit anybody,
I think I would hit them with my right hand.
He shoved me backwards and as I was falling backwards, trying to catch my balance, I may have thrown my
hand.
If I hit him, he done it himself, you know.
I
will say that he did have a scratch on the top of his

231

nose, now.
I throwed.

But it was not from a punch or nothing that

Mr. Cook stated that Mr. Gibson was a roof-bolting machine
operator and that he had been bickering with other miners on the
section and the mine foreman for a month or so prior to the
incident of April 16. He stated that Mr. Gibson was complaining
that he had to do most of the bolting, and on March 24, 1990,
shoved him because he was angry about having to bolt so much and
about some of the bolting practices. Mr. Cook stated that
Mr. Gibson had words with another miner that evening about the
bolting, and that as a result of all of this bickering, he (Cook)
asked Mr. Quillen to transfer him off the section.
Mr. Cook stated that on April 21, 1990, the day following
his discharge, another miner, Tommy Gibson, informed him that he
(Gibson) "knew that they were going to set me up,H but that
Mr. Gibson could not admit to this if the matter were to go to
court "because he had to have his job" (Tr. 31).
Mr. Cook produced a copy of his termination letter and a
copy of a Kentucky Department for Employment Services determination concerning his unemployment claim which he filed after his
discharge (exhibits C-1 and C-2).
He pointed out that the
unemployment examiner found that there was insuff
evidence
available to substantiate the fight in question, and that his
separation was not disqualifying under state law (Tr. 34-35).
Mr. Cook stated that after he received his termination
letter from the respondent, he spoke to Mr. Steve LaViers, a
company official, and Mr. LaViers confirmed that he had discussed
the matter with Mr. Danny Quillen, and understood that the
alleged fight with Mr. Jesse Gibson was over the bank note which
Mr. Cook had co-signed (Tr. 41). Mr. Cook produced a copy of a
letter dated April 17, 1990, addressed to him and Mr. Gibson,
from the Bank of Whitesburg, Kentucky, reminding them that the
loan payment was overdue (exhibit C-4). Mr. Cook stated that he
received the letter on Wednesday (April 18, 1990), and that
Mr. Quillen told him that Mr. Jesse Gibson-told him that he
(Cook) hit him because he was not paying the note (Tr. 42).
Mr. Cook stated that he spoke to Mr. Quillen on Wednesday,
April 18, 1990, and that Mr. Quillen told him to take the day off
until he could check into the matter.
He then telephoned
Mr. Quillen on Thursday, April 19, 1990, and Mr. Quillen informed
him that he would have to let him go, but gave him no reason (Tr.
43). Mr. Cook then went to see Mr. Quillen and Mr. Quillen
informed him that he knew that he had hit Mr. Gibson on April 16
(Tr. 43). Mr. Cook stated that he visited Mr. Gibson at his home
on the evening of April 16, and that there was nothing wrong with
him and he did not file any accident report that evening.
Mr. Gibson reported for work the next day, April 17, and Mr. Cook

232

saw that he had "a little scratch across the top of his nose"
(Tr. 44) •
Mr. Cook confirmed that he has reviewed the hospital reports
concerning Mr. Gibson's injuries (exhibits R-1 through R-6), and
when asked how he could account for the extent of Mr. Gibson's
injuries, Mr. Cook replied as follows (Tr. 45-46):
MR. COOK:

Well, I know I didn't hit the man.

THE COURT: But I am talking about the injuries. The
guy had his nose broken in two places and all those
contusions and the things that those doctors said that
he had, wouldn't you think that he would have more than
just a little old scratch on his nose?
MR. COOK: Well, he went to the doctor, what,
Wednesday?
THE COURT~
You said that you didn't hit him, but you
said early on you said that you may have, you may have
swung your lunch bucket or something"
MR. COOK~ Well, if I did, it was--I mean 1 he walked
into it, you know, me a falling.
THE COURT: While you were swinging the bucket he
walked into it?
MR. COOK: Just falling backwards, naturally, you know,
you are going to try to balance yourself. You know, I
didn't hit the man. But now, he did have a scratch on
his--I know that night-Mr. Cook produced a receipt in the amount of $20 from the
Daniel Boone Clinic, for services rendered by a doctor on
April 20, 1990 (exhibit C-5). He explained that he went to see
the doctor that day because he had been shove9 by Mr. Gibson on
April 16, 1990, and hit his head when he hit the ground (Tr. 49).
He further stated that he spoke wit~·Mr. Quillen about the bill
on April 21, and Mr. Quillen informed him that his regular
insurance, rather than workmen's compensation, should pay the
bill (Tr. 49-50). Mr. Cook confirmed that the doctor's certification reflecting that he was under the doctor's care from
April 20 to April 24, 1990, was an excuse to cover that week (Tr.
48) •

Mr. cook stated that he and Mr. Gibson had been the best of
friends, but that on April 16, Mr. Gibson had called him some
names, and when asked for an explanation as to what may have
prompted the name calling, Mr. Cook stated as follows (Tr.
51-53) :

233

MR. COOK: The only thing I can assume, which you know,
you can't go on assumptions, but I just assumed that he
didn't want to work with me and wanted to--he knew that
he wasn't going to pay the bank note, which he didn't.
I had to pay it, right at $1,000.00.
I just assumed
that he didn't want to work with me and just didn't-THE COURT: But now, in your complaint, you said that
Mr. Gibson was harassing you and you say that you
believe this harassment was a direct result of management. What did you mean by that? Somebody reading
that would think that the management put Mr. Gibson up
to harassing you to give you an excuse to hit him to
get rid of him.
MR. COOK:

Well, you know, I wouldn't have no--

THE COURT: You think that is what happened? You think
that the company told Mr. Gibson, "hey, start harassing
Mr. Cook, and get him to do something to you; get him
to hit you in the nose and fracture it so that we can
set him up to fire him." You think that is what
happened in this case?
MR. COOK:

I

think it is a very good possibility.

THE COURT: That just seems like an extreme thing for a
company to do to get rid of somebody, and particularly
extreme on Mr. Gibson's part. What did he get out of
all this? He got fired, too, didn't he?
MR. COOK:
know.

I

assume he did.

He said he did.

I

don't

THE COURT:

Is he working at this company, Mr. Cook?

MR. COOK:

No.

Mr. Cook stated that there were fights- at the mine "all of
the time, 11 and he confirmed that rlo one ever reported them (Tr.
55). He further confirmed that at the time he filed his MSHA
complaint on April 24, 1990, he did not allege that he made any
safety complaints or was fired for making such complaints.
Mr. Cook stated that he told MSHA special investigator Mullins
"about the violations," and when asked whether he is suggesting
that the respondent fired him for reporting safety violations,
Mr. Cook responded "I am not sure why they fired me.
I know it
was not for fighting" (Tr. 58).
Mr. Cook confirmed that he had filed an earlier discrimination complaint against the respondent in August, 1989, but
withdrew it after reaching an agreement with Mr. Quillen who

234

assured him that he would be reinstated to his original job.
Mr. Cook explained that after he returned to work he was put on
another crew, and after complaining to Mr. Quillen, he was
eventually returned to his old job and crew within 2 months (Tr.
58-63).
In response to questions concerning his allegations that
the respondent harassed him and retaliated against him for filing
his earlier complaint, Mr. Cook alluded to the "bickering" which
continued on his shift, his request to be transferred, management's refusal to transfer him, and the "hard feelings" which
existed between him and mine superintendent Earl Duncil.
Mr. Cook also believed that he was not given the same opportunities as others to change to less boring jobs, and he cited one
instance in which he was denied an opportunity by Mr. Duncil to
perform some clean up work rather than working as a roof-bolting
assistant (Tr. 66-72).
On cross-examination, Mr. Cook stated that he was aware that
Mr. Gibson left the mine at 6:00 p.m., on April 17, 1990, prior
to the end of his shift, and that his replacement told him that
Mr. Gibson was sick and had to leave (Tr. 73-74).
Mr. Cook
stated that he went to Mr. Gibson 1 s home that evening at approximately 10:30 p.m., to see what was wrong with him and to ask him
why he "acted in the manner that he did 11 when he pushed him down
the prior evening.
He stated that during his discussion with
Mr. Gibson, he (Gibson) mentioned the bank note and told him that
"he would fix me up that night" and ordered him to leave (Tr.
73-77).
With regard to a bank delinquency notice letter of April 13,
1990, addressed to him, (exhibit R-12), Mr. Cook stated that he
received it the following Wednesday, April 18, 1990, and that he
gave the post-marked envelope and original bank letters to
Mr. Quillen when he spoke with him at the mine, but that when he
retrieved the correspondence, the envelopes were gone.
Mr. Cook
admitted that he told Mr. Quillen that Mr. Gibson had shoved him,
but denied telling him that nothing happened (Tr. 78-81).
Mr. Cook confirmed that when he spoke with Mr. Quillen on
April 18, Mr. Quillen knew about the bank note which he had
signed, but he (Cook) denied that he knew anything about the bank
delinquency letter of April 13, or that Mr. Gibson was not paying
the note when the incident of April 16, occurred (Tr. 82-84).
Mr. Cook stated further that he gave the bank correspondence to
Mr. Quillen because Mr. Quillen told him that the incident with
Mr. Gibson occurred because of the bank note, and that he (Cook)
was trying to show Mr. Quillen that he knew nothing about the
delinquent bank note payment on April 16 (Tr. 84-85).
Mr. Cook stated that miners smoked underground, would drink
on the surface after they were off duty, and would engage in
target shooting on the parking lot.
He stated that he complained
to Mr. Quillen and the mine superintendent, but did not complain
to any mine inspectors. Mr. Cook confirmed that he did not tell

235

the mine foreman or superintendent that Mr. Gibson had shoved him
to the ground on April 16, and that when he spoke with
Mr. Quillen on April 18, Mr. Quillen said nothing about firing
Mr. Gibson, and only indicated that he "was on compensation" (Tr.
96-97).
Respondent's Testimony and Evidence
Daniel Quillen, Jr., stated that he is employed by the
respondent as Vice-President for operations, and that his duties
include assisting in the management of the mines, hiring and
firing, and the supervision of payroll and office records. He
confirmed that the Brinkley Mine has been closed since
October 10, 1990, that production has ceased, and that eight
people are at the site removing the equipment. Mr. Quillen
confirmed that Mr. Cook and Mr. Gibson worked on the second
ft
at the mine, from 2:00 p.m. to 10:00 p.m., and that they were
both classified as "clean-ups, 11 which including helping on the
roof-bolting machine and attending or maintaining a belt conveyor
(Tr. 98-101) .
Mr. Quillen stated that the altercation of Monday, April 16,
between Mr. Cook and Mr. Gibson first came to his attention on
Wednesday morning, April 18, when Mr. Gibson walked into his
office and it was obvious that he had been hit with something
hard because his eye was black and "his nose was crooked like a
dog 1 s hind leg'' (Tr. 102). Mr. Gibson told him that Mr. Cook hit
him in the nose and eye with his dinner bucket Monday evening
after leaving the mantrip and as they were proceeding to the
parking area. Mr. Quillen stated that Mr. Gibson told him that
he did not know why Mr. Cook struck him. He then instructed
Mr. Gibson to go to the hospital emergency facility in Hazard to
see a doctor, and either called, or had his secretary call
Mr. Cook to come to the mine to speak with him (Tr. 102).
Mr. Quillen stated that he told Mr. Cook about Mr. Gibson's
statement that he (Cook) had struck him, but that Mr. Cook denied
that it ever happened and stated that "nothing happened" and
"that if the man got hurt, it was after he-1eft the mine because
he didn't get hurt at the mines" (Tr. 103). Mr. Quillen confirmed that he advised Mr. Cook that he could not work until he
found out what happened. Mr. Quillen further stated that
Mr. Gibson had reported for work on Tuesday, April 17, but had to
come out of the mine during his lunch hour at 6:00 p.m., after
telling him that "he was hurting so bad and got sick in the
mines" as a result of the injuries he had received on April 16
(Tr. 104).
Mr. Quillen stated that after investigating the matter, he
fired Mr. Cook and Mr. Gibson for fighting on company property
and that "it was just a disciplinary action that had to be taken
to tell the people that works at South East Coal Company you

236

can't go around doing this on South East Coal Company's property"
(Tr. 104). Mr. Quillen denied that his decision to discharge
Mr. Cook had anything to do with the previous complaint filed by
Mr. cook, and that his decision to fire him was based on what he
(Quillen) believed happened Monday evening, April 16 (Tr. 105).
Mr. Quillen stated that no one ever complained to him about
drinking, women, or shooting on company property until he
received Mr. Cook's letter of August 10, 1990, appealing MSHA's
determination in connection with his discrimination complaint.
Mr. Quillen stated that he has fired a miner for smoking in
another mine, but that this was not brought to his attention by
Mr. Cook. He confirmed that no one at the Brinkley Mine has been
fired for smoking underground, and although he has heard several
complaints about smoking, he stated that he needed definite proof
in order to fire anyone (Tr. 107).
On cross-examination, Mr. Quillen stated that he did not
believe that Mr. Gibson received his injuries somewhere else
other than at the mine. He confirmed that Mr. Cook told him that
nothing had happened, and if it did, it happened after Mr. Gibson
left the mine. Mr. Quillen stated that he found out that
Mr. Gibson rode home with another miner, Benny campbellf Monday
evening, April 16, and that when he contacted Mr. Campbell,
Mr. Campbell told him that when he arrived at Mr. Gibson's truck,
Mr. Gibson was already in it and that his nose was bleeding and
that it bled all the way from the mine to his home (Tr. 107-110).
Mr. Quillen stated that he was unaware of any other fights
at the mine, and could not recall Mr. Cook telling him about a
fight between Larry Collins and Tommy Gibson (Tr. 114). Mr. Cook
asserted that he told Mr. Quillen about this fight before he was
discharged, when he had requested to transfer off the section,
and that the fight was "over two men wanting a belt drive" (Tr.
115) •

In response to further questions, Mr. Quillen confirmed that
the termination letter of April 20, 1990, d~es not include a
statement that Mr. Cook was discharged for fighting. Mr. Quillen
explained that Mr. Cook knew why he was being fired and that he
verbally informed him of the discharge on April 19, either by
telephone, or personally at the mine office, and that they "had
been talking about it for two days" (Tr. 118). Mr. Quillen
confirmed that Mr. Cook gave him the two bank delinquency notices
either on Wednesday, April 18, or a couple of days later, but
that Mr. Gibson never said anything about any late payments.
Mr. Quillen believed that Mr. Cook gave him the notices in order
to show that "this was Jesse's fault, not my fault because Jesse
hadn't made the payments" (Tr. 120).
Mr. Quillen could not recall the exact date of Mr. Gibson's
discharge, but confirmed that it was before the doctor would have

237

permitted him to come back to work. Mr. Quillen was of the
opinion that the argument was over the delinquent note payments,
and he believed that "one of them was as much at fault as the
other.
So they should both be fired" (Tr. 121). Mr. Quillen
confirmed that the company policy prohibiting fighting on company
property is not in writing, and that the employees know about it
through "common sense" (Tr. 123). He further confirmed that
fighting at a mine is a violation of Kentucky Mine Law (Tr. 124).
He stated that he had never previously fired or disciplined any
other employees for fighting, and had no knowledge that anyone
else had ever fought on mine property (Tr. 125-127). Mr. Quillen
acknowledged that there were "hard feelings" at the mine and a
conflict between Mr. Cook and management which resulted in his
prior discharge. Mr. Quillen stated that the conflict concerned
Mr. Cook's desire to be transferred from one job to another (Tr.
130) .
Mr. Cook stated that at the time of his discharge, he was
employed as a bolting-machine helper at an hourly rate of $11.25,
and that he worked "maybe eight hours a month" overtime. He was
covered by a hospitalization plan, but had no retirement benefits.
He was also covered by a company vacation plan. His last
day of work was April 17, 1990, and he was paid through April 20,
by using his vacation time. He stated that he has been unemployed since his termination, and has sought employment at three
mines but has not been successful. He has not looked for any
non-mining jobs and has been receiving unemployment benefit
payments since his discharge, and the respondent has not prevented him from receiving these payments (Tr. 134-135).
Mr. Quillen could not recall whether he contested Mr. Cook's
unemployment compensation claim, and stated that "it is awful
hard to prevent a person from getting unemployment in Kentucky"
(Tr. 137).
Findings and Conclusions
In order to establish a prima f acie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and. (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds
nom.
consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way

238

motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent<
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983) ~
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984)0
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):
It would indeed be the unusual case in which the
link between the discharge and the (protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory~intent by a mine
operator against a complaining miner... include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva coal company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:
As we emphasized in Pasula, and recently
re-emphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator

239

can attempt to demonstrate this by showing, for example, past discipline consistent with that meted to the
alleged discriminatee, the miner's unsatisfactory past
work record, prior warnings to the miner, or personnel
rules or practices forbidding the conduct in question.
our function is not to pass on the wisdom or fairness
of such asserted business justifications, but rather
only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as claimed.
Mr. Cook's Protected Activity
Section 105(c) (1) of the Mine Act provides in pertinent part
as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner * * *
because such miner * * * has filed or made a complaint
under or related to this Act * * * or because such
miner * * * has instituted or caused to be instituted
any proceeding under or related to this Act or has
testified or is about to testify in any such proceed~
ing, or because of the exercise by such miner * * * of
any statutory right afforded by this Act.
It is clear that Mr. Cook enjoys a statutory right to voice
his concern about safety matters, to make safety complaints, or
to file a discrimination complaint without fear of retribution or
harassment by mine management. Management is prohibited from
harassing Mr. Cook, or intimidating or otherwise interfering with
Mr. Cook's rights to engage in these kinds of activities.
In order to establish a prima facie violation of section
105(c) (1) of the Act, Mr. Cook must prove by a preponderance of
the evidence that he engaged in protected aetivity and that his
discharge was motivated in any pal:t 'by the protected activity.
In order to rebut a prima facie case, the respondent must show
either that no protected activity occurred, or that the discharge
was in no way motivated by Mr. Cook's protected activity.
Mr. Cook's Discharge
The record reflects that Mr. Cook was discharged on two
occasions by the respondent. The first discharge occurred in
August, 1989, and Mr. Cook confirmed that Mr. Quillen fired him
and sent him a letter identical to the discharge letter
Mr. Quillen sent him on April 20, 1990, when he fired him a
second time. Mr. Cook testified that when Mr. Quillen called him
to inform him of the first discharge, he asked Mr. Quillen for a

240

reason for the discharge and that Mr. Quillen responded "for no
particular reason" and "slammed the phone down" (Tr. 131).
Mr. Quillen could not recall why Mr. Cook was discharged the
first time, but denied that it had anything to do with any safety
complaints (Tr. 130-131).
·
The record further reflects that as a result of the first
discharge in August, 1989, Mr. Cook filed a discrimination
complaint against the respondent but voluntarily withdrew it.
Mr. Cook confirmed that he withdrew the complaint because "I
thought everything was going to be okay" and that he needed the
work (Tr. 132). Mr. Cook further explained that he withdrew the
complaint after Mr. Quillen assured him that he would be reinstated to his original job, and he confirmed that upon his return
to work after his reinstatement, he was assigned work with
another crew, but after complaining to Mr. Quillen, he was
eventually returned to his old job and crew within 2 months of
his reinstatement.
With regard to the second discharge which prompted the
instant discrimination complaint, the discharge letter signed by
Mr. Quillen informing Mr. Cook of the discharge is dated
April 20, 1990, and it states that Mr. Cook's employment with the
respondent "is terminated this date, April 20, 1990 (exhibit
C-1). Mr. Cook testified that he was not sure why he was fired
but insisted that it was not for fighting. His wife testified
that she learned that her husband had been fired 2 days after the
alleged fight with Mr. Gibson. Although the discharge letter
does not state the reason for the discharge, Mr. Quillen testified that he and Mr. Cook had discussed the fighting incident for
2 days after it happened, and after Mr. Quillen had observed
Mr. Gibson's condition and instructed him to seek medical attention. Mr. Quillen further testified that he verbally informed
Mr. Cook of the reason for his discharge when he spoke with him
by telephone or in his office on April 19, 1990.
Mr. Cook confirmed that he telephoned Mr. Quillen on the
morning of April 19, and that Mr. Quillen informed him that "he
was going to have to let me go," but· gave him no reason (Tr.
42-43). Mr. Cook confirmed that he then went to the mine and
spoke with Mr. Quillen and that Mr. Quillen informed him that he
(Quillen) knew that he (Cook) had struck Mr. Gibson on April 16.
Mr. Cook further confirmed that on the evening of April 16, he
went to Mr. Gibson's home and found that nothing was wrong with
him (Tr. 43}. He later testified on cross-examination that he
visited Mr. Gibson at his home on the evening of April 17, "to
see what was wrong with him" (Tr. 75}. Thus, Mr. Cook's testimony corroborates Mr. Quillen's testimony that he personally spoke
with Mr. Cook, by telephone, and in person about the fight with
Mr. Gibson. Having viewed Mr. Quillen in the course of his
testimony, I find him to be a credible witness. Further, since
it would appear from his own testimony that Mr. Cook went to

241

Mr. Gibson's home to inquire as to his condition, this raises a
strong inference that Mr. Cook was aware of the possibility that
Mr. Quillen would possibly hold him accountable for the altercation with Mr. Gibson. Under all of these circumstances, I
believe Mr. Quillen's testimony that he informed Mr. Cook that he
was being discharged for fighting with Mr. Gibson, and I conclude
and find that Mr. Cook was informed of the reason for his discharge and that he knew he was being discharged by Mr. Quillen
for fighting with Mr. Gibson.
The Alleged Discrimination
Safety Complaints
In his initial complaint letter received by the Commission
on July 5, 1990, Mr. Cook makes reference to his prior discrimination complaint, and he asserted that he was discharged in
August, 1989, "for refusing to work in unsafe conditions, 11 and
that he was terminated the day following his notifying state and
federal authorities "about the conditions. ig In the letter,
Mr. Cook took issue with the manner in which his first complaint
was investigated by MSHA, and he suggested that the investigating
inspector was related to the mine superintendent, Earl Duncil,
and that this was a conflict of interest. With regard to his
instant complaint, Mr. Cook also took issue with the manner in
which it was investigated by the same inspector who investigated
his first complaint, and his letter states that when he spoke
with the inspector, the inspector purportedly informed him that
he had no case, tried to get him to sign some unspecified form,
which he refused to sign, and that the inspector informed him
that he "would not write the case up because there was no protected act."
In a subsequent letter of August 10, 1990, addressed to
Mr. Quillen, and which I consider part of his complaint, Mr. Cook
asserts that his discharge was out of retaliation for his first
complaint. He further alleges that after his reinstatement
following the first discharge, he was subjec~ed to harassment
which he attributed to "hard feelings" against him by superintendent Duncil because of his first complaint, and he accused
Mr. Duncil of supplying intoxicating beverages to miners on mine
property after their work shifts, allowing miners to bring women
onto mine property, allowing miners to remain on mine property
after they were intoxicated, which resulted "in people being shot
at while in the parking lot," and allowing miners to miss as much
as a week's work "after drinking moonshine" supplied to them by
Mr. Duncil. Mr. Quillen testified that such complaints were
never previously brought to his attention by Mr. Cook, and that
he first learned about them when he received the letter of
August 10, 1990, in connection with Mr. Cook's complaint.

242

I take note of the fact that when Mr. Cook filed his complaint with MSHA on April 24, 1990, shortly after his discharge,
and executed the usual complaint form, he made no mention of any
safety complaints as the basis for his discharge. At that time,
he claimed that Mr. Gibson began harassing him at the end of his
work shift on April 16, 1990, and that he (Cook) "believed that
this harassment was a direct result of management. I had previously filed a complaint against the company and had been
reinstated."
In his complaint letter of July 5, 1990, Mr. Cook alleges
that the respondent "forced him to work under unsafe conditions. 11
I conclude and find that these allegations were in connection
with Mr. Cook's prior discrimination complaint which he withdrew,
and I find no credible evidence in connection with his present
complaint to support any such claim. In his letter of August 10,
1990, Mr. Cook makes reference to a conversation of April 6,
1990, between his wife and Mr. Quillen, and he asserts that his
wife "mentioned the long cuts measuring as much as 52 feet, men
smoking underground, and many other unsafe acts" during that
conversation. Mrs. Cook confirmed that she spoke with
Mr. Quillen on April 6, 1990, at the mine because she believed
that he may not have been aware of her husband 1 s "work situation•u
and his concern "about the safety situations 11 (Tr. 16).
Mr. Cook confirmed that when he filed his complaint with
MSHA he did not allege that his discharge was based on any safety
complaints that he may have made. During the hearing, Mr. Cook
mentioned one complaint when he claimed that he told the MSHA
special investigator "about the violations." Mr. Cook also
claimed that he had called an inspector "about the big cuts," and
he explained that although the mine was on a 20-foot plan, it was
common for 52-foot cuts to be made. He also claimed that he had
mentioned the matter of "deep cuts" while attending a training
class when a state mine inspector (Bobby Bentley) was present.
However, Mr. Cook could not state when these complaints were
made, and he asserted that "ninety-nine percent of the time they
would -- the company would know it before an inspector got there"
(Tr. 57). Mr. Cook makes no claim that he ever made any safety
complaints to mine management.
It has consistently been held that a miner has a duty and
obligation to communicate any safety complaints to mine management in order to afford management with a reasonable opportunity
to address them. See: Secretary ex rel. Paul Sedgmer et al. v.
Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller v.
FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy,
Inc., 8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. Reco,
Inc., 9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co.,
6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal
company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per

243

Curiam by agreement of the parties, July 12, 1989, U.S. Court of
Appeals for the District of Columbia Circuit, No. 89-1097.
As the complainant in this case, Mr. Cook has the burden of
establishing by a preponderance of the evidence that he made and
communicated any safety complaints to mine management or to an
inspector, that management knew or had reason to know about the
complaints, and that his discharge which followed was the result
of the complaints and therefore discriminatory.
In short,
Mr. Cook must establish a connection between the complaints and
his discharge.
See:
Sandra Cantrell v. Gilbert Industrial,
4 FMSHRC 1164 (June 1982); Alvin Ritchie v. Kodak Mining Company,
Inc., 9 FMSHRC 744 (April 1987); Eddie D. Johnson v. Scotts
Branch Mine, 9 FMSHRC 1851 (November 1987); Robert L. Tarvin Vo
Jim Walter Resources, Inc., 10 FMSHRC 305 (March 1988); Connie
Mullins v. Clinchfield Coal Company, 11 FMSHRC 1948
(October 1989).
After careful review of all of the testimony and evidence in
this case, I find no credible probative evidence to support any
conclusion that Mr. Cook ever made any safety complaints to mine
management after he was reinstated following his first dischargep
and prior to his subsequent discharge of April 19, or 20p 19900
With regard to Mro Cook 1 s asserted complaint to an inspector
about 11 deep cuts, 11 I find his testimony to be somewhat contradic~
tory in that he first testified that he called an inspector about
this matter, but later testified that he simply mentioned it
during a safety class he was attending, during which the inspector was present. Mr. Cook could not state when this statement
was made. Mr. Cook's purported complaint to an MSHA inspector
"about the violations" were, by his own testimony, made after he
filed his discrimination complaint and during the investigation
of that complaint.
Further, there is no evidence that mine
management was ever aware of any such complaints, and I find
credible Mr. Quillen's testimony that Mr. Cook never made any
safety complaints to him, and that he first learned of the
complaints concerning superintendent Duncil when he received
Mr. Cook's letter of August 10, 1990, after-he had filed his
complaint. Although Mr. Quillen acknowledge that he was aware of
complaints about smoking, he indicated that he needed proof of
any such incidents in order to fire anyone, and could not accept
unsubstantial allegations. He did confirm that he has fired
miners at other mines for smoking, but denied that he ever
received any such complaints from Mr. Cook prior to his discharge
(Tr. 105-106) .
In view of the foregoing, I conclude and find that
Mr. Cook's discharge was not the result of any safety complaints
made to mine management or to any mine inspector.

244

The alleged Harassment
As noted earlier, in his April 24, 1990, complaint to MSHA,
Mr. Cook asserted that at the end of the work shift on April 16,
1990, the evening of the alleged fight with Mr. Gibson,
Mr. Gibson began harassing him, and Mr. Cook believed that the
harassment "was a direct result of management." Mr. Cook testified that Mr. Gibson, who was a bolting-machine operator, "had
been calling me names all night inside the mine" (Tr. 26). He
explained that Mr. Gibson "had been bickering" for at least a
month prior to April 16, and that Mr. Gibson was upset and mad
about having to do so much bolting work and had words with the
mine foreman and another bolting crew "several times" (Tro 28).
Mr. cook stated that on one occasion, on March 24, 1990,
Mr. Gibson 11 gave me a big shove" because "he was mad over having
to bolt so much, 11 and that "it was just bickering within the
whole crew" over the roof bolting work (Tro 28-29). Mr. Cook
stated further that "I wanted to get away from the bickering,
quarrellingo And Mr. Quillen knew that this was going on amongst
all the men, not just me. Really, I wasn 1 t even involved in it 1v
(Tr. 30) •
Mr. Cook did not recall that Mr. Quillen was at the mine
when the bickering and quarrelling went on (Tr. 63), but that he
had spoken to Mr. Quillen about the situation, and although
Mr. Quillen assured him that he would take him away from the
section, he did no do so (Tr. 29). Mr. Cook stated that the mine
foreman {Wood stone) was "right in the middle" of the bickering
among the work crew, and that Mr. Quillen knew that Mr. Duncil
had "hard feelings" against him. He also stated that on one
occasion Mr. Duncil "made his brags" about his (Cook's) refusal
to ride a mantrip, and that when he went to the office to explain
why he had not ridden the mantrip, Mr. Duncil instructed him to
go back and that someone would come get him, and he heard
Mr. Duncil comment "there comes the little S.O.B., I can fire him
now" (Tr. 67). On another occasion, after asking foreman Stone
for permission to trade shifts with another miner, the foreman
advised him that Mr. Duncil would not approve" it. on yet another
occasion when he was offered ah opportunity by another foreman to
operate a scoop as a "clean up man," Mr. Duncil would not approve
the change (Tr. 68-71).
Mr. Quillen confirmed that after his reinstatement, Mr. Cook
informed him that "there were hard feelings" on his working
shift, but that he had no way of knowing whether or not the other
miners were jealous of Mr. Cook because his wife worked.
Mr. Quillen denied that he harbored any grudge against Mr. Cook
because he filed the prior discrimination complaint, and he
confirmed that the complaint was withdrawn after they settled
their differences. He explained that after Mr. Cook was reinstated, Mr. Cook came to his office and advised him that he
wanted to go back to work and "really didn't want any arguments"

245

(Tr. 128). Mr. Quillen confirmed that he put Mr. Cook back to
work, and although it may have taken a couple months, he eventually got his old job back (Tr. 129).
Mr. Quillen further confirmed that "there was a conflict
between Wendell and the management over there that caused Wendell
to be fired the first time" (Tr. 129). He explained that part of
the 11 conflict 11 concerned Mr. Cook's desire to be transferred from
one job to another, and his dissatisfaction with staying on one
job for a long period of time (Tr. 130).
I find no credible evidence in this case to support any
conclusion that mine management harassed Mr. Cook because of his
prior complaint. The only direct evidence of any harassment
found in Mr. Cook's testimony which clearly points to Mr. Gibson
as the culprit. Mr. Gibson was employed as a roof bolter and
there is no evidence that he had any connections with management.
Mr. Cook suggested that there was a "strong possibilityH that
management induced Mr. Gibson to start harassing him in order to
provoke a fight so that it could have an excuse to fire him. I
find this to be rather far-fetched, particularly since Mr. Gibson
sustained rather serious injuries and was himself fired by the
company.
Upon review of all of the testimony in this case, I conclude
and find that the "bickering and quarrelling 11 alluded to by
Mr. Cook was the result of dissatisfaction among Mr. Cook 1 s
fellow working crew members themselves and had nothing to do with
any harassment by any foreman or other members of management.
Based on Mr. Cook's own testimony, it seems obvious to me that
Mr. Gibson was the principal cause of these encounters among the
crew, and at one point during his testimony, Mr. Cook stated that
he (Cook) was not involved in the quarrelling.
With regard to Mr. Cook's harassment by Mr. Gibson, I
conclude and find that it was the result of personal differences
between them, and not withstanding Mr. Cook's denials to the
contrary, I believe that part of their differences concerned a
dispute over the failure by Mr. Gibson to make payments on a loan
note co-signed by Mr. Gibson. Although Mr. Cook asserted that he
and Mr. Gibson had been the best of friends prior to the fighting
incident of April 16, he confirmed that Mr. Gibson shoved him on
March 24, and nearly caused him to fall in front of a mantrip.
Although Mr. Cook stated that he was not angry at Mr. Gibson over
that incident, he believed that there was no excuse for
Mr. Gibson's conduct (Tr. 28~.
Mr. Cook also confirmed that on the evening of April 16,
Mr. Gibson began calling him names and continued his harassment.
When asked for an explanation of Mr. Gibson's conduct that
evening, Mr. Cook "assumed" that Mr. Gibson did not want to work
with him. However, Mr. Cook alluded to the fact that Mr. Gibson

246

knew that he was not going to pay the bank note, and that he
(Cook) had to pay the $1,000 note (Tr. 10). M~. Cook further
confirmed that when he went to Mr. Gibson's home on the evening
of April 17, Mr. Gibson "mentioned the bank note" and ordered him
off his property. A subsequent visit to Mr. Gibson's home by
Mr. Cook and his wife after the discharge resulted in a confrontation over the bank note which was culminated by Mr. Gibson
displaying a weapon and shooting over Mr. Cook's vehicle. As a
result of that incident, Mrs. Cook obtained a warrant for
Mr. Gibson's arrest.
It seems obvious to me after viewing Mr. Cook during his
testimony at the hearing that he was dissatisfied with his
working environment after he was reinstated. Mr. Cook apparently
expected to be immediately put back on his former job and working
·shift upon his reinstatement, and he voiced his displeasure with
Mr. Quillen for his failure to immediately return him to his old
job. However, the fact remains that Mr. Quillen eventually put
him back on his old job, albeit 2 months after the reinstatement.
It seems to me that if Mr. Quillen harbored any ill will towards
Mr. Cook over his prior complaint, Mr. Quillen would have left
him where he was rather than ultimately putting him back on his
old job. I take note of Mrs. Cook's testimony that when she
spoke to Mr. Quillen on April 6, 1990, about her husband 1 s 11 work
station," Mrs. Cook told Mr. Quillen that the company °'had been
good" to her husband (Tr. 16).
With regard to Mr. Cook's displeasure after being rebuked in
his attempts to shift to other job tasks after his reinstatement,
and his belief that Mr. Duncil still "had it in for him" because
of his first complaint, Mr. Cook conceded that as the mine
superintendent, Mr. Duncil had the authority, within his managerial discretion, to regulate the work force and approve of all
job assignments.
Further, the record in this case establishes
that on both occasions when he was discharged, it was
Mr. Quillen, and not Mr. Duncil, who fired Mr. Cook, and there is
no evidence of any involvement by Mr. Duncil in the discharge
decisions. Under all of these circumstance$.,, I find no credible
or probative evidence to support anycconclusion that mine management harassed Mr. Cook or retaliated against him because of his
prior 1989 discrimination complaint.
The Fighting Incident of April 16, 1990
Mr. Quillen, the responsible company official for hiring and
firing the work force, testified that he fired Mr. Cook for
fighting with Mr. Gibson on mine property after the completion of
their work shift on the evening of April 16, 1990, and he confirmed that such fighting was a violation of company policy, as
well as the Kentucky mining laws. Mr. Quillen believed that the
fight was the result of a personal dispute between Mr. Gibson and
Mr. Cook over a personal bank loan note which Mr. Cook had

247

co-signed for Mr. Gibson, and he confirmed that after concluding
that they were both equally at fault, he made the decision to
discharge both of them for fighting.
Mr. Quillen confirmed that he conducted an investigation of
the fighting incident, which included conversations with
Mr. Gibson and Mr. Cook, and a statement by another miner (Benny
Campbell) who rode to work with Mr. Gibson. Mr. Quillen testified that Mr. Gibson left his work shift early on April 17,
because he was reportedly "hurting so bad" as a result of his
injuries, and that when Mr. Gibson came to his office on
April 18, Mr. Quillen observed that his eyes were black and his
nose was crooked. Mr. Quillen stated that "it was obvious 11 that
Mr. Gibson had been hit "with something hard, 11 and that
Mr. Gibson told him that Mr. Cook hit him in the eye and nose
with his dinner bucket on Monday evening (April 16}; after
leaving the mantrip and while they were proceeding to the area
where their vehicles were parked. · Mr. Quillen instructed
Mr. Gibson to seek medical attention, and after Mr. Gibson left
to go to the hospital, Mr. Quillen summoned Mr. Cook to the mine
to speak with him about the incident.
Mr. Quillen stated that when he spoke with Mr" Cook 7 and
told him what Mr. Gibson had related to him, Mro Cook told him
that "nothing happened, 11 and that if Mr. Gibson was hurt e1 it
happened after he left the mine. 11 Mr. Quillen confirmed that he
also spoke to miner Benny Campbell, who rode to work with
Mr. Gibson, and that Mr. Campbell informed him that when he got
into Mr. Gibson's truck before leaving the mine, Mr. Gibson's
nose was bleeding that it and bled all the way home.
Mr. Cook testified that prior to leaving the mine at the end
of their work shift on April 16, 1990, Mr. Gibson had been
calling him names all evening in the mine. Mr. Cook stated that
after exiting the mine, and as he was walking up the bank, he had
his dinner bucket in his left hand, and that Mr. Gibson shoved
him backwards. Mr. Cook stated that as he was trying to catch
his balance, "I may have thrown my hand." He confirmed that
Mr. Gibson "did have a scratch on top of his nose," but denied
that he struck Mr. Gibson with his fist or with a punch (Tr.
26-27). Mr. Cook testified further that if he indeed swung his
bucket, it was because he was falling backwards, and was trying
to balance himself, and that if it struck Mr. Gibson "he walked
into it" (Tr. 45) and that "if he got hit, if I hit him," the
only way it could have happened is that his bucket inadvertently
struck Mr. Gibson on the nose (Tr. 76).
Mr. Cook testified that when Mr. Quillen spoke with him
after summoning him to the mine on Wednesday, April 18, after he
had spoken with Mr. Gibson, he (Cook) told Mr. Quillen that
Mr. Gibson had shoved him backwards. Mr. Cook denied that he
told Mr. Quillen that nothing had happened (Tr. 81). However, in

248

response to later bench questions, Mr. Cook stated that "nothing
happened," and that Mr. Quillen may have said something about the
incident. Mr. Cook further stated that he did not ask
Mr. Quillen to fire Mr. Gibson.and that he said nothing to
Mr. Quillen about Mr. Gibson (Tr. 96). Mr. Cook stated that he
said nothing to management about Mr. Gibson shoving him to the
ground, and he "guessed" that both he and Mr. Gibson said nothing
about this (Tr. 97).
Mr. Cook confirmed that when he spoke to Mr. Quillen following the April 16, incident, Mr. Quillen said nothing about firing
Mr. Gibson, and simply told him that he was on compensation. At
that point in time, and in light of Mr. Cook's testimony that he
did not want to see Mr. Gibson fired, I believe it is reasonable
to conclude that Mr. Cook would have said nothing to jeopardize
Mr. Gibson's job. Coupled with his rather contradictory testimony concerning the shoving incident, I believe that Mr. Quillen
testified truthfully that Mro Cook said nothing to him about
Mr. Gibson 1 s shoving him to the ground, and that Mr. Cook made
the statement that "nothing happened. 10
In a posthearing letter filed by Mr. Cook in support of his
case, he questions the severity of Mr. Gibson's injuries, and the
fact that there is no evidence that Mr. Gibson ever had surgery
for his injuries. Mr. Cook suggests that it was possible that
the x-ray reports may have related to previous injuries suffered
by Mr. Gibson, and that the respondent "handpicked" and selected
the medical records to support its case. Mr. Cook further
asserts that all of Mr. Gibson's past and future medical records
should have been produced so that he could have an opportunity to
review them and verify that the injuries sustained by Mr. Gibson
were in fact the result of the incident of April 16, 1990.
Mr. Cook also takes issue with the documentary evidence
produced by the respondent with respect to Mr. Gibson's state
workers' compensation claim (exhibits R-7 through R-10). The
documents reflect that Mr. Gibson filed a claim against the
respondent and its insurer, and that it was _contested by the
respondent. Mr. Gibson executed an-affidavit on May 4, 1990, in
connection with his claim, and in the space provided on the claim
form for an explanation of the "accident," the following typed
statement appears:
Prior to the date of the injury, there had been a
"switching" of job's at Southeast's Brinkley mine site.
Claimant had been operating a roof bolter and had
Wendell Combs as a helper. After the switch, Wendell
was operating the bolting machine claimant had operated. Wendell was dissatisfied with his roof bolting
position and blamed claimant. As they were leaving the
man trip on April 16, 1990, Wendell called out Jesse's
name and when Jesse turned around, Wendell hit him in

249

the face with his lunch bucket, and told him "It's all
your fault" (emphasis added) .
Mr. Cook argues that Mr. Gibson's affidavit is erroneous in
two respects, namely, (1) that.his last name is "Cook" and not
"Combs," and (2) that he (Cook) was not operating the roof bolt
machine. Mr. Cook makes reference to his last pay check stub
which shows that he was not paid the wage earned by a roof bolter
operator, and that this is proof of the fact that he was not
operating the roof bolt machine.
During the course of the hearing, Mr. Cook produced a copy
of the findings of a state unemployment examiner made in connection with his unemployment claim (exhibit C-2). The examiner
found that Mr. Cook was not disqualified from receiving benefits,
and his finding in this regard is as follows:
The claimant was discharged for allegedly engaging in
fighting while on company property. He has denied this
allegation and there is insufficient evidence available
to substantiate the charge. Therefore, it
concluded
the separation was for reasons non-disqualifying under
the law.
Mr. Cook suggested that since fighting would be an admission
of misconduct, and since the unemployment examiner found that he
was not guilty of misconduct, the alleged fight in question never
occurred (Tr. 39). Mr. Cook further asserted that it was possible that Mr. Gibson lied when he executed the affidavit in
connection with his compensation claim, or that someone "had to
put him up to lying" (Tr. 90-91). Mr. Cook also suggested that
if he had been fired for "misconduct," the respondent would have
contested the unemployment examiner's finding (Tr. 136).
Mr. Quillan's conclusion that Mr. Gibson and Mr. Cook
engaged in a fight was based on the results of Mr. Quillen's
inquiry into the incident, including his interviews with the two
principals, and another miner, and his persgnal observation of
Mr. Gibson after the incident. Mr.· ,Gibson and the other miner
did not testify in this case, and neither party made any attempt
to subpoena them for testimony. Mr. Cook acted pro se, and prior
to the day of the hearing, the respondent, through Mr. Quillen,
was acting pro se and retained counsel shortly before the commencement of the hearing. The documentary evidence presented by
the respondent was obviousiy obtained and introduced at the
hearing to support its contention that Mr. Gibson was injured in
a fight with Mr. Cook.
Mr. Quillen's testimony regarding Mr. Gibson's purported
statements that Mr. Cook struck him with his dinner bucket
without provocation is hearsay. With respect to the hospital
records concerning Mr. Gibson's injuries, they appear to be

250

genuine and ordinary business records maintained by the hospitals
and attending physicians. Ordinarily, such records are admissible pursuant to the recognized "business records" hearsay exception rule when a foundation for their admissibility is established through testimony or affidavit of the custodian of the
records or other qualifying witness. Absent these prerequisites
for admissibility, the records are still hearsay. However, I
have no reason to question their reliability or authenticity, and
there is no evidence to rebut the presumption that they were
obtained by the respondent from the hospital and Mr. Cook raised
no objections (Tr. 99). In any event, I consider the hearsay
statement attributed to Mr. Gibson and the hospital records in
question to be relevant and material, and the Commission has held
that such evidence is admissible in Mine Act proceedings.
See~
Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8, 12 no 7
(January 1981), aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied,
77 L.Ed.2d 299 (1983); Mid-Continent Resources, Inco, 6 FMSHRC
1132, 1135-1137 (May 1984). The weight of such evidence is
within the sound discretion of the presiding judgeo
A hospital record from the Hazard Regional Medical Center
(exhibit R-1), reflects that Mr. Gibson was x-rayed on April 18,
1990, for injuries diagnosed as "closed fracture of nasal bones,q~
and that his employment was verified by Mro Quillen. Exhibit
R-3, a copy of a hospital emergency room record, reflects that
Mr. Gibson was seen by a doctor on April 18, 1990, for injuries
diagnosed as "fractured nasal bones, contusions, and left orbit ..vu
and on the space provided for writing in the patient's complaint,
there is a notation which reads "states was hit in left eye with
dinner bucket monday night." Another hospital form dated
April 18, 1990, reflects the findings by a radiologist that
Mr. Gibson had a "comminuted fracture involving the tip of his
nasal spine" but "no evidence of any fractures of the left
orbit."
Exhibit R-6, is a clinic doctor's report dated April 20,
1990, apparently made in connection with a workman's compensation
claim filed by Mr. Gibson, and the results o.f- the examination
conducted by the doctor, reflects that Mr. Gibson had black eyes,
a deviated nasal septum, external nose deviation to the right,
and fractured nasal bones. The space provided on the report form
for the "history of accident" contains the following typewritten
11
statement:
32 year old man was hit on the nose on April 16 at
work, 10:00 p.m. Having nasal bleeding, which has stopped. Also
having nasal obstruction and headaches, some numbness over left
check." The report reflects that Mr. Gibson was employed by the
respondent at the time of his examination, that the doctor
scheduled him for "closed reduction of nasal bones" on April 27,
and that he would be out of work from April 16 to April 27,
inclusive.

251

Mr. Cook's assertion that the injuries sustained by
Mr. Gibson, as reflected in the aforesaid hospital reports, may
have been incurred at a time earlier than April 16, and may have
been injuries unrelated to that incident, are rejected.
I find
the information contained in these reports to be consistent and
reliable, both as to the injuries sustained by Mr. Gibson, and
the time frames shown in the reports, as well as to the information obtained by Mr. Quillen in the course of his inquiry.
Mr. Cook's arguments concerning the accuracy of the information contained in the workers' compensation application filed by
Mr. Gibson are well taken and I have given this information
little weight. However, Mr. Cook's suggestion that the findings
of the examiner in connection with his own unemployment claim
that he was not discharged for ''misconduct" establishes that no
fight ever occurred
rejected. Mr. Cook confirmed that he
provided some information in connection with his claim, and that
the respondent had apparently filed a reply indicating that he
was discharged for fighting (Tr. l39). Mr. Quillen could not
recall whether he protested the claim and he indicated that it is
difficult to prevent anyone from receiving unemployment in
Kentucky (Tr. 137). Respondent's counsel pointed out that
unemployment benefits are paid out of a trust fund 1 that 99
cent of the cases go uncontested, that it is a costly process 1
and that it would have been easier for Mr. Quillen not to protest
the claim (Tr. 138).
The examiner's conclusion that Mr. Cook was not disqualified
from receiving unemployment was based on his finding that there
was insufficient available evidence to support the allegation
that Mr. Cook was discharged for fighting.
In the absence of any
further information as to what evidence was available to the
examiner at the time he made that finding, it would appear that
his finding was based on Mr. Cook's denial that he was discharged
for fighting, and the respondent's assertion that he was.
It
would further appear that the respondent did not pursue the claim
further, and that the examiner gave Mr. Cook.the benefit of the
doubt.
In any event, I am not .bound by th~ examiner's finding,
which was made in the abstract, and., I have given it no weight.
The issue before me is whether Mr. Cook's discharge was in any
way connected with or prompted by, the exercise of any protected
rights on his part.
Albert Vigne v. Gall Silica Mining
Company, 6 FMSHRC 2625 (November 1984).
In his discrimination complaint letters, Mr. Cook insisted
that nothing had happened on the evening of April 16, 1990, and
he suggested that the respondent fabricated the fighting incident
out of retaliation for his prior discrimination complaint.
However, after careful consideration of all of the evidence and
testimony in this case, including Mr. Cook's belated admissions
concerning his encounter with Mr. Gibson, I conclude and find
that something did in fact happen on the evening in question.
I

252

further conclude and find that what happened was that after
leaving the mine at the end of the work shift on Monday evening,
April 16, 1990, and after an evening of name calling by
Mr. Gibson, Mr. Gibson and Mr. Cook engaged in an altercation.
During that altercation, Mr. Cook was shoved to the ground
sustaining an injury to his head which required medical attention
(exhibit C-5), and Mr. Gibson was struck in the face with the
dinner bucket that Mr. Cook was holding in his hand, sustaining
rather severe injuries to his nose and face. I find it difficult
to believe that the injuries sustained by Mr. Gibson were the
result of an "inadvertent swing of the bucket" while Mr. Cook was
falling after he was shoved by Mr. Gibson, and I believe that
Mr. Cook retaliated by consciously striking Mr. Gibson in the
face with his dinner bucket. Under all of these circumstances, I
conclude and find that Mr. Cook did in fact engage in a fight
with Mr. Gibson on mine property on the evening in question.
Disparate Treatment
In his complaint, as well as at the hearingp Mr. Cook
maintained that arguments and fighting, both underground, and on
the surface, were common occurrences at the mine, that nothing
was ever done about it, and he questioned why he should be
"singled out" and fired (Tr. 23, 26, 54). He identified miner
Greg Horn as one individual who engaged in a fight and who 00 was
fired and transferred to another mine" (Tr. 24). During his
cross-examination of Mr. Quillen, Mr. Cook identified two other
miners (Larry Collins and Tommy Gibson), as two individuals who
purportedly engaged in a fight over a dispute concerning 11 a belt
drive" prior to his discharge (Tr. 114).
Mr. Cook stated that he informed Mr. Quillen about the
Collins-Gibson fight prior to his discharge, and Mr. Quillen
denied that anyone had ever reported that alleged incident {Tr.
114-115). Mr. Quillen confirmed that he was not aware of any
prior fights on mine property, and he reiterated that "it is
common sense you don't fight on mine property" and that "it is
also Kentucky mine law that you don't hurt anybody around a coal
mine" (Tr. 124). Mr. Quillen confirmed that prior to the discharge of Mr. Cook and Mr. Gibson, he had not previously fired or
disciplined other miners for fighting on mine property (Tr. 126).
Contrary to his testimony that he informed Mr. Quillen about one
of the purported prior fights, and in response to an earlier
bench question as to whether or not anyone ever said anything
"about the fighting and all this carrying on" at the mine,
Mr. Cook responded "No" (Tr. 55).
I find no credible or probative evidence to support any
conclusion that Mr. Quillen was aware of any prior fights at the
mine. Mr. Cook confirmed that Mr. Quillen was never underground
when any of the "quarreling and bickering" was going on, and
absent any evidence to the contrary, I cannot conclude that

253

Mr. Quillen knew of any prior fights and failed to act. I find
Mr. Cook's earlier denials that anyone ever said anything about
these incidents, and his later assertion that he told Mr. Quillen
about at least one purported fight to be contradictory and not
credible. Further, Mr. Cook himself confirmed that at least one
miner who engaged in a purported prior fight (Greg Horn) was
either fired or transferred for fighting. More to the point
however, is the fact that both Mr. Gibson and Mr. Cook were
discharged for the fight which occurred on April 16, 1990. Under
all of these circumstances, I conclude and find that both of
these individuals were treated equally, and Mr. Cook's inference
of any disparate treatment by the respondent with respect to his
discharge are.rejected.
Respondent's Motivation for the Discharge of Mr. Cook
In view of the foregoing findings and conclusions, I conclude and find that Mr. Cook has failed to establish a prima
facie case of discrimination.
Based on a preponderance of all of
the credible and probative evidence presented in this caseF I
conclude and find that Mr. Quillen 1 s determination that Mr. Cook
had engaged in a fight on mine property with Mr. Gibson on
April 16, 1990, was based on all of the evidence then available
to him.
I further conclude and find that Mr. Quillen made a
reasonable 1 credible 1 and plausible determination, and that the
discharge which followed was justified.
David Hollis v.
Consolidation Coal Company, 6 FMSHRC 21 (January 9, 1984); Bruno
v. Cyprus Plateau Mining Corp., 10 FMSHRC 1649 (November 19,
1988), aff'd, No. 89-9509 (10th Cir., June 5, 1989) (unpublished); James W. Dickey v. United States Steel Mining Co., Inc.,
5 FMSHRC 519 (March 1983), Commission review denied, 5 FMSHRC
(May 1983), aff'd, Dickey v. FMSHRC, 727 F.2d 1099 (3d Cir. 1984)
(upholding the discharge of miners for fighting) .
I further conclude and find that Mr. Quillen's decision to
discharge Mr. Cook was motivated by the fight, rather than any
intention by Mr. Quillen to retaliate against Mr. Cook for his
prior discrimination complaint. In this regard, I take particular note of the Commission's decision in Bradley v. Belva Coal
Company, 4 FMSHRC 982 (June 1gs2). Citing its Pasula and Chacon
decisions, the Commission stated in part as follows at 4 FMSHRC
993:
"* * * Our function is not to pass on the wisdom or fairness of such asserted business justifications, but rather only to
determine whether they are credible and, if so, whether they
would have motivated the particular operator as claimed." On the
facts presented in Mr. Cook's case, I conclude and find that the
respondent's stated reason for the discharge of Mr. Cook is both
credible and reasonable in the circumstances presented.

254

ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case,· I conclude and find that the
complainant has failed to establish a violation of section 105(c)
of the Act. Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

~~1o~

Administrative Law Judge

Distribution:
Wendell Cook, HC 85, Box 652, Whitesburg, KY 41858
(Certified Mail)
Daniel V. Quillen, Jr., Vice President, South East Coal Company,
P.O. Box 219, Isom, KY 41824 (Certified Mail)
James w. Craft, Esq., P.O. Box 786, Whitesburg, KY 41858
(Certified Mail)

/fL

255

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

FEB 19 1991
CIVIL PENALTY PROCEEDING

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

Docket Noo LAKE 89-68-M
A.C. Noo 21-02942-05504
Steens Pit Mine

WARREN STEEN CONSTRUCTION,
INC.
Respondent
1

CIVIL PENALTY PROCEEDING

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

Docket Noo LAKE 89-93-M
A.C. No. 21-02942-05505-A

v.

Steens Pit Mine

WARREN STEEN, Employed by
WARREN STEEN CONSTRUCTION,
INC.,
Respondent
DECISION

Appearances:

Before:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor (Secretary);
Robert E. Mathias, Esq., Dulut~, Minnesota for
Warren Steen Construction, Irie. (Steen
Construction) and for Warren Steen, individually.

Judge Broderick

STATEMENT OF THE CASE

The Secretary seeks civil penalties from Steen Construction
for two alleged violations of the mandatory standard in 30 C.F.R.
§ 56.12071.
In a separate proceeding, the Secretary seeks a
penalty under section llO(c) of the Mine Act from Warren Steen
individually on the ground thatas the agent of a corporate
operator, he knowingly authorized, ordered or carried out the
violations committed by Steen Construction. The cases were
consolidated for the purposes of hearing and decision. Pursuant
to notice, the cases were called for hearing in Duluth, Minnesota
on November 14, 1990. James King, Jack Hufford, Mark Belich and
Larry Aubuchon testified on behalf of the Secretary. Warren

256

Steen and Tom Duesler testified on behalf of Steen Construction
and Warren Steen. Counsel for the Secretary and for the
respondents have filed post-hearing briefs. I have considered
the entire record and the contentions of the parties in making
this decision.
FINDINGS OF FACT
1. At all times pertinent to these proceedings, Steen
Construction was the owner and operator of a sand and gravel pit
in Carlton County, Minnesota known as Steen's Pit. Respondents
stipulate that the mine produces products which enter interstate
commerce or its operations effect interstate commerce. The
business was sold on May 1, 1989, but is still operated under the
name Steen's Pit.
2. Steen 1 s Pit actually included three pits. The main pit
covered a total area of about 54 acres. It produced wash gravel"
It included a crushing operation and a washing plant" Steen
Construction had operated the pit for about 20 years"
3. There was a drive-in theater adjacent to the pit, and
Steen Construction's three phase power came through the theater
property" Steen Construction purchased the property in about May
19880
4. In July 1988, approximately nine persons were employed
at Steen's Pit, including truck drivers. Three or four persons
worked on the pit. Steen Construction is a small operator.
5. Between July 6, 1986 and July 5, 1988, Steen
Construction was cited for one violation of a mandatory health or
safety standard. This history is not such that a penalty
otherwise appropriate should be increased because of it.
6. Power was supplied to Steen's Pit by the Minnesota Power
and Light (MPL). It constructed a 12,000 volt line on to the
Steen Pit property.
7. Some months prior to July 1, 1988, MPL representatives
observed that there were piles of gravel encroaching on the right
of way of the power line. The pit was not being operated at the
time. MPL cautioned Steen that he was working too close to the
power wire. Steen replied that he needed some time to relocate
the pile. There also was some discussion about relocating the
power line.
8. on July 1, 1988, Gary Jobe, 23 years of age, was
employed by Steen Construction as a crusher helper. He had
worked for Steen for about 2 months. He was not given any formal
safety training.

257

9. At about 9:30 a.m., on July 1, 1988, Jack Hufford,
front-end loader operator, began making a new row of gravel
piles. The loader was hooked by a chain to the 80 foot Nordberg
stacker-conveyor. Hufford pulled the conveyor to the area where
a new row was to be made. Jobe walked alongside the conveyor and
signalled Hufford to stop. Jobe then threw a plank on the ground
to stop the conveyor. However the conveyor rolled over the plank
and continued for about 5 feet. Jobe pushed against the frame of
the conveyor in an attempt to stop it when the conveyor came in
contact with the overhead 12,000 volt power line. Job was
jolted, ran and fell to the ground. CPR was administered; he was
taken to the hospital by ambulance. He was pronounced dead by
electrocution at 10:20 a.m., July 1, 1988.
10. On July 6, 1988, Federal Mine Inspector James King
conducted an investigation of the July 1 fatal accident. The
plant started up while King was on the premises and the stacker
conveyor was still below the energized 12,000 volt power lineo
It was approximately 8 feet directly below the line.
11. On July 6, 1988, at about 10:00 a.m., Inspector King
told Mr. Steen that he was issuing a 104(d) (1) citation for the
violation of 30 C.F.R. § 56.12071 which occurred on July 1.
12. When Inspector King discovered that the plant was
starting up with the conveyor still under the power line, he
obtained permission to conduct a regular inspection (he had been
authorized only to conduct an investigation of the fatality). He
told Warren Steen that the equipment would have to be moved.
Steen asked to be allowed to operate for two or three weeks
before moving the conveyor. The'top of the head pulley of the
conveyor was approximately 8 to 8-1/2 feet from the energized
main conductor lines. The ground line was about 3 feet from the
head pulley.
13. Inspector King issued a 104(d) (1) withdrawal order at
about 10:30 a.m., forbidding operation of the conveyor in the
location where it was placed. The order all~ged a violation of
30 C.F.R. § 56.12071 on July 6, 19~~·
14. The citation and order were terminated the same day
when the equipment was shut down and the conveyor moved away from
the power line.
15. warren Steen Construction, Inc., is a Minnesota
Corporation. It was formed on April 9, 1976. Its president and
incorporator was Warren Steen.
16.
years.

Warren Steen operated at Steen's pit for almost 20

258

17. Warren Steen personally directed the operation at
Steen's pit. When he was away "I guess everybody--like Jack
Hufford has worked two years, he was probably more in charge than
the other fellow." (Tr. 72.) At the time of the fatal injury to
Mr. Jobe, Steen was not on the.property but was getting fuel. He
returned just after the accident occurred.
18. Steen stated that he was not aware of a federal
regulation requiring machinery to be 10 feet or more from an
overhead power line. He also testified that the stacker-conveyor
was in the same location in September 1987, and no citation or
order was issued during an MSHA inspection.
19. Steen construction had been inspected by federal
inspectors, most recently in September 19870 Steen had requested
a book of safety regulations, but had not received oneo
20. The stacker conveyor had chock blocks on them which
were designed to stop the conveyor when it is moving and to keep
it secure. They were not used on July lv 19880
STATUTORY PROVISION

Section llO(c) of the Act provides in part as

follows~

Whenever a corporate operator violates a
mandatory health or safety standard o o • 1
any director, officer, or agent of such
corporation who knowingly authorized,
ordered, or carried out such violation • • •
shall be subject to the same civil penalties
• • • that may be imposed upon a person under
subsections (a) . • • •
REGULATORY PROVISION

30 C.F.R.

§

56.12071 provides as follows:

When equipment must be moved or operated near
energized high-voltage powerlines (other than
trolley lines) and the clearance is less than
ten feet, the lines shall be deenergized or
other precautionary measures shall be taken.
ISSUES

1. Whether Steen Construction violated 30 C.F.R.
on July 1 and on July 6, 1988?

§

56.12071

2. If so, whether the violations were significant and
substantial and resulted from Steen Construction's unwarrantable
failure to comply with the mandatory standard?

259

3.

If so, what are the appropriate penalties therefor?

4.
If a violation or violations are established for Steen
Construction, whether Warren Steen knowingly authorized, ordered
or carried out such violation?
5.

If so, what is the appropriate penalty therefor?

CONCLUSIONS OF LAW
1. Steen Construction was subject to the provisions of the
Mine Act in the operation of Steen's Pit. Warren Steen was an
officer and agent of Steen Construction.
I have jurisdiction
over the parties and subject matter of these proceedings.
2. On July 1, 1988, Steen Construction operated an 80 foot
Nordberg Stacker conveyor within 10 feet of an energized high
voltage power line, so that the conveyor came in contact with the
power line. The line was not deenergized and other precautionary
measures were not taken. This is a violation of 30 C.F.R. §
56.12071.
3. A miner who was in contact with the conveyor was
electrocuted. The electrocution resulted from the violation
referred to in Conclusion 2. The violation was extremely
serious. It was properly designated as significant and substantial.
4. Steen Construction had been cautioned by MPL about
working too close to the power line prior to the fatal accident.
The operation of a large metal machine under a high voltage line
is inherently dangerous, and should be recognized as such by a
mine operator. The violation resulted from the operator's
reckless disregard for the safety of the miners.
It was properly
designated as an unwarranteble failure to comply with the safety
standard involved.
5. Based on the criteria in section llO(i) of the Act, I
conclude that a penalty of $8000 is appropriate for the violation
on July 1,1988 (Citation 3262564) :·
6. On July 6, 1988, Steen Construction commenced operation
with the conveyor being between 8 and 8-1/2 feet directly below
the energized high voltage _line. This is a second discrete
violation of 30 C.F.R. § 56.12071 (Citation 3262565).
7. The violation was extremely serious and was likely to
result in serious injury if mining had been allowed to continue.
It was properly designated as significant and substantial.
8. The operator had experienced a fatal accident five days
previously as a result of the same condition. This violation

260

(July 5, 1988) resulted from the operator's reckless disregard
for the safety of the miners, and was therefore an unwarrantable
failure violation.
9. Based on the criteria in section 110(e) of the Act, I
conclude that a penalty of $8000 is appropriate for the violation
on July 5, 1988 (Order 3262565).
10. Warren Steen was an experienced operator of a sand and
gravel mine. He knew that his company was subject to the Mine
Act and its regulations. As the 10th Circuit Court of Appeals
stated in Emery Mining Corp. v. Secretary of Labor (a case under
section 110(a)) 744 F.2d 1411, (10th Cir. 1984) at 1416~
. . . as a general rule those who deal with the
Government are expected to know the law and may not
rely on the conduct of government agents contrary to
law . . .

* * *

Particularly where mandatory safety standards are
concerned, a mine operator must be charged with
knowledge of the Act's provisions and has a duty to
comply with those provisions.
In any event, whether Mr. Steen knew of the specific regulation
regarding the minimum clearance between metallic equipment and
high voltage lines, he certainly knew or had reason to know that
operating such equipment close to high voltage line was unsafe.
Cf. Kenny Richardson, 3 FMSHRC 8 (1981); Roy Glenn, 6 FMSHRC 1583
(1984). I conclude that Warren Steen knowingly authorized,
ordered or carried out the violations of the corporate operator.
Warren Steen's violation was serious and resulted from reckless
disregard for safety. I conclude that an appropriate penalty for
the violation is $5000.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

1.

citation 3262564 and order 3262565 are AFFIRMED.

2. Steen Construction shall, within 30 days of the date of
this decision, pay to the secretary $16,000 for the violations
found herein.

261

3. Warren Steen shall, within 30 days of the date of this
decision, pay to the Secretary $5000 for the violation found
herein.

~i'vtL5 ft;l3tt;d:A/z6~
::J

~ames A. Broderick
Administrative Law Judge

Distribution:
Jo Philip Smith, Esqo, U.S. Department of Laborv Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Robert E. Mathias, Esq., 1217 East First Street, Duluthu MN 55805
(Certified Mail)
slk

262

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

FEB 19 199t

WYOMING FUEL COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. WEST 90-217-R
Order No. 3241309~ 5/5/90

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

Golden Eagle Mine
Mine I.D. 05-02820
DECISION

Appearances:

Before:

Lawrence J. Corte, Esq., Wyoming Fuel Company,
Lakewood, Colorado, for the Contestant;
Margaret A. Miller, Esq., U.S. Department of
Labor, Office of the Solicitor, Denver, Colorado,
for the Respondent.

Judge Morris

This contest case is before me pursuant to Section 107(e) (1)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801, et seg. (the "Act").
Contestant Wyoming Fuel Company
("WFC") seeks to invalidate Order No. 3241309 issued on

263

May 5, 1990, under § 107(a) 1 of the Act.
invalidate modifications of the order. 2

WFC further seeks to

ISSUES

The issues presented are whether a condition of imminent
danger existed so as to justify the § 107(a) order. If the order
was properly issued, did MSHA abuse its discretion in the
subsequent modifications and in keeping the § 107(a) order in
effect.
Order Noo 3241309 closed the No. 7 Entry South Mains from
Crosscut No. 5 to Crosscut No. 13. This area was adjacent to the
longwall face ·Shield system at the Golden Eagle Mine. All
personnel were withdrawn from this portion of the mine because of
the alleged imminent danger. The order reads as
lows;
The following conditions
collectively
constitute an imminent danger were observed
in entry #7 third south mains longwall
recovery room, and longwall face, roof
conditions have deterioratedp causing
(header?) cribbing to
and crush,
cribbing crushed.
The cited portion of the Act provides as

follows~

Procedures to Counteract Dangerous Conditions
Sec. 107.
(a) If, upon any inspection or
investigation of a coal or other mine which is
subject
to
this
Act,
an
authorized
representative of the Secretary finds that an
imminent danger exists, such representative
shall determine the extent of the area of such
mine throughout which the danger exists, and
issue an order requiring.the operator of such
mine to cause .all persons, except those
referred to in section 104(c), to be withdrawn
from, and to be prohibited from entering, such
area until an authorized representative of the
Secretary determines that such imminent danger
and the conditions or practices which caused
such imminent danger no longer exist.
The
issuance of an order under this subsection
shall not preclude the issuance of a citation
under section 104 or the proposing of a
penalty under section 110.
2

The contest filed by WFC places modifications 1 through 6
in contest.
However, the evidence indicates there were 9
modifications to the original order.
(See Judge's Exhibit 1).

264

Order No. 3241309 was modified six times during the period
from May 5 through May 9, 1990.
The first of these modifications was Order No. 3241309-01
which reads:
Wooden cribbing material was installed from
#5 Crosscut to #13 crosscut #7 entry South
Mains Recovery room, and outby areas.
Therefore, Order #3241309 in [sic] modified
to allow personnel to enter the longwall
recovery area, under the following condition
in longwall recovery plan dated 5/5/90 (MSHA
Order No. 3241309-0lu "Subsequent Actionn at
section II, uJustification for Action").
The second modification was Order No.

3241309-02~

Order #3241309 is modified to add additional
information. Item #8 Condition or Practice~
The cribbing over a total of 11 persons were
observed installing wooden cribs in area of
deteriorated roof conditions due to forward
abutment pressure.
(MSHA Order No. 324130902 u "Subsequent Action" at section IIP
"Justification for Action").
Subsequent modifications permitted only those persons
necessary to work underground as specified in the longwall
recovery plan, item 2.
(MSHA Order No. 3241309-03, "Subsequent
Action" at section II, "Justification for Action").
Later on May 8, 1990, the § 107(a) Order was modified again
to allow workers to install additional roof support to the
location of the shield face support system.
Finally, in modifications number five and six to the MSHA
Order, WFC was allowed to move the longwall. The fifth modification was Order No. 3241309-05, issued at
7:20 p.m. the evening of May 8, 1990. It stated the specific
methods that WFC must employ to continue its full recovery effort
of the longwall. It provides as follows:
Order #3241309 in modified to allow recovery
of longwall system under the following
conditions:
Item #1 Steel I Beam used as support;
Item #2 Maximum 10 foot advance cuts;
Item #3 Maximum 10 foot width of fact entry;
Item #4 all cutting and welding must comply;
CFR 30 Part 75.11106.

265

Item #5 Air reaching headgate face 38,000 CFM;
Item #6 Double row of cribbing in headgate
roadway;
Item #7 Replace damaged fibercrete cribbing with
wooden cribs prior to recovery;
Item #8 13 foot wide roadway approach and 10 foot
wide roadway on face line;
Item #9 8 foot resin bolt are to be used except
where hand held drill must be used with 6 foot
resin bolts for roof support. When EIMCO roof
bolt is used 8 foot resin bolt must be used;
Item #10 Resupport removal shields with wooden
cribbing material.
(MSHA Order No. 3241309-0Sr
"Subsequent Action 11 at section II u 01 Justification
for Action").
An expedited hearing was held in Denveru Colorado 9 on
September 21u 19900 The Secretary objected
the expedition of
the hearing for an imminent danger order; howeveru prior rulings
involving the parties were .held applicable.
(Tr. 4-6).
The Commission has been invited to consider the issue of
whether WFC is entitled to an expedited hearing.~ Accordingly, it
is unnecessary to again review the issues here. ~ See Wyomino
Fuel Company, 12 FMSHRC 1604 (August 1990)u (Review Granted,
September 1990)' see also, Wyoming Fuel Companyu WEST 90-112-R
WEST 90-116-R (Decision issued October 22, 1990)
SUMMARY OF THE CASE
This case involves a credibility determination concerning
the conditions in the Golden Eagle Mine in May 1990.
By way of background: at the time the § 107(a) order was
issued the Company's mining procedure consisted of a longwall
operation of 110 shields.
The initial stage of a longwalJ operation involves its
installation. This takes place in a "start-up room." Once the
coal has been extracted the longwall equipment is removed in what
is called a "recovery room." In that location the purpose is to
safely support and protect .the recovery room so the longwall
assembly can be fully and safely extracted in a minimum amount of
time (Tr. 15).
The Golden Eagle Mine uses a retreating longwall process.
such a process is the easiest because once you begin to mine the

3

In the case at bar, the contested order, No. 3241309, was
not terminated (Tr. 147, 156, 209).

266

coal you leave any problems you encounter behind you 4 (Tr. 24,
25).
(The arrows on Ex. S-1 show the direction of advance of the.
longwall).
Barrier pillars are generally located in a position adjacent
to the main entries.
(They are shown in green on Ex. S-1). The
200 foot barrier pillars at Golden Eagle provides protection for
the entries.
(Seven entries are shown in Exhibit S-1).
The longwall mining system advances when the shields are
lowered and pulled against the armored face conveyor (AFC). The
cutting shear is above the AFC. As the shear cuts into the face
the coal falls into the AFC.
(Tr. 34 9 37)
(Exhibit S-2
illustrates some of the testimony.)
As the longwall advances toward the barrier pillar
puts
stress on the coal in front of it (Tro 26 9 30). The coal barrier
protects the entries from ground movement which generally results
in floor heave or rib sloughage (Tr. 27 .
Once the longwall assembly reaches the barrier all coal
extraction activ'ity stops and the longwall equipment is removed.
(Tr. 28).
.
The height of the coal seam extracted is about six feet:
During the longwall process, with the shields
placeu
is
normal for miners to stand up inside and travel the aprono In
the Golden Eagle Mine the face was 550 feet long.
(Tr. 44)o
This is a typical width in the western United States.
(Tro 45).
o

FINDINGS OF FACT
1. Melvin Shively, an MSHA inspector and a person
experienced in mining, received a telephone call from Rick
Caller, WFC's health and safety manager. Mr. Callar stated the
company was experiencing a problem in their recovery area of the
longwall section (Tr. 129, 131).
2. Upon arriving at the mine, Mr. Shively and the company
safety supervisor, Frank Perko, went directly to the No. 7 entry.
(Tr. 132).

3. In the entry the inspector observed miners installing
wooden cribbing. He also saw massive cracking in the fiber
cribbing. There was a lot ·of pressure on the cribbing (Tr. 133).

4

Left behind can be a combination of fallen roof material,
floor heave, etc. It is commonly called "gob" (Tr. 25u 34).

267

(Exhibits S-7I, S-7G, S-7H and S-7L are photographs 5 showing
the condition of the fiber cribbing.)
4. The fiber cribbing was broken and the roof was working a
little bit and taking pressure. The roof was in the mold where
pressure was being transferred over the top of the area (Tr.
134) .
5. Bolts were popping, the roof was moving and timbers were
cracking. Fiber cribbing was also breaking, cracking and
crumbling off to the side (Tr. 135).

The wooden cribbing was as shown in Exhibits S-7B and S-7No
Exhibit S-7A shows a fiber crib that had broken and crushed awayo
A wooden cribbing had been installed behind it in an effort to
maintain support (Tr. 136) •.
6.
The wooden cribbing was moving and taking a lot of
weight (Tro 136).

There was a rib cutter in the roof.
(A rib cutter is a
crack in the roof that runs the length of the entry.) There was
also a lot of "rash". That is~ an area where you lose a lot of
coal top. The top moves and falls out. Rocks, roof and coal
laying on the mine floor indicated some of the roof had fal
(Tr. 137) •
7. Sap or moisture was leaking from the wooden cribbing
(Tr. 137, 138).
The inspector had to crawl into the tailgate area.
were 111 shields and "a bunch" were down (Tr. 139).

There

8. At 1315 hours Inspector Shively issued an imminent
danger order to protect employees from the hazardous roof
conditions he had observed. The inspector believed a roof fall
could cause a fatality in the area (Tr. 140, 141). The roof was
still moving. Continual movement causes additional cracks and
fractures in a roof.
(Tr. ·144).

5

Some of the photographs in this case were presented on a
single cardboard panel.
The Secretary explained that a
presentation had been made involving the photographs. At that time
the photographs were grouped by circled numbers 1, 2, 3, 4, 5 and
6. The same presentation was made at the hearing. Each photograph
was identified with its identifying number adjacent to it.
Each
photograph was also identified on the back by the same number that
appears adjacent to it.

268

9. The imminent danger order affected No. 6 to No. 13 entry
as well as No. 6 to No. 13 crosscut of the No. 7 entry of the
third south main (Tr. 141, 142).
10. The § l07(a) order was modified to allow cribbing to be
done from a safe location. In other words, "crib your way" into
the area (Tr. 142). The inspector said seven miners, monitored
by a certified person, could work from a safe location (Tr. 143).
11. The second modification to the Order allowed eleven
miners in a cribbing crew (Tr. 144).
12.
The third modification resulted from the company 9 s plan
as to how they were going to continue cribbing and recover this
area (Tr. 144) •

13. The company proposed to come into the headgate area and
install bridge planking and rock-lock (Tro 145)0 The third
modification allowed the company time for the work to be done as
shown in the equipment recovery plan. The plan had been
submitted by management's Rick Caller (Tr. 145).

14. Modification No. 5 contains the conditions WFC had
comply with to work in the area. The ten items were based on
information received from tech support people and Mr. Smith [Lee
Smith] (Tr. 146).
15. The order has not been terminated (Tr. 147). In
Inspector Shively's opinion the installation of additional
support in the No. 7 entry should only be done while protecting
the personnel doing the work (Tr. 148, 151).
16. The order was directed to the miners to require them to
work from a safe location, and make a safe travelway into the
area (Tr. 149). Without necessary support, the biggest part of
the entry would have been lost (Tr. 149).

17. Mr. Shively agreed the operator complied in good faith
with the modifications.
18.
In Inspector Shively's opinion danger of a roof
collapse is still present. As a result the § 107(a) order is
still in effect because of the possibility of roof failure within
the area at any given time.
(Tr. 156).
19. A lot of the cribs were failing (Tr. 158). Without the
cribs the entry would have been lost (Tr. 159). The cribbing was
squeezing and bending.
(Tr. 160).

20. In Inspector Shively's opinion the removal of the
intermediate pillar caused the No. 7 entry recovery room to fail.
(Tr. 166).

269

21. The area subject to the order was about 700 feet in a
straight line.
(Tr. 168). The cracks indicated the roof had
failed; it was cracked and .broken.
(Tr. 169).
22. The conditions observed by the inspector told him the
miners needed protection.
If the 200 foot barrier pillar had
been in place the roof would not have been cracked or broken.
(Tr. 170) .
23. The inspector told management the miners had to work
from a safe location.
(Tr. 173).
24.
LEE SMITH, an MSHA field office supervisor,
a roof
control specialist (Tr. llv 12). At the direction of MSHA 0 s
district manager Mr. Smith went to the Golden Eagle mine arriving
there May 8~ 1990.
(Tr. 45).

25. Mr. Smith found the longwall system was experiencing
unstable ground conditions. The. width of the barrier
was
zero (where the longwall had mined through) to 15
26. The No. 7 entry, closest to the barrier, was in stages
of failure.
There was stress transference; where the roof and
met the area was experiencing failure.
(Tr. 46). There were
large cavities in the mine roof. The cribs were
a
great deal of weight and they were beginning to
away from the mine roof"
(Tr" 47)o Cribs installed
a unirorm
fashion are depicted in Exhibit S-6B; the function of crib was
described by the witness.
(Tr. 48).

27. Exhibits S-7A, B, c, D, E, and F show the cribs in
Entry No. 7 were receiving great stress; pitch was flowing down
the crib; they were attempting to roll out. They were in almost
total failure.
(Tr. 49, 50)
o

28. The wooden cribs were installed to replace the failed
f ibercrete cribs and to preserve the longwall recovery room.
But
the cribs were not able to support the root (Tr. 50). The crib
shown in Exhibit S-7C was in failure.
It is not safe to travel
in an area where a crib has failed.
(See Exhibit S-7C).
(Tr.
51, 54).
29. The roof had tension fractures, cracks and sloughage
indicating it had failed (Tr. 51).
The fibercrete cribs in Entry No. 7 had all failed.
Exhibits S-7I, H, G, L and N show the failed cribs.
(Tr. 5253). Roof and floor heaves were a problem here.
(Tr. 54).
30. The condition of the cribs indicated to Mr. Smith that
the roof was already in failure.
The cribs were rolling, a great

270

deal of $loughage, apparent cutters, and fallen away roof bolts
indicated a roof fall was imminent.
(Tr. 55).
31. Popping and breaking sounds indicated the coal ribs
were failing or attempting to move.
(Tr. 56).
32. The remnants of the barrier pillar between the base and
the No. 7 entry had yielded and was turning to rubble. It had
lost its load carrying capacity.
(Tr. 56). The conditions found
by Mr. Smith existed along the entire face of the longwall.
33. The longwall shield assemblies from shield No. 70 to
No. 90 had collapsed from the stress (Tr. 57; see Exhibits S-3G
and S-3E). Further, the burst values in the hydraulic system
were weeping.
{Tr. 58). The shields were almost sitting on top
of the spill plates.
(Tr. 59).
34. The company was resupporting the headgate area at the
stage loader. The beams were to hold the roof in place until the
longwall assembly could be extracted.
(Tr. 61).
35. It would be very difficult to safely and fully extract
the longwall.
(Tr. 61). The shields had lost their ability to
move up and down and the jacks could not travel.
(Tr. 62).
In
order to remove the shields the operator would probably remove
under the coal the jack to have room to maneuver.
36. The longwall had received abnormal stress. In
Mr. Smith's opinion the longwall panel overrode the barrier
pillar and was attempting to equalize itself on the coal pillars
between No. 7 and No. 6 entries.
(Tr. 64).
37. The longwall was in danger of going solid. That is,
there would be no possibility of travel between the longwall
shield and the apron.
(Tr. 64).
(Exhibits S-3D and S-3F show
miners crawling to the face).
38. The wooden cribs shown in S-7B, c, D, and E are in an
advanced stage of failure.
Floor fractures~are evident in
Exhibit S-7B. Roof fractures show fn Exhibit S-5A and S-5B
indicate the roof is in failure.
(Tr. 65). The roof failure
indicate a roof fall is imminent: it provides a serious hazard to
the miners (Tr. 65).
39. On May 8th the roof in No. 7 entry was in mid-failure
and it was going to fall.
(Tr. 67).
40. The roof can fail to the point where the operator may
not be able to remove the shields. In such circumstances the
operator may wait a year or two for the area to stabilize and
then remove the equipment. However, the conditions may

271

deteriorate to the point where the longwall would be lost.
67, 68).

(Tr.

41. on May 8th, the operator was not employing a normal
method to recover the longwall.
(Tr. 69).
42. On May 8th, Mr. Smith did not consider the No. 7 entry
to be a safe working place.
(Tr. 71). He entered the middle
entry of the tailgate and walked 1200 to 1400 feet looking for
signs of unstable roof conditions.
(Tr. 71).
43. Mr. Smith was aware of the § 107(a) order and its
modification to allow mines to work in the area.
(Tr. 72).
44.
As a result of his visit to the mine Mr. Smith 1 s seven
or eight recommendations were incorporated into Inspector
Shively's order as modification No. 5.
(Tr. 73).
(Judge 0 s
Exhibit 1).

45.
Based on his observations of May 8thf Mr. Smith
believed the imminent danger order was properly in place.
(Tr. 83). If the roof had failed a serious injury or death could
have occurred.
The immediate roof had separated from the ma

roof.

(Tr. 84) •

46. Mr. Smith was not aware of any longwall recovery method
that does not leave a barrier pillar between the longwall and the
main entry development.
(Tr. 86).
RICK CALLOR testified for WFC. He serves as the operator's
manager of health, safety and human resources. He is experienced
in mining.
(Tr. 199, 200).
He has been involved in six or seven longwall removals.
(Tr. 200).
In a conventional longwall move he has observed
adverse roof conditions.
(Tr. 201).
On May s, 1990, Mr. Callar advised MSHA that the shear of
the longwall would no longer pass under the shields. This was
due to the limited space. In view of this situation the company
decided to use a different method of longwall recovery.
Mr. Callar did not accompany the inspector underground.
(Tr. 202). The previous night Mr. Callar did not feel there was
a condition of imminent danger. However, he believed Inspector
Shively sincerely felt such a condition existed.
Mr. Callar and Inspector Shively discussed § 103(k) versus a
107{a) order.
(Tr. 203). The inspector said he would issue a
control order and no assessments would be involved.
§

272

The company brought in a continuous miner and set up an
entirely new recovery room. This was necessary because they
could not advance the longwall into the predriven recovery room.
(Tr. 204).
The original order was modified to allow the company to
reenter that portion of the No. 7 entry that was the subject of
the imminent danger order.
(Tr. 205). No more than eleven
miners could work in the area.
(Tr. 207).
While Mr. Caller did not feel there was a condition of
imminent danger, he thought Inspector Shively immediately took
care of his concerns by showing the men the method he wanted them
to use in installing temporary supports. The work as required
under the modifications was completed no later than 24 hours
after the issuance of the order.
(Tro 208, 211)" At the time of
the hearing, WFC still remains under order No. 3241309.
(Tr. 208).
In his prior experience with § 107(a) orders Mr. Callor had
seen modifications as specific as in modification number 5v but
he did not believe it was common practice to use § 107(a) in this
fashion.
(Tro 216).
The completion cf the roomv as far as being cribbed was
completed in less than 24 hours.
In Mr. Caller's opinion
abated the§ 107(a) conditiono
Tro 218).
The company had decided to mine through the pillar but the
shear stuck before it reached the recovery room.
(Tr. 220).
After the decision was made to go with the predriven recovery
room the No. 7 entry was the company's choice as the recovery
room.
(Tr. 221).
Some f ibercrete cribs had taken an enormous amount of
weight. Mr. Callar also saw coal sloughage from the roof or
ribs. The shields were weeping but they did not fail but kept
the roof totally intact throughout the entire recovery of the
longwall.
(Tr. 222).
The company began wooden cribbing after the failure of the
fiber cribs. Mr. Callar did not see total failure of any of the
wooden cribs.
(Tr. 223).
While Mr. Caller was there, the MSHA team and others went
through the entire section after some cribbing had been done.
(Tr. 224). The cribbing was installed as an additional
precaution.
(Tr. 225).
In Mr. Caller's opinion the pressure from the gob overrode
the shield system and the No. 7 entry.
(Tr. 225). After
overriding the system it sat down on the pillar between entries

273

number 5 and 6. As a result the company was able to remove the
shields and longwall. However, the roof came down low enough
that the shear could not be removed.
(Tr. 226).
Mr. Caller was upset because MSHA interfered with management
decisions.
(Tr. 227, 228).
The use of an I-beam as required in MSHA's modification
order causes more hazards (due to clearances) than conventional
roof control methods.
(Tr. 228, 229). Mr. Callar did not feel
the company would lose the longwall before MSHA came in.
(Tr.
231) •

.

Mr. John DeMichiei, MSHA's District Manager, approved the
recovery plan.
(Tr. 237v Ex. P-2).
On Page 4 of Exhibit P-3 Mr. Callar marked in red the area
of the original citation.
(Tr. 24lv 241 0 Ex. P-3). The company
put in an additional 50 wooden cribs (Tr. 242). The cribs were
about five feet apart for 550 feet.
(Tr. 243). Prior to using
the area as a recovery room the company installed 8 foot roof
bolts between 6 foot bolts. Also chain link fence was installed
as shown in Exhibit S-7a.
(Tr. 244). The company also installed
wood cribs between all of the fiber cribs.
(Tr. 245).
The No. 7 entry was not used to recover the longwall but the
area adjacent to the No. 7 .entry was mined out for that purpose.
(Tr . 2 4 5 , 2 4 6 ) •
The entry is still standing but all the shields have been
removed so the longwall face is now a part of the gob except at
the very bottom of the headgate entry.
(Tr. 248).
MSHA modified the order to allow the company to apply mobay
chemical. This was previously approved in the roof control plan.
(Tr. 251) .
CHARLES w. McGLOTHLIN, Vice-President and general manager of
WFC, reports directly to Chuck Batt.:y, CEO of WFC. 6
Mr. McGlothlin, a person experienced in mining and
management, has been employed by Kaiser Coal, Atlantic Richfield,
Beth.lehem Coal, and others. He holds a degree in mining
engineering from West Virginia University.

6

At the hearing a portion of Mr. McGlothlin's testimony was
inadvertently taped over.
However, the parties were able to
reconstruct the lost testimony without requesting a reopening the
hearing.
(See Judge's orders of August 24, 1990 and January 18,
1991.)

274

The witness explained in detail the type of rock formation
in the mine, as well as the company's mining plan in relation to
the predriven recovery room.
Mr. McGlothlin was aware of the section 107(a) order issued
in this case, as well as the condition in the mine. Mr.
McGlothlin further examined the panel of photographs previously
received in evidence, as well as Exhibits P-4 and P-12.
In the witness's opinion, no condition of imminent danger
existed. The cribbing, as demonstrated by the photographs, was
contorted, bent, and twisted. Moreover, no wooden pillars had
failed. The bent, twisted'· and contorted wooden pillars were
basically performing their function of supporting the roofo One
can anticipate pressure on the wooden pillars will produce some
contortion in the pillars.
Mr. McGlothlin agreed that some fibercrete pillars had
failed.
Further, the company had anticipated there would be
pressure on the wooden pillars: however,
underestimated the
extent of the pressure that actually occurredo
The witness described the engineering studies that had been
done by the United States Bureau of Mines on the application of
predriven recovery rooms for longwall equipment recovery at. the
Golden Eagle mine. A copy of the Bureau of Mines study on the
use of predriven recovery room for longwall recovery was received
into evidence. It was the opinion of the witness, based on his
experience as a mining engineer and the technical information he
had reviewed, that use of a predriven recovery room was a safe
and acceptable method for longwall recovery.
Mr. McGlothlin explained the longwall mining equipment had
to come out the headgate entry. Also maintenance and safety
precautions were implemented in the headgate entry (Tr. 255).
The company felt that the best alternative, with convergence
at the longwall face, was to remove part o~.the barrier pillar,
secure that area and reconstruct a suitable recovery room (Tr.
257).
Exhibit P-7 shows, in the background, a predriven and
designated recovery area in No. 7 entry. The photograph was
taken around May 15th (Tr. 258, 259).
cribs and meshing material supported the roof in the
recovery room (Tr. 260, Exs. P-8, P-9, P-10).
Exhibit P-12 shows the first shield pulled out. Only two
shields flushed in to the point were they did not put any crib
blocks under it (Tr. 264).

275

The Secretary's photographs Exs. S-4A, S-4B, S-4C and S-4E
are not in the area effected by the section 107(a) order (Tr.
265) •
Mr. McGlothlin believed Inspector Shively had a concern for
the way the cribs were being built. That concern was satisfied
in a matter of hours and from that time forward no imminent
danger existed (Tr. 266).
He did not see any reason for the continuance of the
imminent danger order.
(Tr. 267).
Mr. McGlothlin agreed the section 107(a) order impacts the
No. 7 entry and the longwall support shield system (Tro 268) o
The No. 7 entry was originally the planned recovery room
(Tr. 270)0 The company had mined into the barrier pillaro The
barrier that remained varied from zero to a maximum of eight
feet, or an average of four feet (Tro 27l)o To successful
complete the longwall recovery the company planned to remove all
of the barrier pillar and end up in the recovery room, i.e.f the
No. 7 entry. The plan was not completely successful nor was it a
complete failure (Tr. 272). This method has been used in four
different mines 0 in West Virginia and Pennsylvania (Tro 273)"
On May 5th there were cracks and cutters
the roof"
Because of the cracks the company set additional supplemental
supports on May 5th (Tr. 274, 275).
The cutters in the roof indicated the abatement pressure had
completely traversed the No. 7 entry and had come to rest outby
the pillar between No. 6 and No. 7 entry. The pillars are the
primary roof support in a mine.
On May 4th and 5th, Mr. McGlothlin noticed fiber cribbing
failure but no wooden cribs had failed prematurely.
The wooden cribs in photographs S-7B,_C and O had not
failed.
They could not have been knocked out with anything short
of a 100 ton hydraulic jack (Tr. 276, 278).
On May 3rd the roof was converging. After May 6th there was
isolated roof movement (Tr. 277). In two instances when removing
the shields the roof "crushed in". This was not a roof failure
(Tr. 279).
Mr. McGlothlin agrees that on May 5th the mechanically
anchored roof bolt had lost complete effectiveness. However, the
resin bolts had not lost full integrity (Tr. 280).

276

The crib in Exhibit P-4 was installed between May 3rd and
May 6th (Tr. 280, 281). Exhibit P5 indicates a convergance of
four and a half feet in the entry.
It was Mr. McGlothlin's decision to mine this area using the
new longwall method as opposed to the barrier pillar method (Tr.
282).
Page 4 of Exhibits P-1 states it is not possible to give the
exact type and amount of supports required to insure recovery
room stability. Mr. McGlothlin underestimated the amount of
support needed to effectively transfer the roof pressure across
the recovery entry (Tr. 284).
The longwall was recovered in five and one half weeks? this
is average time in the United States (Tr. 287u 288).
The fiber cribbing appearing in Exhibit P-7 was present
the area before the section 107(a) order was issuedo The wooden
cribs to the right in Exhibit P-7 were put in place after the
order was issued (Tr. 292).
The wooden cribsu in Exhibit P-9, were installed after the
section l07(a) was issued but they were not part of the order
(Tr. 294).
The recovery room shown in Exhibit P-8 did not exist when
the section 107(a) order was issued (Tr. 295).
FURTHER FINDINGS OF FACT

47. BILLY OWENS, on MSHA mining engineer, is a person
experienced in mining (Tr. 296-298).
Mr. Owens is Chief of .the Ground Support Division.
visited the Golden Eagle Mine on May 8th {Tr. 298).

He

48. The witness described the area subject to the order
and, he marked the area on Exhibit P-3 (Tr. 300, 301).
49. In the No. 7 entry fibercrete cribs had totally failed.
They had blocking on top that was completely squeezed out.
Wooden cribbing down the right side of the entry was in a state
of failure. Many of the crib blocks had rolled. Timbers were
barren. A cutter ran the entire right side of the entry. The
main roof had suffered a shearing failure and was torn along the
pillar line (Tr. 303).
50. The failed fibercrete cribs are shown in Exhibits S-71,
S-7H, S-7G. The failed timber is shown in Exhibit S-7J and the
failed wooden cribbing is shown in Exhibits S-7B and S-7C (Tr.
305) •

277

51. The wooden cribs in S-7B and S-7C are designed so the
load will be parallel to the vertical axis of the cribbing. More
loading, as on S-7C, can blow the crib out at any time (Tr. 306).
roof.

52. on May 8th there were no large tension cracks in the
The roof had roof bolts and wire mesh in it (Tr. 306).

53. There was evidence of severe roof movement. The mining
height of the entry was 6-1/2 to 7-1/2 feet; or a resulting 3
feet of convergence (Tr. 307). This is enough movement to
destroy supports, cribs, posts and timbers (Tr. 309).
54. There was also horizontal and vertical movement
roof which was in a state of failure. The roof was not
stabilized (Tr. 308, 309).

the

Management told MSHA that the shields, from No. 70 to
No. 90, were down about 42 inches (Tr. 309). Over two or three
days this is a large amount of convergence.
55. The majority of the roof bolts appeared in good shape;
however, along the cutter area the last row of bolts in the entry
provided no support (Tr. 310).
56. Exhibit s-11, a photograph, depicts an area
ong the
edge of the coal
lar between entry No. 7 and No. 6. It shows
the cutter raveling out of the roof (Tr. 311). The tearing of
the roof and the formation of the roof cutter exposed the roof
bolt (Tr. 314).
57. cutters were beginning to migrate in the crosscuts from
entry No. 7 to entry No. 6. In entry No. 6 there were no cutters
or roof problems but the pillars were beginning to show weight
and sloughage was starting (Tr. 316).
58. The company told MSHA that shields No. 70 to No. 90
were all the way down. This indicated a crushing out of the
entire pillar (Tr. 318).
59. When a cutter exists along the sides of an entry, such
as in the Golden Eagle Mine, it essentially wipes out the support
from one side of the entry to the other side. The entire roof
support system can fail (Tr. 319, 320).
60. The area between the tips of the longwall shields and
the new cribs in No. 7 entry were in a state of failure (Tr.
322). Given what he knew of the conditions on May 5th, Mr. Owens
did not consider it safe to attempt the longwall recovery.
However, additional supports and Mobay Chemical had improved the
situation (Tr. 322).

278

61.
If a portion of the roof fell it would be 10 to 12 feet
thick. The majority of roof falls are 18 inches thick.
(Tr.
325).
62.
Photograph S-JF shows Mr. Pulse across the longwall
face with the shields sitting down on the spill plate. The
tensor mesh was trapped so tight that you could not move the mesh
between the shield and the spill plate (Tr. 327).

63. The roof bolts are exposed as shown in Exhibit S-4A
(Tr. 329). The witness discussed Exhibits s-SA, S-5B, S-6 ands7 (Tr. 2 2 9 , 2 3 o) •
64. Given the conditions shown in Exhibit S-7 you would
expect a roof fall but you would not know when (Tr. 330).
65.
There were two meetings with management. The company
brought up nine or ten points. MSHA's District Manager approved
the points to be included in the modification of the 107(a) order
(Tr. 333) .

66. Modification No. 5 required, among other things, a
steel I-beam from above the shields and over the cribbing (Tr.
334) .
67. The ten items in modification No. 5 were discussed
management on May 8th. Recommendations were made by MSHA since
this was the operator's plan for recovery (Tr. 335, 336).
65. All of the items were proposed by WFC.
recommendations for four of the items (Tr. 336).
pressure and the matter was expedited (Tr. 337).

MSHA made
There was no

68. Unexpected problems mandated that the situation be
carefully watched (Tr. 339).
69. The method of longwall recovery as shown in Exhibit P-1
is experimental and needs to be treated as such (Tr. 340). It
needs to be monitored (Tr. 341).
DISCUSSION

The Mine Act defines an imminent danger as "the existence of
any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated." 30 u.s.c.
§ 802(j).
This definition is unchanged from the definition
contained in the Federal Coal Mine Health and Safety Act of 1969,
30 u.s.c. § 801 et seq. (1976) (amended 1977) (the "1969 Coal
Act"). The Senate report on the Mine Act explains that the
Secretary's authority to issue imminent danger orders "should be
construed expansively by inspectors and the Commission." s. Rep.

279

No. 181, 95th Cong., 1st Sess. 38 (1977), 626. Legislative
History of the Federal Mine Safety and Health Act of 1977, at 626
(1978) (Legis. Hist.).
In discussing the concept of imminent danger the Commission
recently stated:
In analyzing [the] definition [of imminent
danger], the U.S. Courts of Appeals have
eschewed a narrow construction and have
refused to limit the concept of imminent
danger to hazards that pose an immediate
danger. See, e.g., Freeman Coal Mining Co.
v. Interior Bd. of Mine Op. APP·v 504 F.2d
741 (7th Cir. 1974). Also 1 the Fourth
Circuit has rejected the notion that a danger
is imminent only if there is a reasonable
likelihood that it will result in an injury
before it can be abated. Eastern Associated
Coal Corp. v. Interior Bd. of Mine Op. App. 7
491 F.2d 277 7 278 (4th Cir. 1974). The court
adopted the position of the Secretary that
'an imminent danger exists when the condition
or practice observed could reasonably be
expected to cause death or serious physical
harm to a miner if normal mining operations
were permitted to proceed in the area before
the dangerous condition is eliminated. Q 491
F.2d at 278. (Emphasis in original.) The
Seventh Circuit adopted this reasoning in Old
Ben Coal Corp. v. Interior Bd. of Mine Op.
~, 523 F.2d 25, 33 (7th Cir. 1975).
Rochester & Pittsburgh Coal Co.Q 11 FMSHRC 2159, 2163 (1989).
Cyprus Empire Corporation, 12 FMSHRC 911v 918 (May 1990).
The Seventh Circuit has further recognized the importance of
the inspector's judgment in issuing an imminent danger order:
Clearly, the inspector is- in a precarious
position. He is entrusted with the safety or
miners' lives, and he must ensure that the
statute is enforced for the protection of
these lives. His total concern is the safety
of life and limb.· . • •
We must support the
findings and the decisions of the inspector
unless there is evidence that he has abused
his discretion or authority.
(Emphasis
added)
Old Ben, supra, 523 F.2d at 31; Rochester & Pittsburgh, 11 FMSHRC
at 2164.

280

The hazards of roof falls are well known. See, ~' UMWA
v. Dole, 870 F.2d 662, 664 (D.C. Cir. 1989) (citing the preamble
to the promulgation of MSHA's current roof support standards, 53
Fed. Reg. 2354 (January 27, 1988)).
Here, Inspector Shively observed miners installing wooden
cribs in entry No. 7. The unstable condition of the roof
(described in detail in Facts 3 through 7) caused him to believe
that a roof fall would cause a fatality if the miners did not
install the cribs from a safe location. In short, he directed
them to "crib their way" into the entry.
WFC's witnesses Callor and McGlothlin differed from
Inspector Shively's views that a condition of imminent danger
existed in the No. 7 entry. Howeverf they both conceded the
inspector had a "concern" for the way the cribs were being built
(McGlothlin at 266). Caller believes Inspector Shively sincerely
felt a condition of imminent danger existed (Caller at 203)0
In
any event, WFC's witnesses failed to testify as to any credible
facts to rebut Inspector Shively~s testimony.
For the above reasons, I conclude that imminent danger order
Number 3241309 issued May 5, 1990, should be affirmed and the
contest relating thereto should be dismissed.
WFC contends the mere good faith belief of the inspector
not enough to sustain the section 107(a) order for an extended
period of time. There must in fact be an imminent danger and
such determination must be based on an objective standard and a
consideration of all of the facts (Brief, page 1).
WFC's arguments require a review of the evidence as to the
scope of the imminent danger when the modifications were issued.
The situation in the Golden Eagle mine came about when the
company tried an experimental longwall recovery procedure.
Simply put, WFC attempted to mine through the 200 foot barrier
pillar and use No. 7 entry a.s a predriven r~!=overy room. The
effort was less than fully successful and the shears stuck
leaving only a minimal barrier pillar, some zero to eight feet.
Mining through the pillar caused massive damage and instability
to the roof. The credible evidence established the conditions as
found in the facts.
(Shively, Facts 3-8; 18-22.) Inspector
Shively described the area affected by the order to be No. 6 to
No. 13 entry and No. 6 to No. 13 crosscuts (Fact 9). Compare
with overview of Exhibit P-3, pg. 4).
Two days later witness Lee Smith, a roof control specialist,
described the unstable roof conditions (Facts 24-39). If
anything, the roof conditions had deteriorated in the two days
since Inspector Shively issued his order. Billy Owens, an MSHA
engineer, also fully detailed the roof conditions (Facts 45-61).

281

I am not unmindful of the testimony of Mr. McGlothlin which
runs contrary to MSHA's evidence. However, I do not find his
testimony as to the condition of the roof and the cribs to be
credible. The photographs clearly rebutt his views.
For
example, see Exhibits S-5A, S-5B, S-6B, S-7A, S-7B, S-7C, S-7D,
S-7E, S-7J, S-7I, S-7H, S-7G, S-7L, S-7K. Further, see Exhibit
s-ac showing a severely twisted I-beam. I-beams simply are not
made to conform to such a configuration.
Mr. McGlothlin also attempts to persuade the Judge that the
Secretaryis exhibits S-4A, S-4B, S-4C and S-4E were not in the
area affected by the order.
(Tr. 265.) However, I reject that
view. The Secretary 1 s agents were not shown to have been
elsewhere in the mine. Further, the photographs were an
evidentiary focus of the Secretaryvs case.
Mr. McGlothlin 1 s testimony further conflicts with the
company 0 s letter to MSHA issued the day the order was issued.
The letter states 1 in partv 01 [t]he abdutment [sic] pressure has
caused the shields to yield to the point where the shearer cannot
continue cutting. The pressure has also caused the supplemental
support (fibercrete and wooden cribs) in the recovery room to
il. 00
(Exhibit P-3) .
I credit MSHAus evidence that the condition of imminent
danger due to roof fall continued to exist in the 700 foot area
encompassing Entry No. 7, the remains of the barrier pillar and
the shields of the longwall. 7
In sum, a preponderance of the substantial, reliable and
probative evidence establishes the facts as set forth in
paragraphs 1 through 69 of .this decision.
WFC contends that MSHA cannot impose mandatory obligations
when it issues a section 107(a) order.
Case law precedent supports WFC's position.
In Eastern
Associated Coal Corporation, 4 IBMA 1 (1975) the Interior Board
of Mine Operations Appeals considered such an issue.
4 IBMA at
21.

However, MSHA falls within the exception as explained by the
Board:
Although we hold that section 104(a) allows
only an order to withdraw persons and does
not authorize the Secretary to issue any
other kind of direct order, the Board
7

The area affected by the order was identified on Exhibit P3, Page 4.

282

emphasizes that, in drafting a section 104{a)
order, an inspector has the discretion and
ought, after consultation with responsible
mine officials, to include the terms upon
which the withdrawal order will be
terminated, that is to say, the actions which
must be taken to remove at least the
'imminence' of the subject hazard. While
these terms would in no sense be mandatory or
subject to enforqement in a federal district
court, they would notify an operator as to
what must be done if it wishes to resume
operations rather than close down permanently
the area described in the ordero 4 IBMA at
250
In the instant case Mro Callar was

upsetgu because he
believed MSHA interfered with management decisions Tro 227228). Howeverv it is uncontroverted that WFC submitted the
for recovery of the longwall. All items were proposed by the
Company. There was no pressure and the matter was expedited (Tro
01

335-337).

The above facts indicate that WFC was complying
conditions for withdrawal of the § 107(a} order.
WFC further asserts that MSHA 1 s actions were inconsistent
with the claim of imminent danger. Specifically, it is claimed
MSHA permitted travel over the area for five weeks and also let
the work force retrieve longwall equipment over a period of
several weeks.
Under section 107(a) MSHA may permit individuals in an area
of imminent danger. These individuals are named in section
104{c).
It is true the longwall equipment was removed. However,
considerable efforts had been made at abating the imminence of
the danger. Accordingly, I am unable to conclude that MSHA
permitted miners to work under the unstable roof.
WFC also states that the mere existence of signs of
dangerous conditions do not establish existence of an imminent
danger.
I disagree. The signs of dangerous conditions can and often
do establish a basis for expert witnesses to reach their
conclusions of the underlying hazard.
WFC finally claims that MSHA abused its discretion in
leaving the order in effect when an imminent danger no longer

283

existed. The facts concerning the unstable roof have been
previously explored.
For the foregoing reasons, WFC has not sustained it's burden
of proof in this contest case.
Accordingly, I enter the following:
ORDER
1. Order No. 3241309 and all modifications thereof are
AFFIRMED.
2a

The contest of Order Noa 3241309 is DISMISSEDo

Law Judge
Distribution:
Lawrence J. Corteu Esqou Wyoming Fuel Companyu PaOa Box 15265"
Lakewoodu co 80215 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Office Building, 1961 Stout
Street, Denver, co 80294 (Certified Mail)
slk

284

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

22041

FEB 21 1991
JOHN Ao GILBERT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 86-49-D

Vo

MSHA Case No. BARB CD 85-61
SANDY FORK MINING COMPANY,
Respondent
ORDER
Before~

INC.,~

LIFTING STAY AND DISMISSING PROCEEDINGS

Judge Melick

Complainant John A. Gilbert requests approval to withdraw
his Complaint the captioned case. Under the cir umstances
herein, the request is granted. 29,C.F.R.
§ 270 .11.
The stay
1
Order previously issued is acc[rdin ly now lifte and thinase
is therefore dismissed.
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Law Judge

Distribution:
v

"'

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., Mine Safety Project, 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, N.W., Suite 400, Washington, DC 20005 (Certified Mail)
nb

285

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

22041

FEB 2 5 1991
CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-140-M
A.C. No. 38-00007-05560

v.
Giant Mine
GIANT CEMENT COMPANY,
Respondent
DECISION
Appearances~

Before:

Leslie John Rodriguez, Esq., U.S. Department of
Labor, Office of the Solicitorr Atlanta Georgia,
for the Petitioner~
Burton L. Ardis, Jr., Safety Director, Giant
Cement Company, Harleyville, South Carolina, for
the Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seg., the "Act", charging the Giant Cement Company (Giant)
with two violations of mandatory standards and proposing civil
penalties of $40 for those violations. The general issue before
me is whether Giant violated the cited regulatory standards and,
if so, the appropriate civil penalty to be assessed in accordance
with section llO(i) of the Act.
Citation No. 3612429 alleges a violation of the mandatory
standard at 30 C.F.R. § 56.14100(b) and charges that "[t]he
windshield wipers on the 125B Cat. F/E Loader, Company No. Qll
were not in working condition". The cited standard provides that
"[d]efects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons."
In its Answer filed in these proceedings Giant does not
dispute the existence of the cited defect nor that it affected
safety but maintains that such a defect would have ordinarily
been discovered during pretest procedures and that a work order
would subsequently have been written and the defect corrected
before the cited equipment would have been placed in service.
The evidence shows in this case that the cited loader was not

286

operating (though it was capable of being used) and had been
parked and not operated for eight days before the citation at bar
was issued on June 4, 1990.
The cited manadatory standard requires that safety defects
"shall be corrected in a timely manner to prevent the creation of
a hazard to persons" (emphasis added). The term "timely" has
been defined as "done or occurring at a suitable time".
Webster's Third New International Dictionary of the English
Language, Unabridged, 1986, Merriam-Webster, Inc. In order to
determine whether the operator herein corrected the cited defects
in a "timely" manner it should be determined when the defects
were discovered or reasonably should have been discovered. On
the credible record before me, it may reasonably be concluded
that the cited loader was last operated eight days before the
citation was issued. There is no evidence that when the loader
was last operated the cited defect was observed or even existed.
Since the required inspection of the equipment is done before the
beginning of the shift the wipers could very well have become
defective sometime during that last work shift. Moreover since
the next preshif t inspection would not be expected to be made
until just before the loader would again be operatedu it is also
unlikely that the defect would have been or necessarily should
have beenu discovered before such timeo
Considering that corrections only need to be made under the
cited standard in a "timely" manner I cannot find that a
violation existed herein. Since the preshift examination had not
yet been made nor was it required before the cited loader would
next be operated it would be premature to find a violation under
this standard. Citation No. 3612429 must accordingly be vacated.
In reaching this conclusion I have not disregarded the
Secretary's reference to the case of Secretary v. Mountain
Parkway Stone, Inc., 12 FMSHRC 960 (1990) involving the
interpretation of a different standard, 30 C.F.R. § 57.9002
(1988), with language requiring that "[e]quipment defects
affecting safety shall be corrected before th.e·equipment is
used." It is not disputed in this case that the cited equipment
was not tagged out and was capable of being used within the
meaning of the Mountain Parkway decision. The result in this
case depends however on the unique language of the standard at 30
C.F.R. S 56.14100(b).
Citation No. 3612430, as amended, charges a violation of the
mandatory standard at 30 C.F.R. § 56.14132(a) and charges that
"[t]he service horn was not in working condition on the 125B Cat.
F/E Loader, Company No. Qll". The cited standard provides that
"[m]anually-operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety feature
shall be maintained in functional condition. 11

287

This standard, unlike the standard at 30 C.F.R. §
56.14100(b) previously considered, does not require consideration
of timeliness. Indeed it is clear from the plain language of
this standard that the operator is made a virtual guarantor that
"manually operated horns ••• shall be maintained in functional
condition". In this case again it is apparent that the operator
does not dispute that the cited horn was not functioning on the
cited loader as charged but maintains that during its pretest
procedures it would have discovered that defect and a work order
would have been written and the defect corrected before the
equipment would be operated.
The cited loader was admittedly not "tagged out 1• of service
and was therefore clearly available for usage at the mine site.
Under the circumstances the violation is proven as chargedo
is clearly immaterial in proving a violation of the cited
standard that the operator may have in existence a 11 pre-test•u
procedure that, if properly followed, might very well lead to
discovery of such defects before the equipment is operatedo The
existence of such a procedurev if proven effective in the pastr
may very well reduce the negligence and gravity findings relating
to a violation charged under the cited standard but it cannot
negate a violation of the standard.
The evidence
this case of a significant number of
equipment safety violations at this mine indeed suggests that the
"pre-test" procedures have not been effectively implementedo
Accordingly I can give but little weight to the claims that such
procedures would likely result in detecting and correcting such a
violation as charged herein. More significantly, however,
Giant's mobile equipment repair foreman, Danny Westbury,
testified that the discovery of a defect such as the inoperable
horn cited herein nevertheless would not prevent the usage of the
equipment if repair parts were not available and the equipment
was needed. For this additional reason then it is clear that the
mere existence of the alleged "pre-test" procedures is
irrelevant and not a viable defense to the charges herein nor in
mitigation of the penalty. Under the circumstances and
considering all of the criteria unger Section llD(i) of the Act I
find that a civil penalty of $100 is appropriate.

288

ORDER
Citation No. 3612429 ls vacated. Citation No. 3612430 is
affirmed and the Giant Cement Company is dire~ted to pay a civil
penalty of $100 for the violation therein within 30 days of the
date of this decision.
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Gb.ry Melick 1
Administrative Law Judge
'

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Distribution:
Leslie John Rodriguez, Esq., Office of the Solicitorp U~S.
Department of Labor, Room 339, 1371 Peachtree Street, N.E.,
Atlanta, GA 30367
(Certified Mail)
Mr. Burton L. Ardisp Jr., Safety Directoru Giant Cement Companyu
P. o. 218, Harleyville, SC 29448
(Certified Mail)
nb

289

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

February 25, 1991
DAVID H. BREWER,

DISCRIMINATION PROCEEDING

Complainant
Docket No. VA 90-58-D
NORT CD 90-11

v.
WEST M)RELAND COAL COMPANY,

Wentz #: 1 Mine

Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On September 18, 1990, you filed with this Commission a
complaint of discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 19770 On November 14u 1990f
a show cause order was issued directing you to provide information
regarding your complaint or show good reason for your failure
to do so. The show cause was mailed to you certified mailu
return receipt requested and the file contains the receipt
card indicating you received the show cause order. You
have however, not responded and complied with the show cause
order.
Accordingly, this case is DISMISSED.

Paul J.verl in~·
Chie-f Administrative Law Judge
Distribution:
David H. Brewer, Roil'te 1, Box 200-A, Dryden, VA
Mail)

24243 (Certified

Susan E. Moore, Esq., Westmoreland Coal Company, Legal DeptJ,
P.O. Drawer A & B, Big Stone Gap, VA 24219 (Certified M:!.il)
SS

290

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

FEB 26 1991
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRAT!ON (MSHA),
on behalf of
JOHN A GILBERT,
Complainant

Docket No. KENT 86-76-D
MSHA Case No. BARB CD 85-61

v.

No. 12 Mine

SANDY FORK MINING COMPANY,
Respondent

INC.,~

DECISION AND ORDER
Before:

Judge Melick

This case is before me on remand by the Commission on
June 28, 1990, following the decision of the Federal Court of
Appeals, District of Columbia Circuit, in Gilbert v. FMSHRC, 866
F.2d 1433 (1989).
By decision dated November 8, 1990, I
subsequently held that, based upon the circuit Court's specific
findings, I was constrained to find that Mr. Gilbert was
discharged in violation of Section 105(c) (1) of the Federal Mine
Safety and Health Act of 1977, the "Act." Mr. Gilbert
subsequently agreed to a settlement of costs and damages in his
individual complaint under Section 105(c) (3) of the Act and that
case was thereafter dismissed.
(See Docket No. KENT 86-49-D).
The Secretary does not oppose that dispositioFl of Mr. Gilbert's
section 105 (c) claim but seeks in thi·s case, in addition, a civil
penalty of $2,000 from the Respondent for Gilbert's unlawful
discharge.
Evaluation of the relevant criteria under section llO(i) of
the Act is necessary to determine an appropriate civil penalty. I
do not find negligence in this case because Respondent had no
notice that its conduct would constitute a violation of section
105{c), and it took no direct adverse action against the
Complainant.
I am satisfied from the record herein that
Respondent had no intent to act against Gilbert in violation of
section 105(c) ·and indeed both myself as the trial judge and a
unanimous Federal Mine Safety and Health Review Commission
initially concluded that Respondent did not violate section
105(c). It was not until the United States Court of Appeals for
the District of Columbia circuit effectively expanded existing
law that Respondent's actions were deemed subject to a finding of
discrimination.
Prior Commission decisions had established that

291

there was no legal obligation for· a mine operator to verbally
articulate, or otherwise demonstrate in advance, what specific
action was being taken to remedy hazardous conditions unless the
operator intended to insist that a miner return to work under
those conditions. See Secretary of Labor on behalf of Pratt v.
River Hurricane Coal Co., Inc., 5 FMSHRC 1529, 1534 (1983);
Secretary of Labor on behalf of Hogan & Ventura & UMWA v. Emerald
Mines Corp., 8 FMSHRC 1066, 1074 (1986). Only now can it be said
that there may exist a newly delineated legal obligation for mine
operators to explain to employees in detail anticipated remedial
actions no matter when asked.
In addition, the evidence shows that Respondent never forced
Gilbert to work under conditions which he believed to be
hazardous. Essentially, according to the Court of Appeals, this
case involves a failure of communication on the part of the
company, and more particularly a failure to give adequate future
assurances. Respondent also ceased operations in February of
1988, no longer employs any miners, and produces no coalo There
is no evidence of any prior violations of section 105(c) at this
mine.
Finally, it is not disputed that once the decision finding a
violation of Section 105(c) was entered, the Respondent worked in
good faith with the Complainant to negotiate a fair resolution of
remaining issues, including compensation for costs and damages"
Indeed these negotiations recently resulted in a settlement
agreeable to Mr. Gilbert.
ORDER
The Stay Order issued February 7, 1991 is hereby lifted.
Under the unique circumstances of this case I hereby order Sandy
Fork Mining Company, Inc. to pay a token civil pena~ty of $1.00
within 30 days of the date of this decision. This 1s the final

1

)

disposition of these proceedings b e p thl ,:u~:e·(n

Gar~ Mel

292

K

/

A

~._/ \

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., Mine Safety Prqject, 630 Maxwelton court,
Lexington, KY 40508 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215 (Certified Mail)
Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, N.W., Suite 400, Washington, DC 20005 (Certified Mail)
nb

293

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

FEB 26 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-194-M
A.C. No. 05-03985-05511
El-Jay Mine

Vo

SKELTON INCORPORATED,
Respondent
DECISION
Appearances:

Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner~
Ruth Gray 9 Secretaryu Skeltonu Incou Norwood"
Colorado.I'
for Respondent.

Before:

Judge Lasher

In this matter the Secretary of Labor (Petitioner) seeks
assessment of penalties for 10 alleged violations (described in
10 Citations) pursuant to Section llOCa> of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 820(a) (1977).
At the outset of hearing in Montrose, Colorado, on November 14, 1990, Respondent agreed to pay in full MSHA 1 s initially
proposed penalties for Citation No. 3452866 ($74) and Citation
No. 3450113 ($20) and, the Petitioner concu~ring, this disposition was APPROVED from the bench.·
With regard to the remaining eight citations (3 citing electrical violations, 3 citing alleged "inadequate guard" situations, l "berm" matter, and 1 "failure to report" matter), the
parties presented testimonial and documentary evidence at hearing
and waived filing post-hearing briefs. Respondent concedes the
occurrence of the 3 electrical violations but challenges the
level of MSHA's penalties therefor. As to the remaining 5
citations, both the "occurrence" and "amount of penalty" issues
are viable and were litigated.
GENERAL BACKGROUND
Respondent established no economic defense in mitigation of
penalty.

294

a.

Stipulated Penalty Assessment Factors.

Based on the written stipulation (Court Exhibit 1) submitted by the parties, it is found that Respondent is (1) a small
sand and gravel operator with (2) a history of 17 violations during the two-year period (12/6/87 to 12/6/89) preceding the issuance of the first Citation involved in this proceeding, and (3)
that Respondent, after notification of the alleged violations,
proceeded in good faith to promptly abate such conditions.
b.

Respondent's Operation.

Respondent operates a portable rock-crushing unit (which
can be moved to different locations by tractor-trailer), with a
primary jaw crusher, conveyance, and load, haul, and dump equipment.
(Tr. 55-56, 145-149).
PRELIMINARY MATTERS
Respondent 1 as I understand its position 9 contends that it
should not be assessed penalties since it was not afforded the
right to request a CAV (Compliance Assistance Visit) and did not
have prior electrical inspections prior to the subject inspection.
(Tro 15u 136 9 165 9 166 9 167)0
The CAV process is not provided for in the Mine Act and is
not a mine operator 1 s absolute right. In this connection, it is
noted that the record reflects that MSHA was not notified by
Respondent as to the site at which it was operating prior to the
time the inspectors discovered its operation, inspected it, and
issued the subject citations. In any event, the mine in question
is clearly subject to the Mine Act and inspections thereof are
mandated by such Act, Section 103Ca), 30 u.s.c. § 815. Furtheru
Sections 104(a) and llO(a) of the Mine Act require that a citation be issued and a penalty assessed when a violation occurs.
See Old Ben Coal Co., 7 FMSHRC 205208 (1985). Accordingly, the
various contentions of Respondent based on its failure to receive
a prior CAV are found to lack merit and are_REJECTED.
It is noted that Respondent in this matter was not represented by legal counsel. Thus it is appropriate that another
aspect of the CAV issue be considered even though not specifically raised. That is, does the fact that a CAV was not conducted
prior to the time the subject Citations were issued estop the
government enforcement agency from citing violations? Quite
simply, the answer to this question is that the Mine Safety and
Health Review Commission has rejected the doctrine of equitable
estoppel in Secretary of Labor v. King Knob Coal Company, Inc.,
3 FMSHRC 1417 (1981):
.

295

The Supreme Court has held tha equitable estoppel generally does not apply against the federal
government. Federal Crop Insurance Corp. v.
Merrill, 332 U.S. 380, 243 U.S. 389, 408-411
(1917). The Court has not expressly overruled
these opinions, although in recent years lower
federal courts have undermined the Merrill/Utah
Power doctrine by permitting estoppel against
government in some circumstances. See, for example, United States v. Georgia-PacIIIc Co., 421
F.2d 92, 95-103 (9th Cir. 1970). Absent the Supreme Court's expressed approval of that decisional trend, we think that fidelity to precedent requires us to deal conservatively with
this area of the law. This restrained approach
is buttressed by the consideration that approving an estoppel defense would be inconsistent
with the liability without fault structure of
the 1977 Mine Act.
See El Paso Rock Quarriesu
Inc., 3 FMSHRC 35 1 38-39 (1981)0 Such a defense
is really a claim that although a violation occurred, the operator was not to blame for ita
Respondent also expresses concern about the 0 inconsistency•
of the MSHA inspectorso
(See Respondent 0 s
tter dated June l8g
1990; Tr. 34-35 8 154 8 155 8 294)0 Againu insofar as this position
constitutes raising the defense of equitable estoppelu it is
rejected.
However, as the Commission in King Knob, supra, also
noted, such factors as prior non-enforcement or confusion caused
by MSHA enforcement policy, can, in the abstract, be considered
in mitigation of otherwise appropriate penalties. Such has been
done in this decision.
THREE "ELECTRICAL" VIOLATIONS
As above noted, Respondent concedes the occurrence of these
three Section 104(a) violations cited March 6, 1990, in Citations
numbered 3449865, 3449867, and 3449868. The Secretary seeks
penalty assessment of $91 for each.. of the three which involve
infractions of 30 C.F.R. § 56.12008. ~/

l/

30 C.F.R. § 56.12008 provides:
Insulation and fittings for power wires and cables.
Power wires and cables shall be insulated adequately where
they pass into or out of electrical compartments. Cables

296

The record shows that MSHA Inspector Ronald J. Renowden
accompanied Inspector Michael T. Dennehy on a regular inspection
of Respondent's operation near Blanding, Utah, from March 6
through March 8, 1990. Inspector Renowden, an electrical specialist with impressive qualifications, performed the electrical
part of the inspection.
(Tr. 49-58, 59).
Based on the preponderant reliable and substantive evidence,
I make the following findings:
A.

Citation No. 3449865.

Because there was an improper fitting, i.e., no fittingu on
the power cable entering the motor terminal boxv i.e.u a metal
enclosure (Tr. 64), the hazard of a shock, burn, or electrocution
was created. The power cable (moving back and forth and flexing)
could be damaged by the metal edge and energize the metal framework of the conveyor involved, whichwould, in turn, energize the
framework of the crushing unit.
(Tr. 65-69v ?Ou 82u 85)0
Since it was reasonably likely that the hazard contributed
to by the violation could result in an injury of a reasonably
serious or fatal nature (Tr. 77>u the violation is found to be
not only significant and substantial s & S) as charged by
Inspector Renowden (Tr. 71-73u 14u 87)u but also very serious
(Tr. 74, 76, 88)"
Since the problem was visible to one observing the equipment, I find that the mine operator was negligent in allowing
such violative condition to exist.
(Tr. 77, 85, 141, 144, 155,
158, 171, 176).
B.

Citation No. 3449867.

This violation was cited because there was no fitting where
the cable (cord) supplying power to a crossover conveyor entered
the metal junction box (terminal housing) to secure the cable
from strain and protect it from the sharp metal hole edges of the

(continued from page 3)
shall enter metal frames of motors, splice boxes, and electrical compartments only through proper fittings. When
insulated wires, other than cables, pass through metal
frames, the holes shall be substantially bushed with insulated bushings.

297

junction box.
(Tr. 95-97, 98). The cord is referred to as "SO
cord" in the Citation, which in turn means "hard surface oil
resistant."
(Tr. 110).
A ground fault hazard was created because this condition
could damage the cable "to a point that one of the energized
phase conductors inside the cable could energize the metal casing
of the motor ••• and energize the framework of the crusher"
(Tr. 98, 110) similar to the violation described in Citation No.
3449865, supra.
Such hazard could easily come to fruition and
result in injuries such as electrical shock and "arc~flash burns"
as well as electrocution.
(Tr. 99, 100). Because of the amount
of vibration and flexing that occurs in the situation involved,
it was reasonably likely Cl) that the hazard could occur to cause
an injury, particularly since there was no other "strain relief~
support (Tr. 100-101, 102-107) and (2) that such would cause a
reasonably serious injury. This is a serious violation and was
charged to be a "significant and substantial" one as well.
The
violative condition was readily observable and the determination
here that this violation resulted from negligence on the part of
the mine operator is supported in the record.
(Tr. 107, 108,
141, 144, 170, 171, 176). Notably, Respondent's foreman who was
responsible for electrical compliance (Tr. 135u 140, 144) testified as follows~

C.

Q.

Yesterday, the inspector mentioned there was some confusion when they arrived as to who was in charge. Can
you tell us why there was some confusion?

A.

Because of stuff like this, having to do this, come to
a hearing and things. Who would want to take responsibility, if you have to come to this kind of stuff all
the time?

Q.

Well, who is the person--according to your management
structure--who was the person that should take charge
of this?

A.

Me.

(Tr. 144)

Citation No. 3449868.

Here again, as in the prior two electrical violations, this
Citation alleged a similar violation of 30 C.F.R. § 56.12008 and
such was determined by the Inspector to be "Significant and Substantial."
(Tr. 130). And again, there was no fitting for the
cable (Tr. 124). Inspector Renowden credibly testified and explained that the hazard from the instant violation was "worse"
than the previous two violations (Tr. 125), that the cord was

298

subject to vibration, flexing, and rubbing, and that severe electric shock resulting in electrocution of miners could easily
result. (Tr. 125-126, 130, 131, 132). This is found to be a
very serious violation.
The mine operator is again found to have committed this
violation as a result of a significant degree of negligence.
(Tr. 131, 132, 141, 144, 158, 170, 176).
In mitigation, Respondent established that it had had no
prior electrical accidents CTr. 83), or injuries from electrical
problems (Tr. 136).
Perry Rowe, a foreman for Respondent mine operator, testified that he was responsible for the electrical equipmentv but
that he had no electrical training and was not an electriciano
(Tr. 135, 140, 149, 161). Mr. Rowe had 11 no ideaH why there were
no fittings on the equipment involved in the three electrical
violations (Tr. 141) and thought that 11 whoever made the machine""
was responsible for not putting the fittings in place"
(Tr. 141).
CONTESTED CITATIONS
The Respondent challenges the occurrence of the violation
charged in the following five Citations. Based on the preponderant reliable and substantive evidence, the following findings are
made with regard thereto.
A.

Citation No. 3450115.

This 104(a) Citation issued by MSHA Inspector Michael T.
Dennehy on March 6, 1990, alleges an infraction of 30 C.F.R.
§ 56.14107 ~/ as follows:
The guard for the head pulley on the undercone
conveyor was not adequate to protect a person
from contact with the fins on the~head pulley.
The head pulley was approximately 63 inches from
ground level.

~/

30 C.F.R. § 56.14107 provides:

299

Moving machine parts.
(a) Movin3 machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive,
head, tail, and take-up pulleys, fly-wheels, couplings,
shafts, fan blades, and similar moving parts that can
cause injury.
(b) Guards shall not be required where the exposed
moving parts are at least seven feet away from walking
or working surfaces.
The self-cleaning (with fins) head pulley in question had
only a "partial guard" which, while guarding the pinch point, did
not cover moving machine parts, i.e., the metal finso
(Tro 191,
193, 204-205).
The guard was thus inadequate.
(Tr. 194, 199,
201-204). The fins, being 63 inches from the ground, did not
meet the "7-foot" exception contained in the standard.
(Tr. 199)0
The violation charged in the Citation is found to have occurred.
The inadequacy of the guarding around the two-inch fins,
which were susceptible to contact on one side of the pulley,
created the hazard that a miner could be pulled into the pulley
and lose a finger, hand, or armo
(Tr. 195, 200, 201, 202, 207)0
Such could be a permanent disabling injury.
CTr. 207)0 Since
there was no foot traffic in the area (Tr. 217, 226), and because
of the 63-inch height of the fins off the ground, it was not
likely that a person would come into contact with the fins and be
injured by the hazard. The violation is thus found to be only
moderately serious.
(Tr. 199, 203, 207).
The Respondent mine operator is not found to be negligent in
the commission of this violation since Respondent showed that it
received a Citation in 1987 for not having a guard on the pulley
and that such was abated (and the Citation terminated) by the
installation of the guard observed by and cited as inadequate by
Inspector Dennehy in this matter.
(Tr. 197, 198, 207-212, 217,
225-226, 246, 247). It thus appears that MSHA at one time had in
effect approved the guard set-up cited in the subject Citation.
B.

Citation No. 3450118.

1. The condition cited by Inspector Dennehy on March 7,
1990, as a violation of 30 C.F.R. § 56.14107 is as follows:
The pinch point on the chain sprocket that drives
the jaw crusher's feeder was not adequately guarded
to prevent a person from contacting the sprocket or
pinch point. This drive was near the front access
area to the jaw crusher.

300

2. The violation occurred as· cited by the Inspector in the
Citation.
(Tr. 230, 231, 232, 235, 246).
3. The partial guarding that was in place on March 7, 1990,
was inadequate.
(Tr. 230, 233, 234, 235, 240, 241, 257). There
was no guard on the pinch point.
(Tr. 235, 236, 241).
4. The hazard was that a person could come into contact
with the pinch point (Tr. 231), i.e., the moving machine part
(sprocket and chain), and have a finger, hand, or arm severed.
(Tr. 232, 233, 2?4>.
5. The violation was not "significant and
(Tr. 233-234).

substantial.~

6. It was not "reasonably likely" that this hazard would
come to fruition.
(Tr. 234, 236-237, 239, 240). The violation
is found to be serious.
(Tr. 234u 236, 237v 239u 240v 241)0

7. As in the case of the previous citationv Respondent is
not found to be negligent in the commission of this violation
since it established that it had received a prior citation in
1986 from a different inspector for a guard violation and that
such was abated and the citation terminated by the installation
of the guarding cited as inadequate in the subject Citation.
(Tr. 242, 245 6 246-247, 248-253u 255).

c.

Citation No. 3452863.

1. The condition cited by Inspector Dennehy on March 6,
1990, as a violation of 30 C.F.R. § 56.14107 is as follows:
The guard for the under conveyor (jaw) was not
adequate where the access ladder to the crusher
post near the head pulley belt driven shaft was
to protect a person from contact with the pinch
point. This pinch point was next to the access
landing of the jaw crusher's diesel_ engine.
2. The record establishes that the pinch point in question
was not adequately guarded.
(Tr. 264-266, 271, 281).
The violation occurred as cited by the Inspector in the Citation. <Tr.
264-268, 290).

3. The hazard, contact of a person with the pinchpoint,
could result in loss of fingers and limbs, and there was a
"slight chance" such could be fatal.
(Tr. 268-269, 271).

301

4. This was a "significant and substantial" cs & S) violation since the area is traveled and one person is required to be
in the area to gain access to the diesel engine which powers the
conveyor in question. (Tr. 264, 265, 269, 276-277, 295). It was
reasonably likely that the hazard would come to fruition.
(Tr. 273, 276-277, 295, 299-300).
5. Although the violative condition was out in the open and
obvious (Tr. 274), the Respondent is not found to be negligent in
the commission of this violation, since it established that it
had received a prior citation from a different inspector for a
guard violation and that such was abated and the citation terminated by the installation of the guarding cited as inadequate in
the subject Citation. (Tr. 291-192, 297).
D.

Citation No. 3450117.
1.

The condition cited by Inspector Dennehy on March 7

1990f as a violation of 30 C.F.R. § 56.9300 is as followsg

The elevated roadway used to gain access to the
jaw crusher's feed hopper was not provided with
a berm to prevent the Kawasaki front end loader
from dropping off the unprotected sides. The
top of the roadway had a 5- to 6-foot drop-off
Berms or guardrails shall be at least mid-axle
height of the large self-propelled mobile equipment which usually travels the roadway."
o

2.

30 C.F.R.

§

56.9300 provides:
Berms or guardrails.

Ca) Berms of guardrails shall be provided and
maintained on the banks of roadways where a dropof f exists of sufficient grade or depth to cause
a vehicle to overturn or endanger persons in
equipment.
Cb) Berms or guardrails shall be at least midaxle height of the largest self-propelled mobile
equipment which usually travels the roadway.
(c) Berms may have openings to the extent necessary for roadway drainage.
(d) Where elevated roadways are infrequently
traveled and used only by service or maintenance
vehicles, berms or guardrails are not required
when the following criteria are met:

302

(1) Locked gates are installed at the
entrance points to the roadway.
(2) Signs are posted warning that the

roadway is not bermed.
C3) Reflectors are installed at 25-foot
intervals along the perimeter of the
elevated roadway.
(4) A maximum speed limit of 15 miles
per hour is posted.
(5) Road surface traction is not to be
impaired by weather conditions, such as
sleet and snow, unless corrective measures are taken to improve traction.
(e) This standard is not applicable to rail bedso
3. On the inspection day, Inspector Dennehy observed a
12-foot wide Kawasaki rubber-tired front-end loader carrying
material from the pit area to the crusher along a 16-foot wide
"elevated roadway," i.e. I! at the crusher end of the roadway there
was an elevated ramp running approximately 40 feet in lengtho
For the top 10 to 12 feet of the ramp there was a drop-off of 5
to 6 feet. The drop-off gradually tapered off to zero feet as
the ramp dropped downward 40 feet from the top end at the crusher
to the bottom level where the roadway was flat. There was no
berm (or guardrails) along the entire length of the roadway.
CTr. 305-309, 311, 316, 317, 340, 341). Toward the top of the
ramp, the drop-off was sufficient to overturn the Kawasaki F.E.L.
CTr. 3 0 9) •
4. Therefore, the violation occurred as cited by the
Inspector.
5. The hazard created by the violation was that the loader
would drop over the edge of the ramp'and turn over. CTr.
311-312). Such an accident could result in injuries ranging from
minor "lost time" injuries to fatal (Tr. 312-313) to the operator
of the F.E.L. (Tr. 315-316). Thus, this is found to be a
serious violation.
6. Since the violative condition was obvious (Tr. 319), the
Respondent is found to be negligent in the its commission.
7. The violation, however, is not found to be "significant
and substantial":

303

a. Only the one piece of equipment uses the elevated
portion of the roadway {ramp) at any given time.
(Tr. 321).
b. There was roll-over protection over the operator's
cab on the F.E.L.
(Tr. 314-315, 321, 341).
c. There have been no prior accidents involving the
F.E.L.
(Tr. 332, 352).
d. No vehicles have gone over the side of the ramp.
(Tr. 333).
e.
It is not reasonably likely that the F.E.L. would
go over the side of the ramp at the highest point where the
drop-off is 5 to 6 feet.
(Tr. 335; 337u 338u 339u 34lu 342u
344, 346).
It is concluded that it was unlikely that the hazard envisioned by the Inspector to result from the violation would come
to fruition to cause injuries and that it is also unlikely thatu
if the F.E.L. did go over the side of the ramp, it would result
in any injuries of a serious nature.
Accordinglyu the prerequisites for the determination of a
significant and substantial" violation 0 as set forth by the
Federal Mine Safety and Health Review Commission in Mathies Coal
Co., 6 FMSHRC 1, 3-4 (January 1984) were not established, and the
""S& S" finding on the face of the Citation is vacated. The
Citation in other respects, including the Inspector's determination of negligence, is affirmed.
91

E.

Citation No. 3450265.

1. The condition cited by Inspector Leo E. Hotz on December 6, 1989, as a violation of 30 C.F.R. § 56.1000 is as follows:
The operator has failed to notify the proper MSHA
off ice of the recent commencement -0f operation
and location of his port~ble crusher.
2.

30 C.F.R. § 56.1000 provides:

Notification of commencement of operations and
closing of mines.
The owner, operator, or person in charge of any
metal and nonmetal mine shall notify the nearest
Mine Safety and Health Administration and Metal
and Nonmetal Mine Safety and Health Subdistrict

304

Office before starting operations, of the approximate or actual date mine operation will commence.
The notification shall include the mine name, location, the company name, mailing address, person in
charge, and whether operations will be continuous
or intermittent.
When any mine is closed, the person in charge
shall notify the nearest subdistrict off ice as
provide·d above and indicate whether the closure
is temporary or permanent.
3.
The violation occurred as cited by the Inspector in the
Citation.
(Tro 360, 361). Specifically 8 Respondent commenced
its operation and failed to notify MSHA by letter or telephone
(Tr. 362) that it was going to do so.
(Tro 362-373v 383v 384u
393, 396). When this Citation was written, MSHA did not know the
location of Respondentws mining operationo
(Tr. 366u 373)c
4.
The Inspector did not designate, nor is it foundv that
this violation is significant and substantial.
5. While the violation of this standard could not cause an
accident--or directly cause an injury--(Tr. 364)u MSHA cannot
fulfill its mandate to inspect without such notification and the
resultant knowledge where mines are located,
(Tr. 363-365).
This is found to be a very serious violation.
(Tr. 367-368).
6.
Since it was Respondent's third violation of this standard and, since Respondent has been in business a sufficient time
to know of this requirement, it is found to have been guilty of a
significant degree of negligence in the commission of this infraction.
(Tr. 367, 370-371, 385-388).
7. MSHA, on the basis of a "special assessment," sought a
penalty of $300 at the administrative level.
In view of the history of Respondent's non-compliance with this important regulation--vital to safety enforcement--it is fou.nd that the administrative level penalty, even though a, special assessment, is beiow
the absolute minimum <$400) which should be assessed here.
ASSESSMENT OF PENALTIES
Based on the foregoing findings and conclusions, the
following penalties are FOUND APPROPRIATE and ASSESSED:

305

Citation No.

Penalty

3450265
3449865
3449867
3449868
3450113
3450115
3450117
3452863
3452866
3450118

$

TOTAL

$1,219

400
125
125
125
20
50
125
125
74
50

ORDER
Respondent shall pay the Secretary of Labor within 40 days
from the date of this decision the penalties above assessed
totaling $1219.00.

?Jf~~~ca. ~4-t /t -

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80194 (Certified Mail>
Ms. Ruth Gray, Secretary, SKELTON INC., P.O. Box 124, Norwood, CO
81423
(Certified Mail)

/ek

306

ADMINISTRATIVE LAW JUDGE ORDERS

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

January 15, 1991

SECRETARY OF LABOR,
·on behalf of
MARTIN L. RICHARDSON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 91-143-DM

MD 90-19

v.
Mine I.D. No. 26-02161

F. K. c. , INC. I
Respondent

ORDER OF TEMPORARY REINSTATEMENT
The Secretary of Labor has applied for an order temporarily
reinstating Applicant Martin L. Richardson to his former position
with Respondent.
The file reflects that on December 26, 1990, Respondent was
served, by express mail, with a copy of the Secretary's application for temporary reinstatement.
Respondent has not requested a hearing on the Secretary's
application and more than 10 days has elapsed since Respondent
received the application.
Since no hearing has been requested, the Judge, pursuant to
Section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et ~, and Commission Rule 44, 28 C.F.R.
§ 2700.44 as amended [51 F.R. 16033 <1986)] is required to immediately review the Secretary's application. On the basis of the contents of the file, if the Judge
determines that the miner's complaint is not frivolously brought,
he shall issue an order of temporary reinstatement.
The file herein includes an Affidavit indicating Respondent
did business and operated facilities in the production of sand
and gravel and is, therefore, an operator within the meaning of
Section 3Cd) of the Mine Act.
The Affidavit further states as follows:
At all times relevant, Applicant Martin L. Richardson was
employed by F.K.C. as water haul truck operator at F.K.C. 's pit
and was a miner, as defined by Section 3(g) of the Mine Act.

30 7

On August 8, 1990, an MSHA inspector was on the mine site to
conduct a regular inspection. On that date, the inspector, after
watching the truck in operation, questioned the Applicant about
the condition of the brakes on the truck.
The Applicant informed
the inspector that the truck had no brakes, and he felt it was
unsa
to operate the truck without brakes.
The operator was aware of the Applicant's protected activity
because he was confronted by Richard Grant, a supervisor. Grant
threatened the Applicant with discharge, if he spoke to an MSHA
inspector again.
The Applicant was laid
f and ultimately fired after the
truck he operated was removed from service for lack of brakeso
Mine Management 1 s actions were motivated by the Applicant's
protected activity.
Discussion
Based on the contents of the file, it is indicated that the
has jurisdiction to consider the request for temporary
reinstatement.

Co~nission

Further, talking to an MSHA inspector and informing him of
the condition of the brakes on the truck was an activity protected under the Mine Act.
In addition, Respondent took adverse action against Applicant in discharging him.
Finally, the facts indicate Respondent's actions were motivated by Applicant's activity which was protected under the Mine
Act.

For the foregoing reasons, I conclude that the application
filed herein was not frivolously brought.
Accordingly, I.enter the following:
ORDER
The application for temporary reinstatement is GRANTED.
2. Respondent is ORDERED to reinstate Applicant Martin L.
Richardson to the position he held on August 8, 1990, at the same
rate of pay and with the same equivalent duties that were
assigned to him immediately prior to his discharge.

308

3.

The undersigned Judge will retain jurisdiction of this

case.

4. The parties will be afforded an opportunity to be heard
on the merits of any discrimination complaint hereafter filed
herein.
5. Correspondence was forwarded by the Judge's office to
Martin L. Richardson at the address of 2316 Statz Street, North
Las Vegas, Nevada 89030.
The letter was returned indicating
delivery had not been made.
The envelope was marked "ATTEMPTED,
NO'f KNOWN. 11
An agent of Airborne Express also indicated to the Judge
that they could not locate Mr. Richardson.
Mr. Richardson also called the Judgevs office and stated
that his telephone had been disconnected because he didnut have
money to pay his telephone bill.
In view of the above, a representative of the Secretary is
directed to attempt personal service of this order to
Mr. Richardson.

ris
ative Law Judge
Distribution:
Mr. Martin L. Richardson, 2316 Statz Street, North Las Vegas, NV
89030
(Regular Mail)
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA ~2203 {Via Facsimile)
Mr. Fred Knobel, President, F.K.C. INCORPORATED, 520 West Sunset
Road No. 7, Henderson, NV 89015 (Airborne Express)

/ek

309

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

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

22041

FEB 7 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENAL~Y PROCEEDING
Docket No. VA 90-54
A.C. No. 44-00271-03571-A

v.
Moss No. 1 Prep Plant
ROBERT V. SWINDALL,
Employed by Clinchfield
Coal Company,
Respondent
ORDER DENYING MOTION FOR SUMMARY DECISION
PREHEARING ORDER
On January 7, 1991, Respondent filed a motion for summary
decision pursuant to 29 C.F.R. § 2700.64. Essentially,
Respondent contends that the Secretary did not file a proposal
for a penalty with the Commission within 45 days of the receipt
by the Secretary of Respondent's notice of contest. The notice
of contest was received by .the Secretary on August 31, 1990.
On February 8, 1989, the Secretary issued a section
104(d) (2) order to Clinchfield Coal Company alleging a violation
of 30 C.F.R. § 75.200. In August 1990 (the letter is not dated),
MSHA notified Respondent by mail that it determined that a civil
penalty was warranted under Section llO(c) of the Act against
Respondent on the ground that as an agent of Clinchfield Coal
Company, he knowingly authorized,· ordered, or carried out the
violation cited against Clinchfield. On August 18, 1990,
Respondent signed a notice of contest and request for hearing
with the Review Commission. This was received the Secretary on
August 31, 1990.
On October 3, 1990, the Secretary filed a Petition for
Assessment of Civil Penalty entitled Secretary of Labor, Mine
Safety and Health Administration v. Clinchfield Coal Company,
Docket No. VA 90-54. Enclosed with the Petition was a notice of
proposed assessment indicating a proposed penalty ~gainst
Mr. Robert Vernon Sindell, employed by Clinchfield Coal Company.
His address is given as P.O. Box 4100, Lebanon, Virginia 24266,
which counsel for Respondent states is the Clinchfield corporate
office address. A letter qated September 28, 1990 was also
addressed to Mr. Robert Vernon Swindell at the Clinchfield
corporate off ice informing him that a petition for a penalty has
been filed and serving two copies on Mr. Swindell.

310

On November 5, 1990, Respondent filed a "conditional
response" to the Petition. On November 5, 1990, Clinchfield Coal
Company filed an Answer to the Petition in which it asserted that
it was previously assessed a penalty for the alleged violation
under section llO(a) of the Act, and that the proposed penalty
was paid on April 21, 1989. On November 16, 1990, the case
entitled Secretary of Labor, Mine Safety and Health
Administration CMSHA) v. Robert Vernon Swindell, Employed by
Clinchfield Coal Company, Docket No. VA 90-54 was assigned to me.
A copy of the order of assignment was sent to Mr. Robert Swindell
and to his attorney on the same date.
On November 20, 1990, the Secretary filed a motion to amend
her petition for assessment of civil penalty. In the motion, she
stated that the petition "was sought in error against Clinchfield
. • . (and) the Secretary intended to file against an individual
pursuant to section llO(c) of the • • . Act. 11 The Secretary
sought an amendment to the caption of the case to reflect that
the Respondent is Robert v. Swindell, employed by Clinchfield
Coal Company. The Secretary's amended petition seeks a civil
penalty against Mr. Swindell because as an agent for the
corporate mine operator (Clinchfield) he knowingly authorized,
ordered, or carried out the violation for which Clinchfield was
cited.
On November 29, 1990, I granted the Secretary's motion to
amend and granted Respondent 30 days from the date of service of
the amended petition to file an answer.
On December 2, 1990, Respondent filed a conditional Response
to the motion to amend. on December 17, 1990, he filed copies of
interrogatories which had been served by mail on the Solicitor
December 14, 1990. on December 19, 1990, Respondent filed an
answer to the amended Petition. On December 19, 1990, I issued a
Prehearing Order, compliance with which was extended without date
by order issued January 15, 1991.
on January 7, 1991, Respondent (the corr~ct spelling of
whose name is Robert Vernon Swindall) filed-his motion for
summary decision, together with an affidavit of Robert Vernon
Swindall and a memorandum in support of the motion. The
Secretary filed a response to the motion on February 1, 1991.
The motion for Summary Decision includes an affidavit from
Mr. Swindall in which he contends that the delay in filing the
petition prejudiced him in that (1) his attorney has been
required to devote additional time to the legal issues involved;
(2) the proceeding has been delayed, causing Swindall additional
worry and concern; (3) bringing Clinchfield in the case
heightened swindall's anxiety and concern; (4) Swindall has been
having serious back trouble and has been off work on disability.

311

Respondent's memorandum states that the plant in which
Swindall was employed (and in which the alleged violation
occurred) has been shut down since April 5, 1989. It states that.
the plant's work force was disbursed and "few, if any, of the
plant's former workers are .now.employed by Clinchfield • . " It
states that the steps involved in the citation have been
physically deteriorating for approximately two years since the
citation. These assertions were not controverted by the
Secretary.
The issues raised by the motion are multiple and complex:
1. When was the section llO{c) proceeding before the Review
Commission instituted against Respondent Swindall?
2. When did Swindall receive.notice that a section llO(c)
case was being filed against him?
3o

Was the case filed in time under Commission Rule

20 C.F.R. § 2700.27(a)o

4. If the case was not timely filed, did the Secretary show
adequate cause for the late filing?
5. If the case was not timely filedr was Swindall
prejudiced by the date filing?
I

Obviously, when the Secretary commenced the proceeding
entitled Secretary of Labor, Mine Safety and Health
Administration v. Clinchfield Coal Company with a form petition
not referring to Swindall or section llO(c), she did not
institute a proceeding against Swindall, whatever her secret
intention. I conclude that the case against Swindall was
commenced when the secretary filed her Motion to Amend on
November 20, 1990.
II ,

Respondent was notified in August 1990, that the Secretary
intended to file a Petition for penalty against him under section
llO(c). He signed and submitted a notice of contest and request
for hearing on August 18, 1990. Therefore, he was on notice of
the Secretary's intention as of August 1990.
III

Section 105 of the Act covers the enforcement procedure for
mine operator violations. ·rt gives the operator 30 days from the
date of notification of a proposed penalty assessment to notify
the Secretary that he wishes to contest the assessment. When

312

such a notice of contest is filed, the Secretary is required to
"immediately advise the Commission of such notification • • • "
Section llO(c) which provides for penalties against agents of
corporate operators does not set out any procedures for its
enforcement, but provides that an agent who knowingly authorized,
ordered or carried out the violation of the corporate operator is
subject to the same penalties as the operator. 29 C.F.R.
§ 2700.27 requires that "within 45 days of receipt of a timely
notice of contest (or] a notification of proposed assessment of
penalty, the Secretary shall file a proposal for a penalty with
the Commission." This procedural rule applies to "the operator
11
or any other person against whom a penalty is proposed .
§ 2700.25.
The Secretary did not file a proposal for a penalty against
Swindall within 45 days of the receipt of a timely notice of
contest. In fact, it was not filed until more than 30 days after
the expiration of the 45 day period.
The Commission addressed the question of the Secretary s
late filing of a penalty petition in Salt Lake County Road
Department, 3 FMSHRC 1714 (1981). The Commission held, inter
alia, that if the Secretary seeks permission to file late (under
Rule 9), (she] must predicate (her] request upon adequate cause< ai
Id., 1716. In this case the Secretary did not seek permission to
file late, nor did she establish adequate cause~ she merely
states that the original petition was filed in error and that she
"moved to correct the error as soon as she became aware of the
problem." Sloppiness in preparing pleadings hardly qualifies as
adequate cause.
In the Salt Lake County Road Department decision, supra, the
Commission also held that 11 an operator may object to a late
penalty proposal on the grounds of prejudice." This was said to
be based on the administrative law principle that "substantive
agency proceedings, and effectuation of a statute's purpose, are
not to be overturned because of a procedural error, absent a
showing of prejudice." Has Respondent Swindall shown prejudice
in this case?
The facts that the delay caused emotional distress to
Respondent, and required additional legal work to address the
legal issues related to the filing delay do not constitute
prejudice in a legal sense. The assertions that the delay
resulted in witnesses being "disbursed", memories fading and the
deterioration of the physical condition of the area of the
alleged violation, raise more substantial questions. The alleged
violation occurred on February a, 1989. In August 1990, more
than one and a half years later, the Secretary notified Swindall
that she intended to proceed against him under section llO(c).
No explanation has been advanced by the Secretary for such an
extraordinary delay. The Secretary's argument that the lapse of

313

time prejudices the Secretary as much as it prejudices Respondent
is disingenuous.
The delay is the Secretary's, and one should
not have to defend stale claims. However, the delay from
February 1989 to August 1990 is not the delay for which the
instant motion is filed, but rather the delay in filing a penalty
petition with the Commission after the notice of contest was
received by the Secretary. There is no evidence or any serious
assertion that the delay from October 15, 1990 to
November 20, 1990, in itself, caused prejudice to Respondent
which would handicap him in presenting his defense.
I conclude
that the delay in filing the action before the Commission, i.e.,
more than 45 days after Respondent served his notice of contest
is not shown to have prejudiced Respondent and does not "justify
the drastic remedy of dismissal." Salt Lake county, supra, at
p. 1717.
ORDER
Accordingly, the Motion Summary Decision is DENIEDo
The parties are FURTHER ORDERED to comply with the
prehearing order of December 19, 1990:
Paragraph 1 on or before
February 25, 1991; paragraph 2 on or before March 15, 1991, and
inform me of inappropriate hearing dates in April or May 19910

.

; Ii

/)

I

'

.

:

0{, 1i t...'. ~ /~1'J' o CI.:·.,:.~<~·~(:_,

1

' James A. Broderick

·

Administrative Law Judge

Distribution:
Lisa A. Gray, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
W. Challen Walling, Esq., Penn, Stuart, Es_kridge and Jones, 306
Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 (Certified
Mail)

314

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

February 20· 1991
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-30
A. C. No. 15-15509-03532

v.

No. 2 Mine

TOLER CREEK ENERGY,
INCORPORATED,
Respondent
ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
This case is pending before me on the operator's motion to
dismiss.
on October 25, 1990, the Commission received the operator 1 s
blue card requesting a hearing.
Thereafter, on December 3, 1990, the Solicitor fi~ed a
motion to dismiss a penalty proposal in this docket number with
respect to Elite Mining Company. The Solicitor advised that this
petition had been filed on November 16, 1990. However, the
Commission had no record of receiving a penalty proposal regarding Elite. At the request of my law clerk, the Solicitor forwarded that proposal which was received on January 14, 1991. on
January 17, 1991, I entered an order dismissing this docket
number with respect to Elite.
Meanwhile on January 10, 1991, a penalty-proposal was filed
under this docket number against Toler creek.
on January 28,
1991, the operator filed a motion to dismiss based upon the
Solicitor's failure to file the proposal within the required 45
days. 29 C.F.R. § 2700.27(a). on February 5, 1991, the Solicitor
opposed dismissal and moved to have the late filed petition
accepted. The Solicitor referred to the confusion arising from
the initial involvement of an unrelated operator in this docket
number and represented that the delay in filing the petition
against Toler was due to clerical error and was not for dilatory
purposes.
By letter filed February 6, 1991, the operator again
sought dismissal.
There is no dispute that the Secretary's penalty proposal
was filed 71 days late. However, the operator's motion is
without merit. The Commission's decision in Salt Lake County
Road Department, 3 FMSHRC 1714 (1981), relied upon by the operator does not support its position.
In that case the Commission

315

found that clerical problems constituted good cause for the delay
and noted that at that time the Secretary was engaged in voluminous litigation. In the instant matter, confusion with the two
operators occurs at a time when cases filed with the commission
are once again increasing. In FY 1987 there were 1,579 new
filings; in FY 1988, 1,800; in FY 1989, l,889; in FY 1990, 2,029;
and 873 for the first third of FY 1991. An increased case load
is not a blanket excuse for not meeting filing deadlines, but it
is a relevant factor that may be considered. Finally, and
perhaps most importantly, the operator here has not shown any
prejudice. Under the circumstances, I conclude that good cause
existed to justify the late filing.
In light of the foregoing, it is ORDERED that the operator 1 s
motion to dismiss be and is hereby DENIED.
It is further ORDERED the Solicitor 1 s motion to accept the
late filing of the penalty proposal be and is hereby GRANTEDo
It is further ORDERED that this case be and is hereby
assigned to Administrative Law Judge James A. Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address~
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6220

Paul Merlin
Chief Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.
Box 553, Charleston, WV 25322
(Certified Mail)
/gl

316

o.