DECEMBER 1993

COMMISSION DECISIONS AND ORDERS
12-06-93
12-09-93
12-13-93
12 16-93
12-17-93
12-21-93
12-22-93
12-22-93

secretary Labor on behalf of Loy Peters et al.
v. Thunder Basin Coal Company
WEST 93-652-D
Air Products and Chemicals, Inc.
PENN 91-1488-R
Donald Guess and Paul Shirel, employed
by Pyro Mining Company
KENT 91-1340
United States Steel Mining Company
WEVA 92-783
Secretary Labor on behalf of Danny Shepherd
v. Sovereign Mining Company
KENT 94-69-D
Martinka Coal Company
WEVA 93-45-R
Harold Mitchell, employed by H B & B
VA
92 1.80
Equipment Company
Vincent Braithwaite v. Tri-Star Mining
WEVA 91-2050-D

Pg. 2425
Pg. 2428
Pg. 2440
Pg. 2445
Pg. 2450
Pg. 2452
Pg. 2458
Pg. 2460

.ADMINISTRATIVE LAW JUDGE DECISIONS
12-07-93
12-08 93
12-08 93
12 08 93
12-09-93
12-16-93
12-1.7-93
1.2-20-93
12-21-93
12 30-93
1.2-30-93

Materials Delivery
USWA on behalf of Ronald Shane Bird v.
General Chemical Company
Thomas P. Gates v. Gouverneur Talc Co.
Manalapan Mining Company
Sec. Labor on behalf of Herbert Collins
v. J & S Collieries, Inc.
Slade Vanover v. Shamrock Coal Company
Jamieson Company
Consolidation Coal Company
Benevento Sand and Gravel
Peabody Coal Company
sec. Labor on behalf of Carroll Johnson
and UMWA v. Jim V.1al ter Resources

VA

93-69-M

Pg. 2467

WEST 92-596-DM
YORK 93-135-DM
KENT 93-666

Pg. 2475
Pg. 2494
Pg. 2499

KENT 93-910-D
KENT 93-359-D
WEST 92-314-M
WEVA 92-873-R
YORK 93-138-M
KENT 93-369

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

SE

93-182-D

2502
2505
2549
2558
2569
2578
2588

.ADMINISTRATIVE LAW JUDGE ORDERS
12-21 93

Sagniaw Mining Company

LAKE 93-165

Pg. 2602

DECEMBER 1993

Review was granted in the followins case during the month of December;
Secretary of Labor on behalf of Danny Shepherd v. Sovereign Mining Company/
Docket No. KENT 94-69-D.
(Judge Feldman/ November 18 1993.)
1

Secretary of Labor, MSHA v. Harold Mitchell, employed by H B & B Equipment
Company, Docket No. VA 92-180.
(Chief Judge Merlin, Default Decision of May
20, 1993 -unpublished.)
Secretary of Labor, MSHA v. Fort Scott Fertilizer-Culler, Inc., et al., Docket
No. CENT 92-334-M and CENT 93-117-M.
(Judge Feldman, November 18, 1993.)
There were no cases filed in which review was denied.

COMMISSION DECISIONS AND ORDERS

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

20006

December 6, 1993

TEMPORARY REINSTATEMENT
PROCEEDING
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of LOY PETERS,
DONALD GREGORY, and
DARRYL ANDERSON,
Complainants

Docket No. WEST 93-652-D

v.

THUNDER BASIN COAL COH.PANY,
Respondent
DECISION
In this discrimination proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("the Mine Act"),
Thunder Basin Coal Col!lpany ("respondent") has filed a petition for
discretionary review of Administrative Law Judge Arthur J. Amchan's November
2, 1993, order of temporary reinstatement, issued pursuant to Commission
Procedural Rule 45, 58 Fed. Reg. 12158 (March 3, 1993), to be codified at 29
C.P.R. § 2700.45 (1993). We grant respondent's petition for discretionary
review and, for the reasons that follow, affirm the judge's order requiring
the temporary reinstatement of Loy Peters, Donald Gregory, and Darryl Anderson
("complainants").
Complainants were employed at respondent's Black Thunder mine as
technicians-welders when they were laid off on July 8, 1993. On August 31,
1993, complainants jointly filed a discrimination complaint with the Secretary
of Labor ("Secretary") pursuant to Section 105(c)(2) of the Mine Act, alleging
illegal discharge. Following an investigation, the Secretary determined that
the discrimination complaint filed by the miners was not frivolous and on
September 24, 1993, filed an application for temporary reinstatement. The
Secretary alleged that each of the complainants was illegally discharged in
retaliation for exercising specified statutory rights protected under the Mine
Act. Respondent contended that the termination of the three complainants
occurred as a result of a legitimate business decision to reduce its work
force at the Black Thunder Mine by 34 miners. On October 20 and 21, 1993, an
evidentiary~hearing on the application was held.
On November 2, 1993, the
judge issued his decision, concluding that the complaint of illegal discharge
filed by the three miners was not frivolous.

2425

After conducting an extensive evidentiary hearing consisting of
testimony from seven witnesses and the admission into evidence of 50 exhibits,
the judge evaluated the evidence as to each individual complainant and
concluded, "[T]he Secretary has met his burden in establishing that the
discrimination complaints of Loy Peters, Darryl Anderson, and Donald Gregory
alleging retaliatory discharge on July 8, 1993 are 'not frivolous.'"
Slip
op. at 12
As the Commission has previously stated, "The scope of a temporary
reinstatement hearing is narrow, being limited to a determination by the judge
as to whether a miner's discrimination complaint is frivolously brought."
Secretary of Labor o.b.o. Price and Vacha v. Jim Walter Resources, Inc., 9
FMSHRC 1305, 1306 (August 1987), aff'd, Jim Walter Resources. Inc. v. fMSHRC,
920 F.2d 738 (11th Cir. 1990). That is the only issue before us. We have
carefully reviewed the record, the petition for discretionary review, and the
Secretary's response thereto, and conclude that the judge's determination that
the complaint of the three miners is not frivolous is supported by substantial
evidence and is consistent with applicable law.
Respondent has additionally applied for a stay of the order of temporary
reinstatement. Upon review of the application, and the Secretary's response
in opposition thereto, we deny the application for a stay. We note, however,
that respondent's alternative request that the complainants be economically
reinstated has been accepted by the individual complainants. Secretary's
Response in Opposition to Petition for Discretionary Review and Application to
Stay Order at 25 n.l5.
Accordingly, the judge's order requiring the temporary reinstatement of
Loy Peters, Donald Gregory, and Darryl Anderson is affirmed.

Arlene Holeri,Chairlllail

L. Clair Nelson, Commissioner

2426

Distribution
Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Laura Beverage, Esq.
Jackson & Kelly
1660 Lincoln Street
Denver, CO 80264
Administrative Law Judge Arthur J. Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2427

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

20006

December 9, 1993
AIR PRODUCTS AND CHEMICALS, INC.

v.

Docket No. PENN 91-1488-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

BEFORE:

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

DECISION
BY:

Backley and Nelson, Commissioners 1

This contest proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). It
involves a citation alleging a violation of section 103(a) of the Mine Act
issued to Air Products and Chemicals, Inc. ("Air Products") after it denied an
inspector of the Department of Labor's Mine Safety and Health Administration
("MSHA") entry to its Cambria Co-Generation Facility ("Cambria") . 2 Administrative Law Judge Gary Melick vacated the citation. 13 FMSHRC 1657 (October
199l)(ALJ). He concluded that, although MSHA had statutory jurisdiction over
coal handling portions of the Cambria operation, MSHA had failed to displace
the enforcement authority of the Department of Labor's Occupational Safety and
Health Administration ("OSHA"). 13 FMSHRC at 1661-63. The Commission granted
cross-petitions for discretionary review of the judge's decision filed by the
Secretary of Labor and Air Products. For the reasons discussed below, we
affirm the judge's decision in part and reverse in part.

1

Commissioners Backley and Nelson join in this op1n1on to reverse the
judge's determination that Air Products and Chemicals, Inc. did not violate
section 103(a) of the Mine Act, 30 U.S.C. § 813(a). Commissioner Doyle, writing
separately, concurs in result with Commissioners Backley and Nelson. Chairman
Holen, dissenting, would vacate the citation alleging a violation of section
103(a) and affirm in result the judge's decision.
2

Section 103(a) of the Act provides in pertinent part that "any authorized
representative of the Secretary ... shall have a right of entry to, upon, or
through any coal or other mine." 30 U.S.C. § 813(a).

2428

I.

Factual and Procedural Background
Cambria uses bituminous coal refuse and "run-of-mine" coal to produce
electricity and steam. 3 13 FMSHRC at 1658, The coal refuse, provided by RNS
Services, Inc. ( "RNS") , is delivered by truck to Cambria. 4 The refuse is
deposited into a hopper, where it passes through a grizzly, which separates
and removes over-sized material. Id. The refuse is transferred, stored, and
then conveyed to a Bradford breaker, which breaks and screens the material in
a rotating drum. Id. The material is further screened, sized, crushed, and
stored until it is fed into combustion boilers. Id. The run-of-mine coal is
delivered by truck to a hopper, then transferred, and stored. Id. That
material also is screened, sized, crushed, and stored until it is burned. 13
FMSHRC at 1658-59.
On August 2, 1989, during the initial stages of Cambria's construction,
MSHA Subdistrict Manager Tim Thompson met with Air Products officials to
determine whether the facility was subject to Mine Act jurisdiction. 13
FMSHRC at 1659. Air Products indicated that the refuse supplier would perform
coal processing at its mine before the refuse was transported to Cambria, and
that Air Products would only customize the refuse by sizing and crushing it to
the particular specifications required by its boiler. Id. Thompson advised
Air Products that Cambria would not fall within MSHA's jurisdiction. Id.
Air Products completed construction of the facility and trained its
employees in accordance with OSHA specifications and regulations. 13 FMSHRC
at 1659-60. In August 1990, OSHA conducted a routine inspection of the entire
plant and issued citations. 13 FMSHRC at 1660.
In September 1990, MSHA discovered that RNS would not be performing
onsite processing but that processing would take place only at Cambria. 13
FMSHRC at 1659. Subdistrict Manager Thompson telephoned Terry Lane, a
regional administrator for OSHA, explaining his belief that MSHA had
jurisdiction over the Cambria coal handling facilities and inviting Lane to
attend a meeting on October 31 to discuss Mine Act jurisdiction. 13 FMSHRC at
1659; Tr. 125. Thompson testified that Lane stated that he would not attend,
but that someone from OSHA's Pittsburgh office might attend. 13 FMSHRC at
1659; Tr. 125. No OSHA representatives were present at the meeting, and MSHA
did not further contact OSHA. 13 FMSHRC at 1659.
During the October meeting, Thompson and Air Products officials
discussed the fact that RNS was not screening or sizing the coal before
delivering it to Cambria and that Air Products had acquired and was using a
Bradford breaker. Tr. 84-85, 104-05, 148-49. Thompson advised Air Products
3

Tr. 62, 102.

4

Tr.

Refuse is material rejected in initial coal processing.
"Run-of-mine" coal is coal that has not been processed. Tr. 74.

MSHA asserts jurisdiction over RNS and its independent contractors.
64-65, 73-74.

2429

that Cambria's coal handling facilities were subject to Mine Act jurisdiction.
13 FMSHRC at 1659. MSHA officials subsequently examined the coal handling
facilities at Cambria, and again met with Air Products, confirming MSHA's
asserted jurisdiction. Tr. 85-86.
In April 1991, the Associate Solicitor of Labor concluded in a written
opinion that certain of Cambria's coal handling facilities fell within Mine
Act coverage. S. Exh. 4; Tr. 90. On May 24, 1991, during a compliance
assistance visit at the Cambria plant, MSHA Inspector Gerry Boring discussed
the Solicitor's opinion with an Air Products official. Tr. 92. On September
5, 1991, upon returning to the facility to conduct a routine inspection,
Inspector Boring was denied entry and, accordingly, issued a citation alleging
a violation of section 103(a) of the Mine Act. Tr. 46-47. The citation was
terminated after the plant manager allowed him entry. 5 S. Exh. 1; Tr. 47.
Air Products subsequently contested the citation, and an expedited hearing was
held before Judge Melick.
The judge found that some areas in the Cambria plant were subject to
Mine Act jurisdiction since they contained "structures," "equipment," and
"machinery" used in the "work of preparing the coal", as that phrase is
defined in section 3(i) of the Mine Act, 30 U.S.C. § 802(i). 13 FMSHRC at
1661. The judge vacated the citation, however, because he determined that
MSHA's inspection of the Cambria facility did not reflect "a reasoned
resolution of the jurisdictional question by the Secretary and her agencies"
but, rather, "resulted from an ad hoc unilateral assertion of jurisdiction by
MSHA." 13 FMSHRC at 1663 (citations omitted).
II.

Disposition of Issues
A.

Mine Act Jurisdiction

Air Products argues that the judge erred in finding the Cambria facility
a "mine" subject to the Mine Act, because although it engages in some of the
activities listed in section 3(i) of the Act as the "work of preparing the
coal," its preparation activities are not those usually performed by a coal
mine operator. A.P. Br. at 5, 12. Air Products states that it does not
prepare coal for resale but, rather, as the ultimate consumer, handles coal
merely to consume it generating electricity. A.P. Br. at 9.
Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each "coal or
other mine" affecting commerce is subject to the Mine Act. Section 3(h)(l) of
the Mine Act, 30 U.S.C. § 802(h)(l), broadly defines "coal or other mine" as
including "facilities, equipment [and] machines ... used in ... the work of
preparing coal .... " The term "work of preparing the coal," as defined in
section 3(i) of the Act includes "breaking, crushing, sizing [and] storage" of
coal, and "such. other work of preparing ... coal as is usually done by the
5

Boring issued additional citations, contests of which have been stayed
pending disposition of this case. Tr. 48; A.P. Post-Arg. Br. at 5 n.l.

2430

operator of [a) coal mine."
In Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), the
Commission concluded that a culm bank operation, in which culm (anthracite
coal mining waste) was screened and crushed to the specifications required by
Westwood's electric generation facility, was subject to Mine Act jurisdiction.
11 FMSHRC at 2412-15. The Commission explained that Westwood, which performed
some of the processes enumerated in section 3(i) of the Mine Act, engaged in
the work of preparing coal that is usually done by a coal mine operator. 11
FMSHRC at 2414-15. The Commission rejected Westwood's "ultimate consumer"
argument that its facility was not subject to Mine Act jurisdiction because
Westwood did not prepare coal for resale but, rather, for its own consumption.
!d.

The Commission applied similar reasoning in Pennsylvania Electric Co.,
11 FMSHRC 1875, 1879-82 (October 1989) ("Penelec"), concluding that conveyor
head drives used to transport coal at an electric generation facility were
subject to Mine Act jurisdiction. The United States Court of Appeals for the
Third Circuit affirmed this determination, stating that "the delivery of coal
from a mine to a processing station via a conveyor constitutes coal
preparation 'usually done by the operator of a coal mine.'" Pennsylvania
Electric Co. v. FMSHRC, 969 F.2d 1501, 1503 (3d Cir. 1992).
Here, it is undisputed that Air Products engages at Cambria in some of
the coal preparation activities enumerated in section 3(i) of the Mine Act,
namely, breaking, crushing, sizing, and storing coal. A.P. Br. at 12; S. Br.
at 10. In addition, both parties acknowledge that such activities are
essentially similar in nature to those conducted at the Westwood facility.
A.P. Br. at 21 & n.9, 32 n.l6; S. Reply Br. at 8-9. 6 Consistent with
Westwood, we conclude that Air Products, which performs some of the coal
preparation activities listed in section 3(i) of the Mine Act, engages in the
work of preparing coal that is usually done by a coal mine operator. 7 This
holding is also consistent with the Third Circuit's Pennsylvania Electric
decision, in that the Cambria coal handling structures, equipment, and
machinery, like Penelec's conveyor head drives, perform functions necessary in
the "work of preparing the coal" before the coal is transferred to the boiler
building to produce energy. We therefore affirm the judge's finding that
Cambria's coal handling facilities are subject to Mine Act jurisdiction.
6

Air Products does not dispute the judge's statement that:
Air Products acknowledges that the nature of the
facility herein is essentially indistinguishable from
the nature of the facility found by the Commission in
Westwood ... to be within Mine Act jurisdiction.

13 FMSHRC at 1661.
7
For the same reasons set forth in Westwood and Penelec, we reject Air
Products's ultimate consumer defense. See Westwood, 11 FMSHRC at 2415; Penelec,
11 FMSHRC at 1881.

2431

B.

Preemption

With respect to whether MSHA properly exercised its statutory enforcement authority sufficient to preempt OSHA's enforcement authority at Cambria,
we note that the Secretary, through MSHA, has promulgated regulations in 30
C.F.R. Part 77 (surface coal mines). Inspector Boring issued citations
alleging violations of Part 77 as covering the working conditions at Cambria's
coal handling facilities. 8 A.P. Post-Arg. Br. at 6-7; see Pennsylvania
Electric, 969 F.2d at 1504, applying Columbia Gas v. Marshall, 636 F.2d 913,
915-16 (3d Cir. 1980). Although these citations are not presently before us
(n.5, supra), there is nothing in the record to persuade us that the cited
surface coal regulations in Part 77 may not colorably be applied to Cambria's
coal handling facilities. In addition, it is noteworthy that before Inspector
Boring issued the citations alleging violations of Part 77 and the access
citation, Air Products had been provided adequate notice, through meetings
with MSHA and a compliance assistance visit, that MSHA would be asserting Mine
Act jurisdiction over those areas of Cambria listed in the Solicitor's opinion
as subject to Mine Act jurisdiction. See Westwood, 11 FMSHRC at 2416;
Penelec, 11 FMSHRC at 1883. In these circumstances, we reverse the judge's
conclusion that MSHA had not properly asserted its jurisdiction.
C.

Violation

As to the issue of violation before us, the relevant factual record and
applicable legal principles are sufficiently clear for resolution on review
without the necessity of a remand. The evidence is undisputed that Air
Products denied Inspector Boring entry based upon its belief that the Cambria
facility was not subject to the Mine Act. Tr. 46. Section 103(a) of the Act
(n.2 supra) grants authorized representatives of the Secretary a right of
entry into all mines for the purpose of performing inspections. See, ~.
Calvin Black Enterprises, 7 FMSHRC 1151, 1156 (August 1985); United States
Steel Corp., 6 FMSHRC 1423, 1430-31 (June 1984); see generally Donovan v,
Dewey, 452 U.S. 594, 598-606 (1981). Given our conclusions above, Air
Products violated section 103(a) by denying Inspector Boring entry.
Accordingly, we reverse the judge's determination that Air Products did not
violate section 103(a), and we affirm the citation.
8

Under section 4(b)(l) of the Occupational Safety and Health Act (the
"OSHAct"), 29 U.S.C. § 653(b)(l), OSHA standards apply to working conditions
unless another federal agency exercises its statutory authority in a manner
preempting OSHA coverage. See Penelec, 11 FMSHRC at 1878-79. In Pennsylvania
Electric, the Third Circuit stated that OSHA preemption analysis requires the
application of a two-part test:
(1)
[whether] a regulation was promulgated by a ...
federal agency other than OSHA; and (2) whether the
regulation promulgated covers the specific "working
conditions" at issue.
969 F.2d at 1504, citing Columbia Gas v. Marshall, 636 F.2d 913, 915-16 (3d Cir.
1980).

2432

Finally, we find it appropriate to reiterate our concern, expressed in
detail in Penelec, 11 FMSHRC at 1885, and Westwood, 11 FMSHRC at 2418-19, that
the Secretary continues to avoid resolving disputes with operators regarding
dual regulation by OSHA and MSHA at electric generation facilities without
implementation of the procedures set forth in the Department of Labor's MSHAOSHA Interagency Agreement, 44 Fed. Reg. 22827 (April 17, 1989), amended 48
Fed. Reg. 7521 (February 22, 1983)("Interagency Agreement"). Conflicting
indications of enforcement authority by the Secretary, through MSHA and OSHA,
may create confusion, compromise safety, and result in higher costs of
production as operators readapt their facilities to comply with competing
regulations. Such confusion may increase upon promulgation of final safety
standards by OSHA applicable to the operation and maintenance of electric
power generation facilities. 9 Implementation of the Interagency Agreement
procedures would resolve such jurisdictional confusion in an expeditious and
effective manner, and we strongly urge the Secretary to follow such a course
of action.

9

OSHA has published proposed safety standards relating to electric power
generation facilities. 54 Fed. Reg. 4974-5024 (January 31, 1989). The proposed
standards have not yet been published as final rules.

2433

III.

Conclusion
For the reasons discussed above, we affirm the judge's determination as
to jurisdiction, but reverse his determination that Air Products did not
violate section l03(a) of the Mine Act. Accordingly, the citation is
affirmed.

Richard V.

Backle~

L. Clair Nelson, Commissioner

2434

Commissioner Doyle, concurring:
I am constrained to concur in the determination that the operations of
Air Products and Chemicals, Inc. ("Air Products") fall within the jurisdiction
of the Mine Safety and Health Administration ("MSHA") and to reverse the
judge's decision, which vacated the citation because there was no evidence of
a reasoned resolution of the jurisdictional question between MSHA and the
Occupational Safety an.d Health Administration ("OSHA").
In Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501 (3d Cir. 1992),
the Court concluded that each of the activities listed in section 3(i) of the
Federal Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C. § 802(i)
( 1988) , as part of the "work of preparing the coal," wherever and by whomever
performed and irrespective of the nature of the operation, subjects anyone
performing that activity to the jurisdiction of the Mine Act, if MSHA has
promulgated a regulation governing the working conditions at issue. 969 F.2d
at 1503. 1
It would appear that, under the Third Circuit's decision, the activities
initially contemplated by Air Products (sizing and crushing coal) would also
have subjected it to Mine Act jurisdiction, although, as found by the
administrative law judge, MSHA advised Air Products that those activities
would not bring it under the Mine Act. 13 FMSHRC 1657, 1659 (October 1991). 2
1

Stroh v. Director, OWCP, 810 F.2d 61 (3d Cir. 1987), which
noted that delivery both to the ultimate consumer of a finished product and to
one purchasing and processing raw coal for its own consumption would fall
outside Mine Act coverage. 810 F.2d at 64. In Pennsylvania Electric, the
Court chose not to treat Pennsylvania Electric Company ("Penelec") as one
purchasing and processing coal for its own consumption. Rather, it treated
·the process
facility, located "within [Penelec' s] electri.c generating
plant" (969 F.2d at 1502), as a separate entity from Penelec's "energy
producing fac
"
at 1504 (emphasis added).
2

If MSHA has jurisdiction, it does not have the discretion to waive it
as to some entities, as it did in settling the factually similar Westwood
Ener~y Properties, 11 FMSHRC 2408 (December 1989).
MSHA agreed not to
exercise jurisdiction over Westwood while simultaneously claiming that the
settlement agreement "[did] not constitute a change in policy by the Secretary
regarding jurisdiction over other similar operations." Secretary's Motion to
Approve Settlement and to Dismiss in Westwood at 2. The Secretary, in
attempting to reconcile his inconsistent actions, relies on cases such as
Heckler v. Chaney, 470 U.S. 821 (1985), which deal with an agency's decision
not to exercise enforcement authority committed to its discretion. Sec. Br. at
10-15. Those cases involve not only a different legal issue .(prosecutorial
discretion vs. waiver of jurisdiction) but a different factual situation as
well. Under the Mine Act, enforcement is not left to MSHA's discretion.
Section 103(a) requires the agency to inspect all surface mines in their
entirety at least twice each year. 30 U.S.C. § 813(a)(l988).

2435

In any event, given the breadth of the Third Circuit's holding. the
judge must be reversed and the citation affirmed.

2436

Chairman Holen, dissenting:
I respectfully dissent. Applying Judge Mansmann's analysis in her
dissent in Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501, 1506-17 (3d
Cir. 1992), I would vacate the citation against Air Products and affirm the
judge's decision in result.
As Judge Mansmann observed, the operator of an electrical generating
facility is not an operator of a coal mine, as that term is commonly
understood. 969 F.2d at 1509. Further, if a coal consumer becomes a coal
preparation facility within the meaning of section 3(h)(l) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 802(h)(l)(l988)("Mine Act"), by
engaging in any of the activities listed in section 3(i), 30 U.S.C. § 802(i),
the Mine Act potentially reaches every end user of coal. 969 F.2d at 1509-10.
Such a broad interpretation is ultimately at odds with the legislative history
of the Mine Act, which is directed to safety and health problems associated
with mining activity. Id. at 1510. Judge Mansmann also reasoned that the
Third Circuit's decisions applying section 3(h)(l) of the Mine Act to the
Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1988), do not support
coverage of ultimate consumers of coal, including those who prepare coal for
their own use.
at 1510-12 & u.S. Finally, she could find no basis for
the preemption of jurisdiction of the Occupational Safety and Health
Administration ("OSHA") by the Mine Safety and Health Administration ("MSHA"),
in light of inconsistent and equivocal exercise of regulatory authority by
MSHA.
at 1513-17. Accordingly, Judge Mansmann concluded that the coal
conveying activity at issue was part of the process of electrical power
generation, rather than coal preparation. Id. at 1517.
I also note that, although the Commission's op1n1on states that its
holdings are consistent with Pennsylvania Electric (slip op. at 4), the
opinion in fact contradicts the Third Circuit's reasoning in Pennsylvania
The Third Circuit found plain the language of sections 3(h)(l) and
3(i) of the 11ine Act, which define "coal or other mine" and "work of preparing
the coal." 969 F.2d at 1503-04. The Commission apparently does not find that
statutory language to be plain. It relies on Commission case precedents in
Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), and in
Pennsylvania Electric Co., 11 FMSHRC 1875 (October 1989)("Penelec"). Slip op.
at 4. Neither Commission case cited based its reasoning on the plain language
of the relevant statutory language; both cases set forth interpretations of
that language, citing in turn earlier Commission precedent in Oliver M. Elam.
Jr .. Co., 4 FMSHRC 5 (January 1982). Westwood Energy Properties, 11 FMSHRC at
2414;
11 FMSHRC at 1880-81. The Third Circuit's holding admitted no
"nature of the operation test" as set forth in Elam nor any limitation on
jurisdiction by MSHA over persons or facilities engaged in coal preparation,
other than a regulation in place that covers the specific working conditions
at issue. 969 F.2d at 1503-04.
The Commission's op1n1on is further at variance with Pennsylvania
Electric in that it examines, and finds adequate, the advance notice that MSHA
provided to the operator before it asserted jurisdiction over the Cambria Cogeneration Facility ("Cambria"). Slip op. at 5. The Third Circuit's holding
admitted no such examination of MSHA's enforcement actions:

2437

[T]he plain language of§ 4(b)(l) [of the Occupational
Safety and Health Act, 29 U.S.C. § 653(b)(l)(l988)]
indicates that the enforcement history surrounding a
regulation is not relevant to the issue of whether
another agency preempts OSHA.
969 F.2d at 1505.
I share my colleagues' concern that indications of conflicting safety
enforcement authority by the Secretary of Labor through MSHA and OSHA create
confusion, compromise safety and reduce productivity, as shifting policies
force operators to modify facilities and work processes. 1 Slip op. at 6.
Results of the Third Circuit's expansion of MSHA's jurisdictional reach
in Pennsylvania Electric remain to be seen. The Third Circuit's decision in
effect requires MSHA to inspect all facilities performing any of the coal
preparation activities listed under section 3(i) of the Mine Act. MSHA may
comply with that decision by increasing the variety and the number of
facilities it inspects, pursuant to the inspection requirement of section
103(a) of the Mine Act, 30 U.S.C. § 813(a). Alternatively, MSHA may attempt
to continue its policy of exercising its jurisdiction selectively, as
exemplified by its assertion of jurisdiction over Cambria and its agreement
not to assert jurisdiction over the admittedly similar Westwood facility (see
slip op. at 4 n.6; Westwood Energy Properties, 12 FMSHRC 1625, 1626 (August
1990)(ALJ)). Unfortunately, the record in this case contains no suggestion
that a reasoned resolution of overlapping safety enforcement schemes within
the Department of Labor may be forthcoming.

Arlene Holen, Chairman

1

Counsel for the Secretary attempted to allay the Commission's concern,
expressed at oral argument, and stated, "this case serves as a public notice
of the Secretary's policy regarding enforcement over coal preparation
facilities." Oral Arg. Tr. at 54. Counsel acknowledged, however, in
Response to the Commission's Request for Information, that confusion will
likely continue:
If an operator is uncertain as to which agency's standards will
apply to its operations, of course, it can eliminate any risk of
noncompliance by complying with the stricter of the two standards
where compliance with one standard automatically accomplishes
compliance with both standards - or, where it does not, by
complying with both standards directly. In the alternative -- and
obviously more practical -- an operator who is uncertain as to
which agency's standards will apply to its operations can simply
approach MSHA and OSHA and ask. Indeed, an operator planning to
construct a new facility can approach MSHA and OSHA and ask for
clarification before it even constructs the facility.
S. Response at 3.

At Cambria, early discussions did not forestall confusion.

2438

Distribution
Susan E. Long,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
R. Henry Hoare, Esq.
Buchanan Ingersoll
600 Grant Street
USX Tower, 57th Floor
Pittsburgh, PA 15219
Administrative Law Judge Gary Helick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2439

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

20006

December 13, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 91-1340

v.

DONALD GUESS, employed by
PYRO MINING COMPANY

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-73

v.

PAUL SHIREL, employed by
PYRO MINING COMPANY

BEFORE:

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

DECISION
BY THE COMMISSION:
In these civil penalty proceedings arlslng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or
"Act"), the issue is whether employees of a partnership comprised of corporate
partners may be subject to individual liability under section llO(c) of the
Mine Act, 30 U.S.C. § 820(c). 1 The Secretary of Labor proposed the
1

Section llO(c) provides, in part:
Whenever a corporate operator violates a mandatory
health or safety standard ... , any director, officer,or
agent of such corporation who knowingly authorized,
ordered, or carried out such violation, ... shall be
subject to the same civil penalties, fines, and
(continued ... )

2440

assessment of civil penalties against Donald Guess and Paul Shirel for their
alleged conduct in knowingly authorizing, ordering, or carrying out violations
of mandatory safety standards by their employer, Pyro Mining Company ( "Pyro") .
Administrative Law Judge Gary Melick dismissed the proceedings against Guess
and Shirel on the grounds that section llO(c) applies only to agents of
corporations and that Pyro was a partnership at the time of the violations.
14 FMSHRC 1826 (November 1992)(ALJ). For the following reasons, we affirm the
judge's decision.
I.

Factual and Procedural Background
Pyro was a general partnership comprised of two corporations, which
operated the William Station Mine, where Guess and Shirel were employed as the
mine's maintenance foreman and production manager, respectively. Stips. 1, 89 at Tr. 11-13; S. Br. at 13. In September and December 1991, the Secret~ry
filed petitions proposing assessment of civil penalties against Guess and
Shirel alleging they had knowingly authorized, ordered, or carried out Pyro's
violations of mandatory safety standards at the mine. The cases were
consolidated for proceedings before Judge Melick. Guess and Shirel filed
motions for summary decision, asserting that Pyro was not a corporation at the
time of the violations and that, accordingly, they were not subject to
liability under section llO(c).
Judge Melick granted respondents' motions for summary decision. He
noted that, although the Secretary had stated in the civil penalty proposals
that Guess and Shirel were acting as agents of a corporate operator at the
time of their allegedly violative conduct, the undisputed evidence showed that
Pyro was a partnership, not a corporation. 14 FMSHRC at 1827. The judge
concluded that section llO(c) of the Act unambiguously provides for individual
liability only against agents of corporations. 14 FMSHRG at 1828.
Accordingly, he dismissed the proceedings. 14 FMSHRC at 1827, 1828. The
Commission
the Secretary's petition for discretionary review of the
judge's dismissal.
II.

Disposition of Issues
The Secretary argues that the judge's literal interpretation of section
llO(c) of the Act thwarts the purpose of that provision and the Mine Act's
overall purpose of protecting miners. He contends that Congress enacted the
prov~s~on to reach individuals in large corporate operations, who would
otherwise be immune, in order to hold those individuals personally liable for
1

( ••• continued)

imprisonment that may be imposed upon a person under
subsections (a) and (d) of this section.
30 U.S.G. § 820(c). Section llO(c) was carried over without significant change
from section 109(c) of the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act").

2441

decisions resulting in violations of mandatory safety or health standards.
The Secretary argues that Pyro is a large operator and, because Pyro's
partners are corporations, no individual associated with Pyro is ultimately
responsible for the partnership's liabilities. In addition, the Secretary
contends that the judge's literal interpretation of the provision leads to the
anomalous result that an operator structured as a single corporation would
constitute a corporate operator within the meaning of section llO(c), while an
operator comprised of two corporations would not. In response, Guess and
Shire! maintain that the language of section llO(c) of the Act unambiguously
restricts individual liability to certain individuals associated with
corporate operators, and that the judge correctly dismissed the civil penalty
proceedings brought against them.
The first inquiry in statutory construction is "whether Congress has
directly spoken to the precise question at issue." Chevron U.S .A., Inc. v.
Natural Resources Defense Council. Inc., 467 U.S. 837, 842 (1984). If a
statute is clear and unambiguous, effect must be given to its language.
Chevron, 467 U.S. at 842-43. Deference to an agency's interpretation of the
statute may not be applied "to alter.the clearly expressed intent of
Congress." K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)(citations
omitted). Traditional tools of construction, including examination of a
statute's text and legislative history, may be employed to determine whether
"Congress had an intention on the precise question at issue," which must be
given effect. Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir.
1989)(citations omitted).
The examination to determine whether there is such
a clear Congressional intent is commonly referred to as a "Chevron I"
analysis. Id. 2
Section llO(c) of the Act provides that whenever "a corporate operator
violates a mandatory health or safety standard ... any director, officer, or
agent of such corporation who knowingly authorized, ordered, or carried out
such violation, ... shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under subsections (a) and (d)."
(Emphasis added.) The phrase "corporate operator" is followed by the phrase
"of
corporation" (emphasis added), and thus plainly refers to operators
that are corporations. Therefore, on its face, section llO(c) of the Mine Act
provides for individual liability only against agents of operators that are
corporations.
The legislative history of section llO(c) reveals no intention that the
section itself should apply to persons other than those associated with
corporate operators. Rather, by its terms, section llO(c) subjects specified
corporate employees to the "same civil penalties, fines, and imprisonment" to
which others are subjected under sections llO(a) and (d). (Emphasis added.)
The legislative history of section llO(c) of the Mine Act, and its
predecessor, section 109(c) of the Coal Act, manifests a Congressional intent
2

If a statute is ambiguous or silent on a point in question, a second
inquiry, a "Chevron II" analysis, is required to determine whether an agency
interpretation of the statute is a reasonable one. Coal Employment Project, 889
F. 2d at 1131.

2442

to proceed individually against persons employed by corporate operators "to
assure that the decision-makers responsible for illegal acts of corporate
operators would also be held personally liable for violations." Richardson v,
Secretary of Labor, 689 F.2d 632, 633 (6th Cir. 1982), aff'g, Kenny
Richardson, 3 FMSHRC 8 (January 1981), cert. denied, 461 U.S. 928
(1983)(emphasis added). See also H.R. Rep. No. 563, 9lst Cong., 1st Sess. 1112 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and
Public Welfare, 94th Congress, 1st Sess., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 1041-42 (1975). Section
llO(c) must be applied in accordance with its unambiguous language.
We reject the Secretary's contention that the judge's literal
interpretation of the provision thwarts its purpose and leads to an anomalous
result. Section llO(c) is one part of a broader provision of the Mine Act
that addresses the assessment of penalties against individuals and operators.
We note that in Kenny Richardson the Secretary argued that Congress's decision
to limit liability under section llO(c) to directors, officers and agents of
corporate operators had a rational basis. 3 FMSHRC at 26-27.
Accordingly, we hold that section llO(c) of the Mine Act provides for
individual liability of agents of corporate operators only. Because the
evidence is undisputed that Pyro was a partnership, and not a corporation, we
affirm the judge's decision dismissing the civil penalty proceedings against
Guess and Shirel.
III.
Conclusion

For the reasons discussed above, we affirm the judge's decision.

z,~

Arlene Holen, Cha1rman

.-0

/}

c£~~~-v/:1~~-~
·Richard V. Backley, CommiSSidher

, / /~·.
"---;·c·
//--:-(.(_.,.,_ _. .__ "-' c t_ ·~_ ,.,_, .·. ._
I

.

,

L. Clair Nelson, Commissioner

2443

Distribution
Colleen A. Geraghty,
Office of the Solicitor
U.S. Department of Labo~
4015 Wilson Blvd.
Arlington, VA 22203
Flem Gordon, Esq.
Gordon & Gordon, P.S.C.
P.O. Box 1305
Madisonville, KY 42431
Administrative Law Judge Gary Melick
Federal Mine Safety & Realth Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2444

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

December 16, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 92-783

UNITED STATES STEEL MINING
COMPANY, INC.
BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents two issues: whether United States Steel Mining Company, Inc. ("U.S.
Steel") violated a transportation safeguard issued under 30 C.F.R. § 75.1403 1
and whether that violation was of a significant and substantiol ("S&S")
nature. 2 Commission Administrative Law Judge William Fauver concluded that
U.S. ~teel violated the safeguard and that the violation was S&S. 15 FMSHRC
452 (March 1993)(ALJ). U.S. Steel filed a petition for discretionary review
with the Commission, challenging whether the safeguard was valid and whether
the judge erred in determining that the alleged violation was S&S. For the
reasons that follow, we affirm the judge's conclusion that U.S. Steel violated
t:he safeguard and remand the S&S issue for further consideration.
I.

Factual Background and Procedural History
On May 23, 1989, James Bowman, an inspector with the Department of
Labor's Mine Safety and Health Administration ("MSHA") conducted a regular
1

Section 75.1403, entitled "Other safeguards," provides:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and
materials shall be provided.

2

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.

§ 814(d)(l), which distinguishes as more serious in nature any violation that
"could significantly and substantially contribute to the cause and effect of a

... mine safety or health hazard."

2445

inspection of U.S. Steel's Gary No. 50 Mine in West Virginia. Inspector
Bowman observed that the trolley poles of two vehicles frequently disengaged
from the trolley wire as they traveled along the track entry. 15 FMSHRC at
452; Tr. 12-13. The disconnection caused the vehicles to de-energize. The
inspector determined that the problem was caused by "kinks, bends and twists
in the wire and by an excessive distance between the track and the trolley
wire." 15 FMSHRC at 452.
As a result, Bowman issued safeguard notice No. 3238838, which provided:
The trolley wire was inadequately installed in 6-B and
6-C sections in that the wire gauge 3 was much wider
than the track. Kinks, bends, and twists were present
in the trolley wire, causing the trolley pole to deenergize on numerous occasions. The wire gauge is so
wide that anti-pole swing devices can not be used at
several locations along the 6-B and 6-C track entries
by Jeep No. 97 and personnel carrier No. 33.
This is Notice to Provide Safeguard. All
trolley wire shall be installed within a gauge where
anti-swing 4 devices can be used on all equipment and
installed without excessive kinks, bends, and twists
that de-energize track equipment while traveling along
the track within reason.
15 FMSHRC at 454 (footnotes added); Ex. P-3.
On February 4, 1992, MSHA Inspector Earl Cook inspected the mine. The
trolley pole of the track-mounted jeep in which he traveled disengaged and
caused the jeep to lose power 15 times. Inspector Cook determined that the
causes of the trolley pole disconnections were kinks in the wire and a wide
gauge between the track and wire. He issued a citation to U.S. Steel for
violation of the safeguard. U.S. Steel contested the violation and proposed
penalty. A hearing was held on October 14, 1992.
The judge determined that the safeguard was valid because it was "based
on an evaluation of the specific conditions at the mine and the determination
that such conditions created a transportation hazard in need of correction."
15 FMSHRC at 455 citing Southern Ohio Coal Co., 14 FMSHRC 1, 13 (January
1992). The judge concluded that the safeguard provided U.S. Steel "with
3

Inspector Bowman testified that the gauge meant the horizontal distance
between the trolley wire and the rail. Tr. 27.
4

Anti-swing devices restrict the movement of trolley poles to prevent
injury to passengers. Tr. 26.
Inspector Bowman testified that, when such a
device is in place, "it allows the pole a certain range to work side-by-side to
stay on the trolley wire. If the trolley wire is outside a certain gauge, then
the anti-swinging device causes the trolley pole to come off the wire .... " Tr.
13.

2446

sufficient notice of the nature of the hazard"; disconnection of trolley poles
due to severe kinks in the wire and excessive distance between the wire and
the track. 15 FMSHRC at 455-56. The judge also concluded that the safeguard
specified "the conduct required of the operator to remedy such hazard":
installation of the trolley wire a proper distance from the track and without
kinks or twists. Id. The judge found that the cited conditions violated the
safeguard because the trolley pole disconnected at five locations where the
distance from the track to the trolley wire was too wide, and at ten other
locations where there were kinks. Id.
The judge applied a "substantial possibility" test of injury in reaching
his conclusion that the violation was S&S. He determined that an "[a]nalysis
of the statutory language and the Commission's decisions indicates that the
test of an S&S violation is a practical and realistic question whether the
violation presents a substantial possibility of resulting in injury or
disease .... " Id. (emphasis in original). The judge assessed a $690 penalty
for the violation. Id. at 457.
II.

Disposition
A.

Violation of the Safeguard

U.S. Steel argues that the safeguard was invalid because it failed to
provide fair notice of what was required or prohibited. U.S. Steel asserts
that the terms "excessive" and "within reason" were interpreted incorrectly by
the judge, and that a finding of violation under the safeguard would require
numerous occurrences of pole disconnection because of kinks and distance
between the trolley wire and the track. The Secretary contends that the
safeguard provided adequate notice to U.S. Steel to install trolley wire
within a certain distance of the trolley track and to correct kinks, bends or
·twists that cause the pole to separate from the wire.
The Commission has held that "a safeguard notice must identify with
specificity the nature of the hazard at which it is directed and the conduct
required of the operator to remedy such hazard." Southern Ohio Coal Co. , 7
FMSHRC 509, 512 (April 1985). The Commission has further stated that its
approach toward interpretation of the safeguard provisions of the Act
strikes an appropriate balance between the Secretary's authority to
require ... safeguards and the operator's right to notice of the conduct
required of him" and that "the safety of miners is best advanced by an
interpretative approach that ensures that the hazard of concern to the
inspector is fully understood by the operator, thereby enabling the operator
to secure prompt and complete abatement." Id.
The language of the safeguard provides that the hazard to be eliminated
is too great a distance between the track and the wire and the presence of
kinks, bends or twists that would cause the trolley pole to disengage. Thus,
the safeguard notice addressed the very hazard that was the subject of the
citation. It specifically identified trolley pole disengagement due to kinks
in the wire or to horizontal distance between the track and the wire. Those

2447

conditions served as the basis for the citation.
As the judge concluded, the language of the safeguard indicates that
"excessive" kinks distort the wire to a degree that would cause the trolley
pole to disengage during travel. The phrase "within reason" does not suggest,
as U.S. Steel asserts, that the safeguard is violated only when there are an
unreasonable number of disconnects of the trolley pole. We agree with the
judge that the phrase "within reason" refers to "traveling" and references
traveling at a reasonable speed. Moreover, the evidence establishes that the
trolley pole disconnected at ten locations because of kinks in the wire and at
five locations because of the distance between the track and the wire.
Fifteen disconnections during one trip would constitute a violation of the
safeguard, even under U.S. Steel's interpretation. Thus, we conclude that
U.S. Steel was given fair notice of what was required by the safeguard and
that the safeguard was violated by the cited conditions.
B.

Whether the Violation Was S&S

A violation is properly designated S&S "if, based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably
serious nature." 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
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; ... (2) a discrete safety hazard-- that is,
a measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will 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
Commission has held that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood 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)(emphasis in original).
Contrary to Commission precedent, the judge applied a "substantial
possibility" test to establish the third element of Mathies. 15 FMSHRC at
456. In Energy West Mining Co., 15 FMSHRC 1836, 1839 (September 1993), the
Commission held that "the ... substantial possibility analysis does not lend
itself to review under the third Mathies standard." Therefore, we conclude
that the judge erred by applying a substantial possibility test, and we remand
this case to the judge for proper application of the third Mathies element,
i.e., whether there was a reasonable likelihood that the hazard contributed to
would result in an injury.

2448

III.

Conclusion
For the foregoing reasons, we affirm the judge's ruling that U.S. Steel
violated the safeguard. We also vacate the judge's S&S determination and
remand for further analysis pursuant to the Mathies standard.

L. Clair Nelson, Commissioner

Distribution
Colleen A. Geraghty. Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Billy M. Tennant, Esq.
U.S. Steel Mining Company
600 Grant Street
Room 1580
Pittsburgh, PA 15219
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church~ Virginia 22041

2449

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

20006

December 17, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of DANNY SHEPHERD
v.

Docket No. KENT 94-69-D

SOVEREIGN MINING COMPANY

BEFORE:

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

BY THE COMMISSION:
On November 18, 1993, Administrative Law Judge Jerold Feldman concluded
that the discrimination complaint of Danny Shepherd was not frivolously
brought and, accordingly, ordered Shepherd's immediate.reinstatement.
On December 3, 1993, the Secretary filed with the Commission, a motion
to compel compliance with the judge's order of temporary reinstatement or,
alternatively, to remand the matter to the administrative law judge. In the
motion, the Secretary stated that the complainant was laid off by Sovereign
Mining Company ("Sovereign") on November 19, 1993, the day after the judge's
order was issued. The Secretary asserts that Shepherd should not have been
laid off and that, by its action, Sovereign was circumventing the temporary
reinstatement order.
On December 13, 1993, Sovereign filed a response to the Secretary's
motion, denying the assertions made by the Secretary regarding Shepherd's
layoff. Both Sovereign and the Secretary state that remanding this matter to
the judge would be an appropriate way to dispose of the issues raised in the
motion and the response.

2450

The judge's jurisdiction in this matter terminated with the issuance of
his order of temporary reinstatement on November 18. Commission Procedural
Rule 69(b), 58 Fed. Reg. 12171 (March 3, 1993), to be codified at 29 C.F.R.
§ 2700.69(b)(l993).
Accordingly, we remand this matter to Judge Feldman to
resolve the issues raised by Secretary's motion and Sovereign's response. See
Black Dragon Mining Company, 15 FMSHRC 2110, 2111 (October 1993).

Arlene Holen, Chairman

c~/)uL

Richard V. Backley, Commissioner\:/

/L
I

/

i

L. Clair Nelson, Commissioner ·
Distribution:
Forest E. Cook, Esq.
Cook Law Offices
118 Hays Street
P.O. Box 909
~Tiitesburg, KY
41858
Carl C. Charneski, Esq.
J.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Tony Oppegard, Esq.
Mine Safety Project of
the Appalachian Research
& Defense Fund of Kentucky, Inc.
630 Mexwelton Count
Lexington, KY 40508
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health
Review Commission
Office of the Administrative Law Judge
2 Skyline, lOth floor
5203 Leesburg Pike
Falls Church, VA 22041

2451

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

December 21, 1993

MARTINKA COAL COMPANY

v.

Docket Nos. WEVA 93-45-R
WEVA 93-46-R

SECRETARY OF LABOR
MINE SAFETY & HEALTH
ADMINISTRATION (MSHA)
BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et seq. (1988)("Mine Act" or "Act"),
presents the issue of whether two withdrawal orders were validly issued to
Martinka Coal Company ("Martinka") under section 104(b) of the Mine Act, 30
U.S.C. § 814(b). 1 Administrative Law Judge Avram Weisberger upheld the
withdrawal orders. 15 FMSHRC 99 (January 1993)(ALJ). The Commission granted
Martinka's petition for discretionary review, which challenged the judge's
findings. For the reasons that follow, we affirm the judge's decision.

1

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

2452

I.

Factual and Procedural Background
On October 21, 1992, Inspector Robert Blair of the Department of Labor's
Mine Safety and Health Administration ("MSHA") inspected the No. 4 Flyte Belt
Line ("belt line") at Martinka's Tygart River Mine. He observed accumulations
of coal and coal dust mixed with water under the belt line. He determined
that, in some places, belt rollers were running in dry coal accumulations. He
also observed haystack-shaped accumulations of loose coal under the belt. The
inspector determined that the violative conditions existed along the entire
5,200 foot length of the belt line. He issued a citation alleging a violation
of 30 C.F.R. § 75.400 for these accumulations. 2

Inspector Blair also observed that several belt rollers were stuck or
frozen, that bottom belt rollers were missing for a distance of about 100
feet, and that the belt was rubbing against the structure that supports its
rollers. Inspector Blair issued a citation alleging a violation of section
75.1725(a) for these conditions. 3
Daniel Conaway, the mine's safety manager, advised Inspector Blair that
it would take Martinka several days to abate the violations. The inspector
allowed Martinka five days, including a weekend, for abatement.
On Monday October 26, Inspector Blair returned to the mine and,
accompanied by John Metz, the mine manager, and David Kincell, the miners'
representative, inspected the belt line. The belt was operating and carrying
coal. Inspector Blair determined that some of the accumulations he had
observed on October 21 were still present along the belt. Specifically, he
found combustible materials under the belt tail piece and in several other
places under the belt line. Accordingly, he issued a section 104(b) order of
withdrawal.
Inspector Blair also determined that some of the other safety problems
he had cited on October 21 continued to exist. Specifically, he observed
frozen rollers at the tail piece, frozen or missing rollers at several other
places, and the belt rubbing against the supporting structure. As a
2

Section 75.400 provides:
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.

3

Section 75.1725(a) provides:
Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be
removed from service immediately.

2453

consequence, he issued a second section 104(b) order of withdrawal. Martinka
contested both section 104(b) orders, but did not contest the underlying
citations.
The judge upheld both orders. He concluded that the inspector acted
reasonably in not extending the period of time for abatement of the
violations. 15 FMSHRC at 101-02.
With respect to the order based on coal accumulations, the judge found
that the Secretary established a prima facie case that at least some of the
violative conditions described in the citation had not been totally abated by
October 26. 15 FMSHRC at 104-05. He further found that Martinka's evidence
had not rebutted the Secretary's evidence that the accumulations had not been
completely removed. 15 FMSHRC at 105-06.
With respect to the order regarding the belt rollers, the judge
determined that the Secretary established a prima facie case that some of the
cited rollers were still frozen or missing on October 26. 14 FMSHRC at 10607. He found that Martinka had not offered any specific evidence to rebut the
Secretary's evidence. 15 FMSHRC at 107. He determined that, while Martinka
may have replaced some of the frozen or missing rollers cited by the
inspector, it had not replaced or repaired all of them. Id.
II.
Disposition

On review, Martinka contends that the inspector should have extended the
abatement time because it had made diligent, good faith abatement efforts.
Martinka maintains that it devoted 40 man-shifts to abating the violations and
had applied 60 tons of rock dust. It contends that it totally abated the coal
accumulation violation and that all that remained on October 26 was
incombustible muck. It also contends that it totally abated the belt roller
violation, but that some of the violative conditions reoccurred on October 26.
Martinka argues that neither its conduct in response to the citations nor any
hazards justified the issuance of withdrawal orders. The Secretary contends
that substantial evidence supports the judge's finding that the violations had
not been totally abated at the time the orders were issued. He contends
further that the judge correctly determined that the inspector had acted
reasonably in not extending the abatement time.
In Mid-Continent Resources, Inc., 11 FMSHRG 505 (April 1989), the
Commission established the following analytical framework for the adjudication
of section 104(b) orders:
[W]hen the validity of a section 104(b) is challenged
by an operator, it is the Secretary, as proponent of
the order, who bears the burden of proving that the
violation described in the underlyin~ citation has not
been abated within the time period originally fixed or
as subsequently extended. We hold, therefore, that
the Secretary establishes a prima facie case that a
section 104(b) order is valid by proving by a

2454

preponderance of the evidence that the violation
described in the underlying section 104(a) citation
existed at the time the section 104(b) withdrawal
order was issued. The operator may rebut the prima
facie case by showing, for example, that the violative
condition described in the section 104(a) citation had
been abated within the time period fixed in the
citation, but had recurred.
Id. at 509 (emphasis in original).
A.

Abatement of § 75.400 violation

It is undisputed that Martinka attempted to clean up at least some of
the accumulations cited by the inspector. The judge, however, credited the
testimony of Blair and Kincell that not all the accumulations had been
removed.
Substantial evidence supports the judge's findings 4 . Both Blair and
Kincell testified that dry accumulations were present under the tail piece on
October 26. Inspector Blair testified that these accumulations had not been
deposited recently because they were dull in appearance. He also testified
that there were accumulations of hard packed coal dust on the belt structure
under the top center rollers. Finally, he testified that Martinka had
flattened out some of the accumulations and covered them with rock dust and
that some haystack accumulations remained. As noted by the judge, the
inspector's contemporaneous notes support his testimony.
Martinka argues that the high moisture content of the accumulations
rendered them incapable of combustion by any ignition source that was present.
The Commission has held that a "construction of the standard that excludes
loose coal that is wet or that allows accumulations of loose coal mixed with
noncombustible materials, defeats Congress' intent to remove fuel sources from
mines and permits potentially dangerous conditions to exist." Black Diamond
Coal Mining Co., 7 FMSHRC 1117, 1121 (August 1985). Inspector Blair testified
that the wet accumulations could dry out. Moreover, the judge found that the
accumulations observed by Blair and Kincell at the tail piece on October 26
were dry. 15 FMSHRC at 103-04. Thus, substantial evidence supports the
judge's finding that "at least some of the violative conditions described in
the 104(a) citation ... existed at the time the 104(b) order was issued." 15
FMSHRC at 105.
Martinka contends that its alleged failure to abate did not create a
safety hazard because air ventilating the belt is coursed directly into the
4

The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's factual determinations. 30 U.S.C. §
823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as
a reasonable mind might accept as adequate to support [the judge's]
conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
1989), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

2455

return airway, and not, as Inspector Blair testified, into the working
sections. It maintains that the degree of the hazard created by the failure
to abate should be the most important factor in determining whether the
abatement time should be extended. Martinka argues that the judge erred in
relying on Inspector Blair's testimony to find that a fire in the area could
send smoke into the working sections and trap miners working inby the fire.
15 FMSHRC at 102.
The record supports the judge's finding that combustible materials
created a fire hazard along the belt line, even if the hazard was not as great
as Inspector Blair believed. While the degree of the hazard is a relevant
factor, it is not the sole factor to be considered. Thus, the record supports
the judge's finding that Inspector Blair acted reasonably in determining that
the time for abatement should not be extended.
B.

Abatement of § 75.1725(a) violation

Martinka argues that it had abated the conditions observed by Inspector
Blair on October 21 and that any violations found on October 26 were the
result of a recurrence of the cited condition. Martinka points to Mine
Manager Metz's testimony that, when he personally inspected the belt line on
October 23, all rollers were in operating condition. Metz also testified that
many of the rollers that Inspector Blair thought were frozen on October 26
were, in fact, operational. He stated that these rollers were simply not
being turned by the moving belt at the time of the inspection.
Substantial evidence supports the judge's findings. The judge credited
the testimony of Blair and Kincell that some of the violative conditions cited
on October 21 continued to exist on October 26. 15 FMSHRC at 107-08.
Inspector Blair testified that, when he returned to the mine on October 26,
two rollers near the tail piece that had been frozen on October 21 were still
frozen. In addition, the inspector observed that many of the missing bottom
rollers were still missing on October 26. As a consequence, the belt was
still rubbing against the belt structure, although at a different place.
The judge determined that Metz's testimony concerning the replacement or
repair of rollers was too vague to rebut the testimony from Blair and Kincell
that some of the violative conditions continued to exist on October 26. Id.
He concluded that Martinka failed to demonstrate that the violative conditions
described in the section 104(a) citation had been abated within the required
time but had recurred.
Martinka argues that it had substantially abated the violation by
October 26 as a result of its diligent, good faith efforts and, thus, that the
inspector's failure to grant an extension was unreasonable. Martinka says
that it replaced 15 to 18 belt rollers after being cited, but was required to
replace only two additional rollers to terminate the withdrawal order. The
judge concluded that the presence of combustible accumulations and ignition
sources, such as frozen rollers and the belt rubbing against the belt
structure, created a hazard on October 26. 15 FMSHRC at 102. Substantial
evidence also supports the judge's finding that Inspector Blair acted
reasonably in determining that the abatement time should not be extended.

2456

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

Arlene Holen, Chairman

~~~~~~~~~~~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Thomas L. Clarke, Esq.
Martinka Coal Company
800 Laidley Tower
P.O. Box 1233
Charleston, WV 25324
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2457

/

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

20006

December 22, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 92-180

v.

HAROLD MITCHELL, Employed by
H B & B EQUIPMENT COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle, 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). On May 20, 1993, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to Harold
Mitchell, employed by H B & B Equipment Company, for failing to answer the
proposal for assessment of civil penalty filed by the Secretary of Labor or
the judge's February 24, 1993, Order to Show Cause. The judge assessed a
civil penalty of $2,000. For the reasons that follow, we vacate the default
order and remand this case for further proceedings.
In a letter to the judge dated May 26, 1993, counsel for Harold Mitchell
asserted that Mitchell had responded to the judge's show cause order in a
letter to the Commission dated March 18, 1993. Counsel attached a copy of
Mitchell's March 18 letter and, on th~ basis of that response, sought relief
from the default order.
The judge's jurisdiction over this case terminated when his decision was
issued on May 20, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg. 12171
(March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(1993). Due to
clerical oversight, the Commission did not act on the May 26 letter within the
required statutory period for considering requests for discretionary review.
The judge's decision became a final decision of the Commission 40 days after
its issuance. 30 U.S.C. § 823(d)(l).
Relief from a final Commission judgment or order on the basis of
inadvertence, mistake, surprise or excusable neglect is available to a party
under Fed. R. Civ. P. 60(b)(l). 29 C.F.R. § 2700.1(b)(Federal Rules of Civil
Procedure apply 11 so far as practicable 11 in the absence of applicable

2458

Commission rules). Lloyd Logging. Inc., 13 FMSHRC 781, 782 (May 1991). In
the interest of justice, we reopen this proceeding and deem the May 26 letter
to be a Petition for Discretionary Review, which we grant.
On the basis of the present record, we are unable to evaluate the merits
of Mitchell's position. We remand the matter to the judge, who shall
determine whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201,
1202 (June 1990).
For the reasons set forth above, we reopen this matter, vacate the
judge's default order and remand this matter for further proceedings.

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner
Distribution:
Edward H. Fitch, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Harold Mitchell
Route 2, Box 450B
Honaker, VA 24260
Dennis E. Jones; Esq.
One Flannagan Avenue
P.O. Box 1237
Lebanon, VA 24266
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health
Review Commission
1730 K Street, N.W., Suite 642
Washington, D.C. 20006

2459

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

December 22, 1993

VINCENT BRAITHWAITE
Docket No. WEVA 91-2050-D

v.

TRI-STAR MINING

BEFORE:

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

DECISION
BY THE COMMISSION:
This is a discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or
"Act"), brought by Vincent Braithwaite against Tri-Star Mining ("Tri-Star"),
pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 1
Administrative Law Judge William Fauver awarded damages to Braithwaite after
concluding that Tri-Star had unlawfully discharged him because he refused to
operate a piece of equipment that Braithwaite believed he was unqualified to
operate. 14 FMSHRC 1460 (August 1992)(ALJ); 14 FMSHRC 2001 (December 1992)
1

Section 105(c) provides, in pertinent part:
(1) No person shall discharge or in any manner discriminate against ...
any miner ... because such miner ... has filed or made a complaint under
or related to this Act, including a complaint notifying the operator ...
of an alleged danger or safety or health violation in a coal or other
mine

(3) Within 90 days of the receipt of a complaint ... the
Secretary shall notify, in writing, the miner ... of his
determination whether a violation has occurred. If the Secretary,
upon investigation, determines that the provisions of this
subsection have not been violated, the complainant shall have the
right, within 30 days of notice of the Secretary's determination,
to file an action in his own behalf before the Commission,
charging discrimination or interference in violation of paragraph
(1).

2460

(ALJ). The Commission granted Tri-Star's petition for discretionary review,
which challenged the legal and factual basis for the judge's determination of
liability and damages. For the reasons stated below, we reverse the judge's
decision and dismiss the complaint.

I.
Factual and Procedural Background
A.

Factual Background

Tri Star operates a surface mine employing 27 miners, approximately six
of whom are designated as heavy equipment operators. On July 24, 1989, TriStar hired Braithwaite as a heavy equipment operator. At that time,
Braithwaite initialed Form 5000-23 of the Department of Labor's Mine Safety
and Health Administration ("MSHA"), indicating that he was either qualified to
operate, or had been trained to operate, eight specified pieces of equipment.
Braithwaite's foreman, Ray Tighe, placed his initials beside Braithwaite's,
and Mine Superintendent George Beneer signed the form. At the time he
initialed the form, Braithwaite had limited experience in operating only two
pieces of equipment. One was a Cline coal haulage truck, which he
subsequently drove on a regular basis for Tri-Star, and the other was an FB 35
loader. 14 FMSHRC at 1460-61.
On September 25, 1990, Foreman Tighe asked Braithwaite to operate the
Euclid R-120 (the "R-120" or the "Uke"), a large 50-ton dump truck used for
hauling overburden. 14 FMSHRC at 1461. The R-120, larger than the Cline
truck Braithwaite regularly drove, was frequently operated on uneven ground
and rocked from side to side. Tri-Star had provided training on the R-120 to
Braithwaite, which consisted of his riding beside an experienced driver and
then driving the R-120 with the experienced driver beside him. 14 FMSHRC at
1462.
Following that training, Braithwaite had driven the R-120 in active
operations for three or four days. ld.; Tr. 27.
Braithwaite refused Tighe's September 25 order to drive the R-120,
stating that he was "uncomfortable" driving it. Tighe sent Braithwaite to the
mine office to talk to Mine Superintendent Beener. Braithwaite told Beener
that he was "uncomfortable" operating the R-120. While Braithwaite was in
Beener's office, Foreman Tighe requested a driver for the Cline truck and one
for the R-120. Beener sent Braithwaite back to the mine site to run the Cline
or, if it was not running, to assist the mechanic in working on it. 14 FMSHRC
at 1461, 1464. 2
When Braithwaite returned to the mine site, Tighe inquired as to what
had happened at the meeting with Beener. Braithwaite reported to Tighe that
Beener had told him, "[Y]ou do not have to run a Euclid, ... we will keep you
2 The

judge referred to Braithwaite's meeting with Mine Superintendent
Beener and Braithwaite's subsequent conversation with Tighe as occurring on
September 24, 1990. 14 FMSHRC at 1464. However, both events occurred after
Braithwaite's work refusal on September 25, apparently on the same day. See
Tr. 17-18, 122.

2461

on a Cline." Tr. 126. Tighe checked with Beener, who said he had told
Braithwaite, "[W]e would try and keep him on the Cline if he felt
uncomfortable with the Uke but there would be times that he would have to run
the Euclid." Tr. 124-25. Tighe did not tell Braithwaite about his
conversation with Beener. 14 FMSHRC at 1464. On two occasions after
September 25, Braithwaite was asked to operate the R-120 and he did so for a
total of two hours. Id. at 1462.
On September 27, 1990, two days after his conversation with Beener,
Braithwaite again initialed MSHA Form 5000-23, indicating that he was
qualified to operate or had been trained to operate eleven pieces of
equipment, including the Euclid R-120. Jt. Ex. 2. On April 2, 1991, Foreman
Tighe told Braithwaite to park the Cline and "to run the Uke because there was
no more coal to haul with the Cline." Tr. 69. Braithwaite responded that he
felt "uncomfortable" operating the R-120 and that he "had already talked to
Mr. Beener about it." Tr. 30. Braithwaite did not mention safety or request
additional training on the R-120. Tighe told Braithwaite to turn over the
maintenance records for the Cline and "hit the road." Tr. 29. Braithwaite
understood Tighe to mean that he was fired and left the mine without speaking
further to Tighe or Beener. 14 FMSHRC at 1463.
B.

Procedural Background

Following his discharge, Braithwaite obtained copies of his MSHA 5000-23
forms and complained to MSHA that the forms had been falsified. MSHA
conducted an investigation into these allegations, pursuant to section 103(g)
of the Mine Act, 30 U.S.C. § 814(g), but found no basis for them.
Subsequently, Braithwaite filed a discrimination complaint with MSHA, under
section l05(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). Following its
investigation, MSHA notified Braithwaite that it found no violation.
Braithwaite filed a complaint against Tri-Star on his own behalf, pursuant to
section 105(c)(3), 30 U.S.C. § 815(c)(3), and a hearing was held on April 29,
1992.
In his August 24, 1992, decision on liability, the judge concluded that
Tri Star discharged Braithwaite for refusing to operate the R-120, which he
believed he was not qualified to operate. The judge found that Braithwaite's
experience on the R-120 was limited. In his view, Braithwaite properly
communicated a safety concern when he told the foreman, on September 25, 1990,
that he did not feel comfortable operating the R-120 and when he told the mine
superintendent how he felt about operating the R-120. 14 FMSHRC at 1462,
1464.
The judge further found that, after speaking with Beener, Foreman Tighe
had an obligation to tell Braithwaite that Beener had said that Braithwaite
would be required to operate the R-120 or lose his job. 14 FMSHRC at 1464.
The judge concluded that, if the foreman had received such instructions, he
had a duty to address Braithwaite's safety concern and offer further training
on the R-120. According to the judge, Tighe, by remaining silent, left
Braithwaite in the position of believing he had been relieved by Beener of the
duty to operate the R-120.
at 1464 1465.

2462

The judge found that, when Braithwaite again refused to operate the R120 on April 2, 1991, Tighe did not properly address Braithwaite's safety
concern by correcting Braithwaite's belief that he had been relieved of
responsibility to drive the R-120. The judge found that, if Tighe had done
so, Braithwaite could have requested more training on the R-120 in order to
keep his job, and that such a request would itself have been a protected work
refusal in light of the limited training he had received. 14 FMSHRC at 1463,
1466.
On December 1, 1992, the judge issued his second decision, awarding
damages and also denying Tri-Star's motion for reconsideration, which was
based on the decision and evidence in Braithwaite's state unemployment
compensation proceeding. 14 FMSHRC 2001.

II.
Disposition of Issues
Tri-Star argues that certain of the judge's findings are contrary to
findings in the MSHA investigations of Braithwaite's section 103(g) and
discrimination complaints, including MSHA's conclusion that training had been
conducted properly. Tri-Star further argues that Braithwaite walked off the
job on April 2, did not communicate a valid safety complaint to Tighe, and
could not have communicated one, given his training and experience on the R120. Tri-Star also raises a number of issues concerning the judge's award of
damages. In response to Tri-Star's petition for review, Braithwaite submitted
a statement with attachments addressing several of Tri-Star's factual contentions.
The principles governing analysis of a discrimination case under the
Mine Act are well settled. A miner establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and
that the adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797-800 (October 1980), rev'd on other grounds, sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by
protected activity. Pasula, 2 FMSHRC at 2799-800. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the miner's unprotected
activity and would have taken the adverse action in any event for the
unprotected activity alone.
2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18; see also Eastern Assoc. Coal Corp. v. United Castle Coal Co., 813 F.2d
639, 642 (4th Cir. 1987).
A miner's refusal to perform work is protected under the Mine Act if it
is based upon a reasonable, good faith belief that the work involves a hazard.
Robinette, 3 FMSHRC at 808-12; Conatser v. Red Flame Coal Co., ll FMSHRC 12,
17 (Jan. 1989); see also Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. Cir.
1988). The Commission has held: "Proper communication of a perceived hazard
is an integral component of a protected work refusal, and responsibility for

2463

the communication of a belief in a hazard underlying a work refusal lies with
the miner." Conatser, 11 FMSHRC at 17, citing Dillard Smith v. Reco, Inc., 9
FMSHRC 992, 995-96 (June 1987). "[T]he communication requirement is intended
to avoid situations in which the operator at the time of a refusal is forced
to divine the miner's motivations for refusing work." Smith, 9 FMSHRC at 995.
The miner's failure to communicate his safety concern denies the operator an
opportunity to address the perceived danger and, if permitted, would have the
effect of requiring the Commission to presume that the operator would have
done nothing to address the miner's concern. Id. Thus, a failure to meet the
communication requirement may strip a work refusal of its protection under the
Act. Finally, the Commission has held that the "communication of a safety
concern 'must be evaluated not only in terms of the specific words used, but
also in terms of the circumstances within which the words are used .... 1 "
Conatser, 11 FMSHRC at 17, quoting Secretary on behalf of Hogan and Ventura v.
Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd mem., 829 F.2d 31
(3d Cir. 1987).
The key issue here is whether Braithwaite made an adequate safety
communication. The judge found that, on September 25, 1990, Braithwaite
communicated to Tri-Star a safety concern that was adequate, "indicating that
he did not feel properly trained or qualified to operate the R-120 truck
safely." 14 FMSHRC at 1464. However, the record reflects only that
Braithwaite was "uncomfortable" driving the R-120 and that he told Beener how
he "felt." Tr. 18, 121-23. Braithwaite's testimony as to what he actually
told Tighe and Beener on September 25 does not go beyond these statements.
Although Braithwaite explained at the hearing that he felt "uncomfortable"
running the R-120 because of its large size, that he "wasn't trained much on
it," and that he was concerned about the safety of other workers (Tr. 18, 12223), we discern nothing in the record to indicate that Tighe had reason to
know that Braithwaite's discomfort was more than a personal preference not to
operate the R-120 (see Tr. 18, 25, 33). Further, Braithwaite testified that
he never requested additional training on the R-120. Tr. 121. Thus,
Braithwaite's communication was inadequate to establish a protected work
refusal.
Further, after Braithwaite's refusal to drive the R-120 on September 25,
1990, Braithwaite drove it on two occasions. On September 27, he initialed
MSHA Form 5000-23, indicating that he was qualified to operate the R-120. 3
14 FMSHRC at 1462. Six months later, on April 2, 1991, when Foreman Tighe
asked Braithwaite to run the R-120 because there was no work for the Cline
truck, Braithwaite again responded that he was "uncomfortable" operating it
and refused to do so. Again, there is no evidence to indicate that Tighe had
3

The judge relied on an MSHA interview statement from the MSHA
investigator who assisted in investigating Braithwaite's discrimination
complaint to establish that Braithwaite could not have been properly trained
on the equipment listed on the form. 14 FMSHRC at 1462. The investigator's
statement, however, does not address Braithwaite's training on specific
equipment. MSHA's investigation concluded, moreover, that "training was done
properly" at Tri-Star and that Braithwaite was "properly trained in the
operation of the Euclid dump truck." Resp. Ex. 1, pp. 9, 10.

2464

reason to know that Braithwaite had a safety concern or that his discomfort
was anything more than a personal preference.
In Conatser, the Commission reviewed communication of a work refusal
factually similar to Braithwaite's. There, the Commission determined that a
miner's statement was, in context, ambiguous. 11 FMSHRC at 17. The fact that
the miner had driven the truck on seven prior occasions vitiated the adequacy
and clarity of the communication. Id. Here, the record is similarly lacking
in an unambiguous safety communication from Braithwaite on April 2.
Accordingly, we conclude that, as a matter of law, Braithwaite's statements
were insufficient communication of a safety concern to protect his refusal to
work.
In his decision, the judge shifted the communication burden from
Braithwaite to Tri-Star. The judge concluded that Foreman Tighe was obliged
to tell Braithwaite, who alleged Beener had relieved him of any duty to
operate the R-120, 4 that he would be required to operate the R-120 or lose
his job. 14 FMSHRC at 1464. As noted in Conatser, "responsibility for the
communication ... lies with the miner." 11 FMSHRC at 17. Nothing in the
record suggests that communicating safety concerns to Tighe would have been
futile. Compare Simpson v, FMSHRC, 842 F.2d 453, 459-61 (D.C. Cir. 1988).
We conclude that Braithwaite's work refusal did not include the required
safety communication and therefore, as a matter of law on this record, was
unprotected. 5 See Smith, 9 FMSHRC at 995-96.

4Braithwaite's

stated belief that he had been relieved of his
responsibility to operate the R-120 was not based on anything Beener said.
Tr. 18, 121-24, 129, 139. Braithwaite testified that, after he told
Beener how he felt, Beener "walked around, scratched his head ... shut the
door, a couple of minutes later he come [sic] out and said go to job six, run
[the] Cline." Tr. 123. Furthermore, as Braithwaite testified, no other heavy
equipment operator was excused from operating a particular piece of equipment.
Tr. 138-39.
5 Given

our disposition of this case based on the inadequacy of
Braithwaite's safety communication, we need not reach the reasonableness or
good faith of his belief that he was not adequately trained or qualified to
operate the R-120..
Dillard Smith v. Reco. Inc., 9 FMSHRC at 996 n.*. We
also need not reach Tri-Star's additional arguments, including issues relating
to the judge's award of damages.

2465

III.

Conclusion
For the foregoing reasons, the judge's decision is reversed, and his
orders are vacated.

Arlene Holen, Chairman

L.

Distribution:
Thomas G.
, Esq.
Eddy & Osterman
820 Grant Building
Pittsburgh, PA 15219
Vincent E. Braithwaite
53 West Harrison St.
Piedmont, h~ 26750
Administrative Law Judge William Fauver
and Health Review Commission
Federal Mine
5203 Leesburg Pike
Suite 1000
Falls Church, VA 22041

2466

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 93-69-M
A.C. No. 44-06731-05501

v.
Darden Pit
MATERIALS DELIVERY,
Respondent
DECISION
Appearances:

Javier I. Romanach, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia,
for Petitioner;
V. Cassel Adamson, Jr., Esq., Adamson & Adamson,
Richmond, Virginia, for Respondent.

Before:

Judge Amchan

This case is before me upon a petition for civil penalties
filed by the Secretary of Labor pursuant to § 105(d) of the
Federal Mine Safety and Health Act of 1977 1 30 U.S.C. § 801 et.
seg.v for seven alleged violations of mine safety standards.
This matter was heard in Emporia, Virginia on October 5, 1993.
After considering the record before me, I have assessed civil
penalties of $1,044 1 the same amount proposed by the Secretary.
NOTIFICATION OF COMMENCEMENT OF OPERATIONS
On January 20, 1993, MSHA Inspector Charles E. Rines
conducted a workplace inspection of a pit in Southampton County,
South of Franklinu Virginia, at which Respondent was extracting
sand and gravel for use in its concrete plants {Tr. 18-21).
Rines was on his way to a different site when he noticed the
activity at Respondent's Darden pit {Tr. 97-98).
From
conversations with State of Virginia inspectors he was aware that
mining activity was about to start at the site but did not know
that such activity had commenced until he drove by the site on
January 20 (Tr. 19).

2467

Rines determined that Respondent had not notified MSHA as to
commencement of their mining operations at the Darden pit
(Tr. 23-25). He, therefore, issued to Respondent Citation
No. 4083517 alleging a violation of 30 C.F.R. § 56.1000
(Tr. 21-25). This regulation requires that:
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 Safety and Health Subdistrict Office
before starting operations, of the approximate or
actual date mine operation will commence. The
notification shall include the mine name, mailing
address, person in charge, and whether operations
will be continuous or intermittent.
In writing the citation (Exh. P-2), Rines characterized
Respondent's negligence as "high" due to the fact that he had
issued a citation for violation of the same requirement to
Respondent on June 22, 1992, at a pit in King William County,
Virginia (Exh. P-2b, Tr. 29-37). In June 1992, Rines had
discussed the notification requirement with Pat Kenny, who was
Respondent's foreman at both the King William site and at the
Darden pit 1 his supervisor, Gene Sneed, and company president,
Richard Rose (Tr. 31-37).
THE FRONT-END LOADERS

While Rines was at the Darden pit, Respondent was removing
material with a dragline and was using two front-end loaders to
move the material to an area where it was separated into sand and
gravel and loaded onto trucks for delivery to its cement plants
(Tr. 20~21 " On one of the loaders, serial number 75A2808u
neither the horn nor the reverse signal alarm was working
(Tro 39, 79) o Rines spoke to operator of the loader, who told
him that both had been inoperative for 2 to 3 days
(Tr. 42
8 o) •
The wheels of this loader were approximately 6 feet high and
the operator 2 s vision was obstructed for a distance of 17 feet to
his rear (Tr. 44-45). Two employees of Respondent and two truck
drivers employed by a contractor were walking back and forth from
the pit on the same roadway used by the loaders
(Tr. 43) o Respondent did not use an observer to signal the
driver when it was safe to back up. 1
1

There is no direct evidence as to whether there was a
signalman or not. Nevertheless, I infer from the record that
there was no signalman. Mr. Rines' testimony as to the danger of
employees being run over when the loaders were operated in
reverse would make no sense if Respondent was using such an

2468

Inspector Rines issued Citation No. 4083518 alleging a
"significant and substantial" violation of 30 C.F.R.
§ 56.14132(a) for the use of the loader with an inoperative
reverse signal alarm (Tr. 36-39, Exh. P-3). That standard
requires that:
Manually-operated horns or other audible warning
devices provided on self-propelled mobile equipment
as a safety feature shall be maintained in functional
condition.
The inspector opined that an injury or fatality was
"reasonably likely" due to the presence of the blind spot to the
operator's rear, the presence of employees in the area of the
vehicle, and the ambient noise level at the pit, which he
believed would make it unlikely that employees would notice the
loader backing up (Tr. 48-50). He characterized Respondent's
negligence as "high" due to t:tle fact that it had been cited for
the identical violation on the same machine during his inspection
of Respondent's worksite in King William County in June 1992
(Exh. P-3a, Tr. 50-53).
Respondent also received Citation No. 4033522, alleging
another violation of 30 C.F.R. § 14132(a) on account of the
inoperative horn on the same vehicle, and Citation No. 4033521
because of an inoperative horn on the other front-end loader,
serial number 75A2786 (Tr. 68-82). With regard to the latter
vehicle, Rines was told that the horn had not been working for
approximately 2 weeks {Tr. 70-71).
Rines characterized these violations as "significant and
substantialfvu because he believed that an accident was reasonably
likely--given the proximity of employees to the vehicle and the
limited visibility of the operator to the front of the vehicle
(Tr. 71-72). He characterized Respondent's negligence as "high"
given the fact that the horns on both the loaders did not work,
and hadnqt been working for a while when he arrived on the site
(Tr. 76-83).
In assessing the degree of negligence, Mr. Rines
also considered the fact that Respondent 1 s foreman, Pat Kenny,
was also the supervisor on Respondentns worksite that he
inspected in June (Tr. 76).

Footnote 1 continued
observer. Moreover, Respondent has not contended that it used an
observer and clearly was relying on the reverse signal alarm to
warn employees who might venture behind the loader (Respondent's
Answers to Interrogatories, Answers 2, 4, and 8).

2469

UNSECURED COMPRESSED GAS CYLINDERS
During his inspection, Mr. Rines observed five compressed
gas cylinders lying on the ground (Tr. 55). Three were oxygen
cylinders; two were acetylene cylinders (Tr. 55). A barrel with
a fire inside was 5 to 7 feet from two of the cylinders and the
others were within 2 feet of a roadway traveled by the front end
loaders (Tr. 55). Two of the cylinders were later used to cut
metal (Tr. 113).
Four employees were observed in the area where the cylinders
were laying and Mr. Rines was concerned that the proximity of the
cylinders to the fire could cause an explosion and that they were
subject to damage by the front-end loaders and could become
projectiles (Tr. 56-59). The inspector issued Respondent
Citation No. 4083519, which alleged a "significant and
substantial" violation of 30 C.F.R. § 56.16005. That regulation
requires that, "Compressed and liquid gas cylinders shall be
secured in a safe manner. 11 Mr. Rines deemed Respondent's
negligence to be "high" as it had been issued a citation for the
same hazardous condition in June, 1992 (Exhibit P-4a, Tr. 60-61).
TOILETS
Inspector Rines also determined that no toilet facilities
were provided for the four employees at the mine site (Tr. 65).
He, therefore, issued Citation No. 4083520, which alleged a
violation of 30 C.F.R. § 56.20008. That regulation provides
that, "Toilet facilities shall be provided at locations that are
compatible with the mine operations and that are readily
accessible to mine personnel." A citation for the same violation
was issued to Respondent at the King William county site in June
1992 (Exhibit P-5a ~ Tr. 65-66).
TBE RAISED BUCKET
On January 21; 1993; Inspector Rines observed the operator
of one of Respondentus front-end loaders; leave his vehicle with
the bucket loaded and in a raised position (Tr. 83-86). The
operator walked behind the vehicle, which was on a 6 percent
gradev with its front-end higher than its rear, to talk to his
foremanu Pat Kennyv and superintendent Gene Sneed (Tr. 83-86,
116)
0

The inspector was concerned that the stress placed upon the
parking brake by the raised and loaded bucket could cause the
parking brake to fail, or that it could cause the rupture of
hydraulic hoses (Tr. 87-89). Rines issued Respondent Citation
No. 4083523 alleging a "significant and substantial" violation of
30 C.F.R. § 56.14206(b). That standard requires that:
When mobile equipment is unattended or not in use,

2470

dippers, buckets and scraper blades shall be lowered
to the ground. . .
ISSUES

At hearing, Respondent appeared to dispute the proposition
that it was engaged in interstate commerce, although it admitted
that it was subject to the Act in responding to the Secretary's
request for admissions.
In any event, it is clear that
Respondent's operations "affect commerce" and, thus, it is
covered by the Federal Mine Safety and Health Act.
Respondent uses vehicles manufactured in interstate commerce
and, therefore, its operations affect commerce on this basis
alone (Tr. 141). Island Construction co., Inc.,
11 FMSHRC 2448
(ALJ December 1989). Moreover, Respondent's pit, which is
located within 10 miles of the North carolina/Virginia state line
(Tr. 21), does compete with out-of-state sources of sand and
gravel, which Respondent might have to use if it did not operate
the Darden pit.
Its activities at the Darden pit thus "affect
commerce" on this basis as well. Marshall v. Bosack, 463 F. Supp.
800 (DC Pa 1978); Godwin v. OSHRC, 540 F.2d 1013 (9th Cir.,
197 6) .
The only witness presented by Respondent was John Boston,
its Financial Manager, who was not on the Darden site the day of
Mr. Rines' inspection and has no experience in mining other than
in its financial aspects (Tr. 131-136). Mr. Boston testified
that Respondent was unable to get a copy of Volume 30 of the Code
of Federal Regulations (CFR) for 10 months after its June 1992
MSHA inspection (Tr. 132).
I do not consider the unavailability of the CFR to be an
ameliorating factor in assessing the penalties in this case.
Respondent was cited for four of the seven violations found in
this case during the prior inspection in King William County.
Respondentv thusv had been specifically told of the requirement
for the reverse signal alarm, toilets, notification of MSHA, and
the securing of its gas cylinders. Respondent should have been
aware of the need to keep the horns on the front-end loaders in
operable condition from its conversations with Rines about the
back-up alarm in June, 1992. Additionally, it is only a matter
of common sense that, if a vehicle has a horn, it compromises
safety to some extent if it doesn't work.
As to the raised and loaded bucket, it appears that Rines
considered Respondent's previous lack of knowledge of the
regulation in rating its negligence as "moderate" as opposed to
"high" as he did for the violations for which Respondent had been
cited before (Tr. 90-91). Moreover, MSHA's Office of Assessments
also treated this violation differently in proposing a lower
penalty.

2471

Respondent also suggests that consideration be given to the
fact that Pat Kenny, its foreman at the Darden Pit and at the
King William county site, was fired subsequent to this inspection
(Tr. 134). However, it is unclear what role, if any, the MSHA
citations played in Mr. Kenny's discharge and, in any event, his
conduct is imputable to Respondent for penalty assessment
purposes Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981).
With regard to its front end loader 75A2808, Respondent
contends that Citations Nos. 4083518 (inoperative back-up alarm)
and 4083522 (inoperable horn) are duplicative (Tr. 135). The
standard states that manually-operated horns or other audible
warning devices provided as a safety feature shall be maintained
in functional condition. Respondent contends that the standard
should be read to require only that the horn or the back-up alarm
be functional not both.
I conclude that the literal meaning of
the standard is not necessarily that given to it by Respondent,
and I reject such a reading a,s being completely at odds with the
purposes of the Act.
An interpretation of the standard more in keeping with the
Act is that horns and/or other audible warning devices that are
on the vehicle must be maintained in functional condition. The
horn and the back-up alarm are designed to address different
hazards. The horn is provided primarily to warn employees who
the operator sees in front or to the side of the vehicle, and to
warn employees when the operator is going to move. The back-up
alarm is designed to account for the operator's restricted vision
to the rear, and operates automatically so as to warn employees
who the operator may not be able to see. The devices are not
duplicative and thus separate civil penalties are appropriately
assessed when both devices on one machine are not working. 2
Inspector Rines characterized the inoperable horns, back-up
alarm, the unsecured cylinders, and the raised bucket as
nsignificant and substantial" violations. The Commission has
held that to establish a "significant and substantial" violation
the Secretary must show~ (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard
contributed to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a
reasonably serious nature Mathies Coal Company, 6 FMSHRC 1
(January 1984). The determination of whether a violation is
"S&S" is not limited to conditions at the time the violation is
2

A penalty for an inoperable back-up alarm may be
inappropriate in situations in which the employer is providing an
observer to signal when it is safe to back up pursuant to
30 c.F.R. § 56.14132(b}, but that is not the situation presented
in the instant case.

2472

observed but includes consideration of continued normal mining
operations U. s. Steel Mining Co., Inc., 6 FMSHRC 1573
(July 1984).
There is no controversy regarding the first two elements of
the "S&S" criteria with regard to any of the five violations at
issue. Respondent's witnesses Boston takes issue with Mr. Rines'
opinion that it is reasonably likely that one would be killed if
struck by a front-end loader operating in soft sand. As
Mr. Rines has expertise, by virtue of his experience in mining
and the safety field in particular, I credit his opinion over
that of Mr. Boston and find that the Secretary has satisfied
criteria number 4 of the "S&S" test.
As to criteria number 3, I also credit Mr. Rines and
conclude that in the normal course of mining operations, if
front-end loaders operate without horns and orjback-up alarms; if
gas cylinders are not properly secured; and if operators leave
their loaders unattended with the bucket raised, it is reasonably
likely that each of these conditions will sooner or later cause
injury to a miner. Therefore, I conclude that all five citations
were properly cited as "significant and substantial" violations
of the Act.
ORDER

conclusions and Penalty Assessment

Section 110(i) of the Act requires the Commission to
consider six factors in assessing civil penalties; the operator's
history of previous violations, the appropriateness of such
penalty to the size of Respondent 0 s businessu the negligence of
the mine operatorp the effect of the penalties on the operator 9 s
ability to remain in business, the gravity of the violations and
the good faith of Respondent in attempting to achieve rapid
compliance with the Act.
Respondent has admitted that payment of the proposed penalty
not affect its ability to stay in business (Response to
Secretary 0 s Request for Admissions# 6). Certainly Respondent
qualifies as a small operator, as it extracts material for use
primari
in its cement operations. Respondent demonstrated good
faith in correcting the violations promptly after the January 20,
1993 inspection.
Nevertheless, the gravity of the violations and the
negligence of the Respondent, particularly with regard to those
violations for which it had been previously cited, warrants a
penalty in the range of that proposed by the Secretary. I,
therefore, assess the following penalties:

2473

Citation 4083517

$50

Citation 4083518

$204

citation 4083519

$204

Citation 4083520

$50

Citation 4083521

$204

Citation 4083522

$204

Citation 4083523

$128

Respondent is hereby directed to pay civil penalties in the
amount of $1,044 within 30 days of this decision.

~r~

Administrative Law Judge

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA
22203 (Certified Mail)
V. Cassel Adamsonu Jr., Esq. 1 Adamson & Adamson, Crozet House,
00 East Main
or Richmond 1 VA 23219-2168 (Certified Mail)
f

2474

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

DEC

81993
DISCRIMINATION PROCEEDING

UNITED STEELWORKERS OF
AMERICA on behalf of
RONALD SHANE BIRD,
Complainant

Docket No. WEST 92-596-DM
RM MD 92-06

v.

General Chemical Mine

GENERAL CHEMICAL COMPANY,
Respondent

.
..
DECISION

Appearances:

Harry Tuggle, Safety and Health Specialist, United
steelworkers of America, Pittsburgh, Pennsylvania,
for Complainant;
Matthew R. McNulty III, Esq., Bradley R. Cahoon,
Esq. 1 VANCOTT, BAGLEY, CORNWALL & McCARTHY, Salt
Lake Cityu Utahu
for Respondent.

Beforeg

Judge Lasher

This proceeding arises under Section 105(c) (3) of the Federal Mine Safety and Health Act of 1977u 30 u.s.c. § 801, et seq.
(1982) (herein nthe Act 9' ) . Complainant's initial complaint with
the Labor Department's Mine Safety and Health Administration
(MSHA) under Section 105(c) (2) of the Act was dismissed.
Complainant Bird contends that he was the subject of adverse
action in the form of reprimands and reassignments to different
crews after making a safety complaint on February 17, 1992, 1 in
the form of a .work refusal.
Although Complainant suffered no economic loss (T. 27), Complainant seeks a remedy in the form of expungement of records reflecting reprimands, including records of a "hearing" into the

Certain exhibits, specifically Exhibits c-1, c-2, and C-3, mistakenly
show this date as 2-18-92.

24 75

matter, together with an order requiring the Respondent to cease
and desist from reassigning complainant to different crews and an
order returning Complainant to work on a bore miner rather than
on a continuous miner (T. 26-29, 31, 32, 34).
Respondent concedes that.Complainant made a safety complaint
and that such was communicated to management. Respondent denies,
however, that the reprimands and reassignments of Complainant
were related to his safety complaint, contending that its actions
were justified since Complainant refused a direct order from his
supervisor, Foreman Danny Williams, and because Complainant Bird
is a frequent complainer, has a personality problem with Williams, was accused of racial and sexual harassment by another
employee, was a poor bore miner operator, and actually requested
one of the reassignments.
After review of the record, exhibits, and arguments and
briefs of the parties, the position of Respondent is found meritorious. Accordingly, its proposed findings and conclusions are,
as modified, adopted.
FINDINGS

on February 17, 1992, the 31-year old complainant was operating a bore miner 2 at Respondent's underground trona mine located near Green River, Wyoming (T. 34, 37-40; Ct. Ex. 1). A
member of United Steelworkers of America, Local 15320, Complainant has been employed at the mine for 14 years (T. 34-36).
On the day in question! Complainant Bird was working with D
crew consisting of himself and three other crew members:
Corey
Lovelessu mechanic; Tom Smith, FTC operator; and Doug Williamson,
roof-bolter operator (T. 41). His foreman was Daniel R. "Danny"
Williams.
Before commencing worku Williams held a safety meeting with
n1s crew concerning barring down and bolting procedures.
{T.
107-108u 256). Following the safety meeting, as is required by
MSHA regulation~ Williams entered the room the crew planned to
mine and noted that the right side of the room was cut six to
eight inches high. The left side of the room was cut "on seam"
(T. 257, 313-314). The bore miner operator working prior to
Williams' shift made this uneven cut. He had apparently failed
to keep his miner level (T. 257), and the seam was rolling to the
right {T. 314). Based on his 21 years of experience in underground mini~g, more mining experience than any of the other crew
members, Williams considered this cut to be safe and was making

2

He is also trained to operate a continuous miner (T. 37-38), and was
so employed at the time of hearing (T. 34).

2476

plans to insure the safety of his crew (T. 260, 265). Bird entered the room and drove the miner to the face.
Walking on the
right side of the room until they reached the face, Smith and
Williamson followed the miner (T. 258).
While Williams was setting up the cut at the end of the
room, Bird left his machine, and came back to talk to him and
brought to Williams' attention that the room was unsafe (T. 41,
53). Bird asked Williams if he had s~en the condition of the
room. Williams responded he had and that it was "cut a little
high." Williams and Bird then went together to look at the highcut area (T. 258). contrary to Bird's testimony (T. 52-53, 113114), the area was 100 feet from the front of the room and 65
feet back from the face (T. 258, 374). As previously noted, the
left side of the arch was cut on seam, but the right side of the
arch was cut six to eight inches high (T. 259, 374, 311, 329).
Williams instructed Bird to bardown a loose area on the right
side of the arch (T. 259, 374). Bird barred down a chunk six to
eight feet long and two feet square (T. 52, 289). Trona remained
in the curl on both sides at the area Bird barred down.
Contrary
to Mr. Bird's testimony, the cut was not made into the oil shale
(T. 329).
After Bird barred out the loose material, he walked to the
face, and Williams thought he was going to return to work. As
Williams walked back to the laser at the end of the room, Bird,
without further discussion or permission, began to back the miner
out of the room (T. 261). Williams went to the face and asked
Williamson what was happening. Williamson said, "I guess we are
moving out of here. uo Williams then walked up to B
and asked
him what he was doing. Bird saidf 11 This is unsafe; wePre backing
out of here." Williams said, "No, we're not." Bird then said,
"I want a safety steward." Without any hesitation or resistance,
Williams allowed Bird to leave the area to get a safety steward
(T. 262-263, 55). After Bird requested a safety steward, Williams
not order him to mine the face (T. 262)
After Bird left, Williams talked about the condition of the
room with the other crew members (T. 263). No other crew member
refused to work or asked to leave the room (T. 179). Crew members had in the past raised safety concerns with williams. He
and the crew were always able to work out these problems together
and continue mining (T. 260). Williams never required his crews
to mine areas that he considered to be unsafe and his crew had
"generally" trusted his judgment whether a room was safe to mine
(T. 261). This crew had encountered high cuts in the past (T.
259-260, 265) and had also encountered higher cuts than the one
present in the room (T. 260). When presented with high cuts
before, the crew would bar out the loose roof and then the roof
bolter would rebolt the area (T. 260-261) . They would use these
procedures to make the room safe and then continue mining (T.
260).
Based on his 21 years of mining experience and 15 years
2477

experience as a foreman, Williams believed they could bolt the
room that had been barred out and make it safe (T. 265).
Williams had the crew back up the miner so they could bolt
the area where Bird had barred out the loose material (T. 263264).
Williamson proceeded to back the miner about 25 to 30 feet
in front of the barred out area. The roof bolter that was located behind the miner was positioned below the area that had
been barred down by Bird. Williams expected that because Bird
had gone to get a safety steward a lot of people would be coming
into the room.
Williams testified that the room was safe to mine
but that in an abundance of caution the crew proceeded to bolt
the area that had been barred out by Bird (T. 265, 291).
The
crew had placed five bolts when the power went off on the miner
and the roof bolter (T. 139, 266). They could not continue to
bolt because, as they learned later, Bird had shut the power off
to their equipment (T. 189, 199, 266).
Bird claims that after he left the room he was unable to
locate a safety steward. He testified he attempted to reach a
safety steward by making several calls from the lunch room (T.
57).
Bird called KEITH MULLINS, D crew shift supervisor, and
asked him to look at the room (T. 61, 310) but Bird did not ask
him to get a safety steward (T. 310).
Bird testified on direct examination that he shut off the
power when he "first heard" the equipment "beginning to move" and
that he called Mullins after he shut off the power (T. 61). Subsequently~ he testified about having followed Mullins' instruction not to move anything after he turned off the power (T. 99101). Mullins testified he did not tell Bird to leave everything
where it was (T. 310-Jll)u as Bird claims.
Bird testified on direct examination that (apparently while
he was at the lunch room) he heard the alarm warning that the
miner and other equipment were moving. He testified 1 as above
notedu ·that he proceeded immediately when he first heard it beginning to move to turn the power off to the equipment (T. 61).
Bird admitted that the crew could have been backing up the equipment to rebolt the curl at the time he turned off the power.
Bird also testified that he did not look to see whether the crew
was backing up to rebolt. Without bothering to check, Bird apparently assumed that the crew was proceeding to mine and shut
off the power (T. 124-125). 3

3

The crew receives safety training during the annual MSHA refresher
training (T. 190). Respondent's mine safety supervisor reviewed the crew's
most recent refresher training forms. The safety supervisor testified that
the crew received their annual refresher training approximately two weeks
before the hear- hearing was held before this Court (T. 360).
In addition,
the crew received safety and workers' rights training during their new miner

2478

After the power went off, Williams proceeded to the lunch
room to determine why the power was off. Williams believed or
suspected that Bird had turned off the power. He found Bird and
asked him whether he (Bird} had turned off the power. Bird confirmed that he had. Williams then told him to turn on the power
(T. 266). Bird refused and threatened to put his lock on the
transformer (T. 267).
During this exchange, Bird did not claim that Mullins had
instructed him to turn off the power or leave everything where it
was. Williams then gave Bird a direct order, "Turn the power on;
don't put your lock on the miner." Bird again refused. Williams
said, "Shane, I'll tell you one more time, go turn the power on
and do not put your lockout on the miner or I'll take you out of
the mine." Bird again disobeyed Williams' direct order and
locked out the miner (T. 267-268). 4 Williams then informed Bird
he was taking him out of the mine (T. 268). In his 15 years of
supervisory experience, Williams had never had a worker disobey a
direct order. He had never been in a position where it was necessary to give a direct order to any other employee besides Bird
(T. 282). Although he could have, Williams did not attempt to
turn the power back on himself because he believed Bird had
turned the power off and the situation was "escalating too bad"
(T. 266).
Bird admitted upon examination by the Court that Williams
"just said turn the power back on, and I told him 'No.'" When
asked: "He didn't say go back and operate the machine?" Bird
admittedQ "No, no. 91 Significantly 1 Bird later testified that,
99
Wello he did tell me to turn the power back on and go back to
the minerun {T. 67 11 68). Williams testifiedu 11 I told Shane to go
up and get his water jug. I was taking him out of the mine"
(T. 268).
Mr. Bird alleges that Williams pushed him during their exchange in the lunch room (T. 130-131}. WilliamsQ howeveru testi-

training (T~ 361). The safety supervisor said there is a new miner training
plan in effect at General Chemical that is approved by MSHA (T. 359). The
plan has a specific section addressing workers' rights {T. 360). The training
related to safety concerns lasts one to two hours (T. 360).

4

A lock is a device that all miners carry to place on a transformer
to prevent power from energizing a machine. Bird placed his lock on the
trans- former, which was located away from the mining equipment. Anyone can
turn the power on and off at the transformer if it is not locked out. No one
besides Bird could remove Bird's lock once he placed in on the transformer (T.
300).

24 79

fied convincingly that he did not touch or push Mr. Bird at any
time during the incident (T. 268, 295, 300).
Following the incident at the lunch room, Williams called
Keith Mullins, his shift supervisor on D crew. Mullins is Williams1 immediate supervisor to whom Williams reports on a daily
basis. When Mullins arrived, he and Williams went to the room to
look at the roof conditions (T. 268-270, 311). Williams explained to Mullins how the crew had backed up to rebolt so they
could continue to mine. consistent with Williams' testimony,
Mullins testified that the crew had placed bolts in the barred
out area, trona was still in the curl in this area, and there was
no sign that the cut had entered oil shale in the area (T. 311,
329).
Mullins agreed that Williams 11 was doing the right thing"
by rebolting to continue mining the room (T. 269, 327) and felt
that the room did not look "bad" (T. 336).
After Mullins decided to have the crew continue mining, Bird
demanded a Union safety steward (T. 312). Contrary to Bird's
contention (T. 101), this was the first time he had made this
request to Mullins (T. 312). Mullins then left to get Bird a
safety steward. Bird admitted that on numerous occasions he had
called Mullins to intercede on his behalf because Bird "thought
he was fair" (T. 122). After Mullins came down and inspected the
area, he decided the crew could go back to work.
It was only
after Mullins' review of the situation did Bird demand Mullins
get a safety steward (T. 123).
RANDY To PITTS, General Chemical's production superintendent
over the bore panelsu arrived after Mullins had left (T. 269 0
:721o
Pitts
responsible for safety production costs 0 and
control of 1l:he bore areas (T. 372) . Pitts and Williams went to
the face and discussed the roof conditions {T. 270). Pitts
examined the roof conditions.
After Pitts came out of the roomu Bird came up to him and
claimed Williams had pushed him (T. 375). Pitts asked Williams
·to follow him outu so they could talk privately (T. 270g 376).
Pitts asked Williams if he had pushed Bird (T. 270). Williams
t:old Pitts he did not. Pitts again asked Williams whether he
had, 00 in fact 6 ua shoved Bird (T. 376). Again, Williams denied
pushing Bird (T. 270, 376). Pitts repeated his question about
Bird's allegations and explained to Williams the severity of the
allegationso Williams again denied pushing Bird and Pitts took
no action against Williams. Pitts confirmed Williams had made
the room safe for mining (T. 377).
Pitts then decided to separate Bird's safety concern issue
from Bird's insubordination in refusing to obey Williams' direct
orders (T. 377). Pitts testified, "Bird can be a very volatile
person, and I felt that the situation could very easily escalate
to something much more severe" (T. 377). Pitts believed that "by

2480

removing Mr. Bird from the situation it would diffuse that" (T.
378). Pitts did not want the safety issue confused with the insubordination issue since those issues were "completely separate"
(T. 379). Bird's insubordination was based solely on his refusal
to obey Williams' direct orders (T. 271-272).
Pitts instructed the crew to back up the equipment and make
a ventilation turn out of the·room (T. 271, 377). Removing Bird
from the mine and backing the miner up to make a ventilation turn
separated Bird's insubordination from Bird's raising a safety
concern (T. 271, 379)o Pitts also decided to make the ventilation turn because he had already decided to remove Bird from the
area and the crew would be short one person without Bird (T.
378). Three persons are needed to efficiently and safely mine
straight ahead (T. 378, 397-398). Making the ventilation turn
did not require bolting and it could be done with only two crew
members (T. 378).
Pitts told Bird that he was taking him out of the mine but
before this Pitts let Bird talk to the union safety steward,
ROBERT Wo TAYLOR, who had been brought to the area by Mullins (T.
210: 212-213 1 312: 379-380)o Taylor then proceeded to inspect
the conditions of the room.
TERRY w. ADCOCK, Respondent's mine safety supervisor, after
learning of the incident between Williams and Bird, asked GLEN
BIBER, a Union safety steward, to go with him into the bore panel
areao
They arrived after Bird had been taken out of the mine
(To 355-357)o Adcock and Siber discussed what had happened with
Williamson and Smith and examined the room togethero The crew
showed ·them t.he area Bird barred out and the bolts that had been
installed in that areao Adcock testified that he responded,
00
Wellu 'Chat 1 s a standard practiceo 01 A 01 safety issuen was brought
up on the roomu 01 but that was taken care of" according to Adcock
(To 367 1 368)o Adcock then stated that the crew told him that
the safety issue was resolved when they placed bolts in the area
of concerno Four or five bolts were placed in the area that had
been barred out by Bird and they were painted redo
Adcock testified that the roof on the left side was 01 [f] ine 16 and that it was
00
in good shapeo uu The curl had not fallen out on the left side.
Exhibit C-4 contains a dispute provision that

reads~

In the event that an employee challenges his job
assignment in the belief that it is eminently
hazardous, the assignment will be investigated by
supervision of company safety department representative and union representative. Thereafter, the case
will stand on its own merits and in such case no
employee will be disciplined until the foregoing
procedure has been followed.

2481

Bird claims that "in his mind" there was no investigation made
pursuant to this provision (T. 96). He admitted, however, that
an investigation could have been performed after he was taken out
of the mine (T. 72). Bird also conceded that the language of the
dispute provision did not require that he be present for the investigation (T. 98). He also conceded that nothing in the agreement required the foreman to get him a union steward (T. 101).
Prior to the time Bird was disciplined with a written warning, BOB TAYLOR and GLEN BIBER, both union representatives, investigated the conditions of the room. Also, before Bird was
disciplined, Mullins, Pitts, and Adcock, General Chemical's
safety department representatives (T. 136), investigated the
conditions of the room. Bird testified that when Pitts arrived,
he took his lock off because he believed the investigation was
beginning (T. 137).
Bird was sent home by Pitts but still received a full day's
pay for February 17, 1992 (T. 83, 380). Pitts clarified that the
act of removing Bird from "the mine was not disciplinary; it was
just to remove him from a volatile situation" (T. 380).
On February 18, 1992, the day after the incident, Respondent
held a disciplinary hearing pursuant to Article XIII, Section 2,
of the Labor Agreement between Respondent General Chemical and
the Union ("Union Agreement") which provides:
The administering of discipline will be done in conformi~y with established Company policy which shall
recognize generally accepted principle of industry,
due process, and
cause, and will include the
employee's right to a hearing and to Union representation unless the employee is specifically advised
otherwise {T. 342, 380).

At the hearing on February 18 Bird was given an opportunity
to tell
side of the events that occurred on February 17 (T.
141, 343u 358, 381-382). Bird was represented by Union officialso Birdus
low crew members also attended the hearing and
talked about the incident. Exhibit C-6 makes no reference to
moving Bird to another shift (T. 157).

Following the hearing, Respondent issued to Bird a Notice
and Record of Disciplinary Action (Ex. C-6), which provides:
On February 17, 1992, Shane Bird was insubordinate
wherein he refused to comply with a direct order given
him by his supervisor, Danny Williams. Mr. Bird was
given specific instructions by Williams to turn the
power back on at the transformer and not to lock out
the miner. Mr. Bird disregarded the instruction and
proceeded to put his lock on the miner despite Wil-

2482

liams' order. Insubordination is a serious violation
of the company rules of conduct and would normally
result in a lengthy suspension or termination. However, in consideration of mitigating circumstances
presented at the hearing, the Company chose to forego
these options and issue Mr. Bird a written reprimand
for his actions on this day. (T. 381).

Pitts and GERALD A. HASLAM, Respondent's Superintendent of
Human Resources, explained the meaning of the term "mitigating
circumstances" used in the Notice (T. 337-338, 382). The term
referred to the safety concern Bird had raised about the condition of the room. Haslam stated, "Insubordination is a very
serious infraction and can result in some very severe discipline"
(T. 340). However, because Bird had raised a safety issue,
Haslam explained that the company decided to confine that discipline to a written warning" (T. ·340). Prior to Bird's insubordination hearing, Respondent had terminated two other employees who
had refused direct orders {T. 352). No grievance was filed after
Bird received the written warning for insubordination (T. 420).
According to Pitts, the mitigating circumstances referred to
the Company's giving Bird the benefit of the doubt about the
safety issue he had raised to Williams (T. 382).
Respondent,
however, did not give Bird the benefit of the doubt about insubordination and Pitts testified that Bird "was clearly insubordinate" in disobeying his foreman's direct orders {T. 382-383).
Pitts telephoned Bird the evening of February 18 and told
him he was being moved from D to B crew (T. 402).
Pitts testified that he did not move Bird to B crew as a result of Bird's
raising the safety issue (T. 402-403). Rather, Pitts testified,
0
'The allegation of the shoving and stuff was the straw that broke
the camel's back . • . . I could not in good conscience put [Bird
and Williams]) back together after that accusation was made (T.
403) o Bird confirmed this (To 142u 157)o Bird told Pitts that
00
there was something that needed to be done about we his pushing
allegation (To 76)o Pitts was asked on cross-examination, "To
your knowledgeu are people usually moved for allegations?" Pitts
responded, 01 They"re moved when a whole series of events take
placeo
In any series of events there is a final event. That was
the final event. The series of events involving Bird started in
the years prior to the February 17 incident" (T. 404).
During his conversation with Pitts on the evening of February 18, Bird asked for a vacation. Respondent accommodated
Bird's request for vacation. Bird was allowed to take vacation
even though it was to be granted on a first-come, first-serve
basis. Bird's response to this treatment was, "I thought it was
pretty white of them" (T. 143-145).

2483

Pitts testified that Mr. Bird was a "poor operator" of the
borer and this, together with the insubordination and alleged
shoving incident, led to Bird's being moved from D crew to B
crew.
Prior to February 17 Pitts, on a "great many occasions,"
talked to Bird about the way he operated the bore miner, both
directly and through his foreman, Williams. These discussion
were about (1) cutting off seam, (2) leaving the miner's top bar
too low, and (3) leaving a step in the roof which created very
dangerous situations. Bird also had a habit of standing outside
the miner while he operated it. Pitts and Williams also talked
to Bird about this problem on numerous occasions (T. 383-385).
A few days before the February 17 incident, Pitts was walking
past the panel and the other crew members saw him coming and
flagged Bird so that he could jump back into the cab (T. 383).
During the six weeks prior to February 17, 1992, problems
arose with the way Bird operated the bore miner. Bird was aware
the panel belt the crew was using was old and worn (T. 272, 384).
Supervision talked to Bird and all of the bore miner "operators,
telling them that they had to slow down, run continually, but
slower, to prevent problems" (T. 109, 384). Bird often ran at a
rate that would overload the belt and the system would shut down
(T. 272). When the system started back up, the belt would break
(T. 110, 272).
If the miner is operated too fast, it creates
"hard wear and tear on the front end of the miner 11 (T. 384).
Bird conceded that if the miner is operated too fast it adds a
lot of weight to the belt causing it to break (T. 178). This
increases maintenance costs and significantly slows down produc(T. 384 .
During the six-week period prior to February 17 1
·there were
breakdowns 1 seven of which were the result
of Bird 1 s overloading the belts
• 275 9 384). Although the
belt was old 7 it could be operated at reasonable capacity
without breaking.
Several times Pitts and Williams instructed
Bird to slow down the miner (T. 275, 276). After these discussions, there would be v1 brief improvement for a few days . . . . But
after a few
Bird would slip back into the same problems"
1
(T. 276, 385). While Bird holds the record for one day 1 s producon the bore miner (T. 276) during 1991, Bird was in last
place for total production for the year (T. 276) and for the year
1992 after
leftu D crew placed first for production. Wiliams explained that the discrepancy between the years 1991 and
1992 for total production was because Bird 1 s replacement operates
the miner u'safely at a good speed 1 but not overload anything" (T.
277-278).
The other operators understood better than Bird how to
properly use the bore miner (T. 299). Bird is the only operator
that Williams supervised during his 15 years of experience who
has continually refused to change the way he operated a miner to
prevent breakdowns (T. 283).
Prior to the February 17 incident, Pitts' supervisor, RON
HUGHES, General Chemical's mine manager (T. 344) 1 demanded that
Pitts "identify and fix operational problems with the bore miner"

2484

(T. 386). Specifically, Hughes insisted that Pitts correct problems associated with the way Bird was operating the bore miner.
These problems were important factors in the decision to move
Bird to another crew after his insubordination (T. 387).
Bird had confrontations "a number of times 11 with the foreman
that preceded Williams, DON DARROUGH (T. 386). Pitts testified,
"Darrough continuously had problems with Shane. And we came to
the point of having to move Shane or move the foreman. And I
told Shane that was the case; and he almost begged to stay on the
machine and said that all the problems had to do with the foreman, and if he was given the opportunity to stay on the machine,
that he'd do a much better job.~~ Pitts moved Darrough to a different crew instead of Bird (T. 386).
Pitts indicated it was not possible to put Bird back as a
bore miner operator because Bird is "a poor operator." Pitts
denied that Bird was taken off the bore miner because he raised a
safety concern. Pitts testified "Like I said 1 he was a poor operator and it was hurting us" (T. 387).
Mr. Haslam testified that under Article II of the 1990 Labor
Agreement between General Chemical and the Union (Ex. R-3) General Chemical retains the authority to assign shifts and tasks to
personnel (T. 340). Bird agreed (T. 159). By asking to be put
back on D crew, Bird was asking for an exception to the Union
Agreement (T. 341).
Haslam had in t.he past been responsible for management
rights under the Labor Agreement. Haslam gave two examples where
Respondent moved a worker because of a conflict
his foreman.
Respondent also moved a male employee because of a conflict with
a female employee.
In these instances, the Union filed grievances against the changes (T. 350-351). Bird did not file a
grievance with the Union following his shift change from D crew
to B crew
. 340) ,
MICHAEL BENNETT 9 Respondentus Production Superintendent over
the continuous areau has responsibility for administering the absentee grievance procedure for the underground portion of the
mine (T. 407-408}. Respondent established business justifications for each shift move of Bird (T. 412). Bird was assigned to
a continuous miner on D crew after he bid the move in the spring
of 1990. Although Bennett did not attend the February 18 Disciplinary hearing, he was aware of Bird 1 s insubordination and pushing allegations (T. 413). Although Respondent tries to work out
disputes between hourly employees and supervision, the problems
between Bird and Williams were different (T. 413-414). Bennett
testified, "I think that there's a problem waiting to happen
there.
It's been my experience that once there is a problem like

2485

that, it's just a matter of time before it redevelops and worsens" (T. 429). Respondent moved Bird out of harm's way to protect both Bird and Williams (T. 429).
Bennett said that a previous bore miner operator, Mike
Robertson, requested to get back on a boring machine. Robertson
operated a continuous miner on B crew. The ••easiest move •••
causing the least disruption" was to switch Bird and Robertson
(T. 414).
so Bird was moved to B crew.
After the decision to move Bird to B crew, Bennett and
Haslam attended a meeting requested by Union representative TONY
TRUJILLO, which was called because of concerns raised by FRANCES
PAGE, a black female employee. On a previous occasion, Ms. Page
had accused Bird of sexual and racial harassment. When Page
learned that Bird was coming back on B crew, she expressed reservations about it (T. 416). B crew consists of approximately 40
production and 30 maintenance and utility employees (T. 416).
Respondent had no intention of putting Bird and Page together in
the same panel (T. 417). Trujillo acknowledged that the mine was
large and that Bird and Page would only see each other at the
start and at the end of the shift and he believed that Bird and
Page were adults and could work on the same crew without any
problem (T. 417). The union agreed and assented to the move of
Bird to B crew (T. 417) . 5 Bennett told Bird that Page had raised
concerns about his sexual and racial harassment of Page while he
had previously been on B crew. Bird was told that Respondent
expected him to perform his job and to leave Page alone (T. 417418).
Desp
the Union's assurance that Bird and Page were going
to act reasonably,
April 1992 9 Page filed a discrimination
complaint alleging that Bird had again sexually and racially harassed her. These allegations were in addition to the allegations
Page had made earlier in 1990. Page filed her complaint against
Respondent General Chemical because Wyoming law requires General
Chemical to provide Page with a workplace free
racial and sexual harassment
. 151-152 9 418-419). As a result of the allegations made by Page in her complaint, Bennett moved Bird from B to
c crew. This move was made to avoid potential liability of GeneChemical
• 422-423). In addition, Bird testified that he,
the Unionu and Page insisted that Bird be moved from B to C crew
(T. 85u 146). Bird was told that he would be fired if anything

5
William Korhonen, the union President, testified that neither in
his mind nor in the mind of the Union was an agreement reached moving Bird to
B crew.
However, the union did not object in writing and did not grieve the
move (T. 443-444).

2486

like Page's allegations arose again (T. 156).
that caused Bird to curse at Mr. Bennett. 6

It was this move

The Union attempted to show that Respondent had set Bird up
when they put him on B crew (T. 84). Bird testified that Respondent placed him on B crew so Page would file a racial and
sexual harassment complaint against Respondent because of Bird
(T. 178). However, Bird conceded he was not fired because of
Page's complaint (T. 178). Respondent could have fired Bird
based on the racial and sexual harassment allegations alone made
by Page against Bird (T. 431).
Instead, it moved him to C crew
(T. 428).
Bird moved to c crew in April 1992 and worked on c crew for
about six months until he filed a grievance to be placed full
time on a miner (T. 423). There are two bore and five continuous
miner operator positions on C crew (T. 423). The period April
through October is the heaviest vacation time at the mine {T.
423). Bennett testified that during this time the mine is "not
working much. Other times we are not filling all the continuous
miner positions." Bennett was breaking up crews during this
period, including Bird's (T. 423). Bird was operating a miner
during this time about four days each week. In his grievance,
Bird requested through the Union that he be assigned to a machine
that he could run full time. The Union knew that to grant Bird's
wishes Respondent would have to "do away with a continuous miner
job to create a position for Mr. Bird." This is exactly what
Bennett did (T. 424).
A miner position was available on A crew. The A crew miner
operator was on medical leave for about six weeks. Bird was told
00
that as a result of the changes that were taking place and the
grievance that was filed in his behalf," he was being moved to A
Bennett addressed the Notice of Disciplinary Action to Shane Bird
dated April 14, 1992 (Ex. C-7». Bennett testified that this was a written
warn- ing issued to Bird for an incident that occurred on April 10, 1992, and
that four Union safety representatives were present at the hearing (T. 409).
The April incident occurred when Bird came off shift, and Bennett sent
word that he wanted to speak with him about a shift move. Respondent decided
to move Bird from B crew to c crew as a result of Page's racial and sexual
harassment allegations against Bird. Bennett informed Bird of this decision.
Bird re- sponded that the Union told him he was going back to D crew. Bennett
told Bird "there was no way we would move him back to D crew because of the
incident with Mr. Williams, the pushing incident" (T. 411). Bird became irate
and upset, turned to walk away and said, "F • • • you. I need to see a Union
rep." Bennett called for a hearing immediately after this incident. As a
result of Mr. Bird's use of abusive language, Exhibit C-7 was issued (T. 410412). Neither Bird nor the Union grieved the April 10 disciplinary hearing
(T. 340, 412). Exhibit C-7 makes no reference to moving Bird to another
shift.

2487

crew to operate the miner. Bird was told that when the A crew
operator returned from medical leave, Bird would have the opportunity to choose either to return to C crew or stay with A Crew.
so as a result of Bird's grievance, he moved to A crew until the
operator returned from medical leave (T. 425}. After the operator returned from medical leave, Bird came to the Company "and
said, 'Yes, I want to go back to C crew'." As a result of Bird's
own request, in November 1992, the Company moved Bird back to C
crew. Bird could have chosen to stay on A crew, but he chose c
crew ( T • 4 2 5 ) •
Approximately five or six weeks prior to the hearing in this
matter, Bird came to management and said, "Look, I'm not running
the machine all the time on c crew. I would like to be on a
miner full time" (T. 426). He was advised that there was a miner
open on A crew. Bird said that if he could work with a certain
foreman, he would go to A crew. Respondent agreed to his request
and made this change for Bird (T. 426). Bird is presently operating a continuous miner on A crew (T. 91}.
BOB TAYLOR, the union safety steward, claimed he had never
heard of Respondentus moving around the 24 miner operators,
01
unless they go in and request it" (T. 216}. Taylor admitted
that none of the 23 miners had disobeyed direct orders like Bird
had (T. 218). None of the other 23 miner operators have a history of problems like Bird. None of the other 23 have been accused of sexual and racial harassment like Bird. None of the
other 23 operators are as controversial as Bird (T. 427).
In summary, Bird was on D crew because he bid on it originallyff Bird moved from D to B crew because of his unsatisfactory

job performance over a period of time and because of the alleged
shoving incident with Williams; Bird moved from B to C crew
because he was accused of sexually and racially harassing a black
female employee; Bird then moved from C to A crew because the
Union filed a grievance on Birdus behalf requesting that "he be
assigned a full time miner 00 ; Bird moved from A to C crew because
he requested it (To 427-428); and finally, Bird moved from C back
to A crew at his own request (To 428)o
Presently, Bird operates
a continuous miner at the same rate of pay he was receiving as a
bore miner operator on D crew (To 428)o He has received the same
rate of pay since the February 17u 1992u incident (T. 105)o
DISCUSSION AND CONCLUSIONS
In order to establish a prima facie case of mine safety discrimination under Section 105(c) of the 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

2488

complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786u 2797-2800 (October 1980), rev'd on other grounds sub nom.
consolidation coal co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981),
and Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-818 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner, it may nevertheless affirmatively defend by
proving that {1) it was also motivated by the miner's unprotected
actiyities, and (2} would have taken the adverse action in any
event for the unprotected activities aloneo The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982).
The ultimate burden of persuasion does not shift from the Complainant. Robinette, 3 FMSHRC-at 818 n. 20. See also Donovan v.
stafford Construction co., 732 F.2d 954, 958-959 (D.C. Cir. 1984
(specifically approving the 'Commission 1 s Pasula-Robinette test);
and Goff v. Youqhiogheny & Ohio Coal Company, 8 FMSHRC 1860
(December 1986).
The record is clear that Complainant Bird initially engaged
in an activity protected under the Act--complaining to his foreman Danny Williams that conditions in a room he was working in
were unsafe and initially refusing to work. 7 Complainant concedes that Williams advised him that he had previously seen the
area complained of and considered it safe (T. 54) and that
Williams directed him and the crew to continue the work (T. 55;
Complainant's Post-Hearing Briefu p. 3}.
It is concluded on the circumstances of this case that
8
S act of turning off the power to the miner when he did
not know the circumstances, and then later refusing a direct
order to turn the power back on was unreasonable and was not a
protected activity under the Act.

Mr.

It was established that Respondent took adverse action in
form of a written warning to Mr. Bird for failing to comply

7

For a work refusal to come within the protection of the Mine Act,
the miner must have a good faith, reasonable belief that the work in question
is hazardous. Robinette, supra, 3 FMSHRC 801-812.
If such belief is
reasonable, the mine operator has an obligation to address the danger
perceived by the miner. River Hurricane Coal Company, Inc., 5 FMSHRC 1529
(September 1983); Secretary of Labor v. Metric Constructors, Inc., 6 FMSHRC
226 (February 1984), aff'd sub nom Brock v. Metric, 766 F.2d 469 (11th Cir.
1985). A miner's continuing refusal to work may become unreasonable after an
operator has taken reasonable steps to dis- sipate fears or ensure the safety
of the challenged condition. See Ronny Boswell v. National Cement Company 14
FMSHRC 253 (February 1992).

2489

with an order from Williams to turn the power back on at the
transformer and to not lock out the miner (see Ex. C-6). Respondent also subsequently transferred Bird to different shifts.
The essential issues then are whether the warning and transfers were discriminatorily motivated or were justified. 8
The propriety of Respondent's issuance of a written warning
to Mr. Bird, after investigation of the room had taken place and
after a hearing the following day, is supported in the record.
The second written warning received by Bird for using abusive
language to a supervisor is irrelevant to this discrimination
claim and he failed to prove any nexus of such to his protected
activity.
As previously found, Mr. Bird suffered no adverse action as
a result of shift changes following his February 17 insubordination; he was moved to B crew to protect him from possible further
altercations with his foreman and because of the poor operating
performance. Respondent even accommodated his request for vacation with the change in shift. Bird was moved form B to c crew
to protect him from claims asserted by Frances Page. He was then
moved from c to A crew, A to C crew, and from C back to A at his
request. Respondent abolished an operator position to make room
for Bird and, as an accommodation, assigned him to work with a
foreman with whom Bird had requested to work.
Bird admits that at all times subsequent to his insubordination he has received the same rate of pay and has remained a
continuous miner operator. Bird offered no rebuttal evidence and,
thereforeu failed to carry his burden of proof to establish that
he has suffered anv unwarranted adverse action as a result of the
February incident.Complainant failed to establish that Respondent acted unreasonably, or in bad faith, in responding to and addressing his
safety concern. The United States Court of Appeals for the District of Columbia Circuit in Gilbert v. Federal Mine Safety and
Health Review Commission, 866 F.2d 1433 (.D.C. Cir. 1989), has
held that 91 When a miner expresses a reasonable 1 good faith fear
in a hazard, the operator has a corresponding obligation to
8

I have credited the version of the facts of Respondent's witnesses
based not only on demeanor, but on discrepancies of testimony including those
concerning whether the crew received safety training, the fact that the other
crew members did return to work when ordered to do so, the fact that
Complainant was accommodated in various requests by Respondent, indicating a
mild approach to discipline despite an apparently troublesome work history,
and since there is no substantial evidence of anti-safety animus .on the part
of Respondent in this record.

2490

address the perceived danger." Respondent did so here. After
Bird left the room and after talking to the crew, Williams had
the crew back up and rebolt the area. They could have completed
this task had Bird not shut down and locked out the equipment.
Safety supervisor TERRY ADCOCK, a federal and state certified
miner investigator, testified that Mr. Williams' attempted resolution was an accepted safety practice for dealing with high
cuts.
Further, Mullins, who Bird himself admitted was "fair,"
concluded Williams made or was attempting to make the room safe
to mineo In addition, Bird's fears, if any, were completely
satisfied when the decision was made to pull back and make a
ventilation turn. These actions fully demonstrate a good faith
and reasonable response to Bird's concern"
Respondent thus discharged its duty to respond to Bird's
reasonable belief that the work in auestion was hazardous.
Williams never ordered Bird to go back to the room and operate
the miner. Williams ordered him to perform solely unprotected
activities (turn on the power and not to lock out) .
In the circumstances here Williams was not required to explain to Bird that
the crew was making the room safe to mine. It is immaterial that
Williams never communicated to Bird that the crew was rebolting
when Bird turned the power off on them. As Respondent contends,
Mr. Bird confuses his role in the mine with that of management's.
Bird has failed to establish discriminatory motivation by a
preponderance of the evidence. There is no convincing evidence
that the adverse action of Respondent was motivated in any part
by Bird's limited protected activity.
Discriminatory
be proved by circumstantial indilcnowledge
protected activity; hostility towards protected activity; coincidence in time between the protected activity and the adverse actions; and disparate treatment
of the miner. Respondent responded to Bird's safety concerns and
even gave him the benefit
the doubt when it chose not to discipline him more severely when
was insubordinate. Bird has
not established by a preponderance
evidence any of the
circumstantial indicia of discriminatory intent.
including~

There is no persuasive evidence that Respondent displayed a
specific hostility toward Bird 1 s protected activityo Respondent
established convincing evidence to the contrary.
Williams and
the other supervisors recognized Bird 1 s safety concern and, contrary to Bird's assertion, did not attack or threaten him for
raising such concern. Without hesitation or resistance, Williams
allowed Bird to leave the room to find a safety steward. Respondent respected Bird's concern enough to pull back the miner
and make a ventilation turn. Respondent removed Bird from the
mine to protect him from further altercations, paid him for the
full day, and bypassed Company policy to grant him vacation so he
could make a reasonable transition to his new crew. Respondent

2491

has in the past discharged miners for less insubordination, but
chose to discipline Bird with a written warning because he had
raised a safety concern. He received a hearing concerning his
insubordination. His shift changes did not reflect hostility to
protected activity. On the contrary, each move was to protect
Bird from harm or to grant his personal request for reassignment.
Respondent abolished an operator position to accommodate Bird's
request for a move and, as a further accommodation, assigned Bird
to work with the foreman with whom Bird requested to work.
Complainant Bird presented no evidence that Respondent had
been, in general, hostile to his or others' protected activities.
Although Respondent bears the burden of establishing its
affirmative defense, "the ultimate burden of persuasion does not
shift from" Mr. Bird. Sammons v. Mine Services Co., 6 FMSHRC
1391 (June 1984).
Legitimate business justifications existed for removing Bird
from the mine apart from his protected activities. Respondent
established that it removed Bird to protect him, not to discipline him. Respondent moved Bird because he refused Williams'
direct orders and alleged Williams pushed him.
Because Bird had
a volatile reputation, Respondent believed in its business judgment that Bird should be removed to protect him from any further
altercations and to diffuse the situation. The situation could
have escalated to something more severe. Under the restrained
inquiry required by the Commission in Chacon v. Phelps Dodge
Corp. 1 3 FMSHRC 2508 (1981}, these justifications for removing
Bird from the mine are neither incredible nor implausible.
f
legitimate business justification existed for
issuing a written warning to Bird for his insubordination. A
business justification for issuing Bird a written warning was for
his turning off power to, and locking out, machinery and refusing
s foremanffs direct orders. Bird's insubordination clearly es~ablished Respondentvs affirmative defense for issuing this written warning.

As the Commission stated in Bradley v. Belva Coal Company, 4
01
FMSHRC 981u 991 (June 1982)~
0ur 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."
The record in this matter is convincing that Respondent was
motivated for the reasons and justifications it claims. Complainant's evidence was not found to be persuasive that his discipline was due to any alleged expression of safety concerns.
Consolidation Coal Co. v. Marshall, supra.

2492

CONCLUSIONS

Respondent's motivation in reprimanding and reassigning
complainant was for his unprotected activities and the decision
to take such adverse action was justified. This adverse action
was not wholly or in part discriminatorily motivated. Thus,
complainant has failed to establish a prima facie case of discrimination under Section 105(c) of the Mine Act.
Even assuming arguendo that it was established by a preponderance of the reliable, probative evidence that the adverse actions were motivated in part by protected activities, Respondent
established by a clear preponderance of such evidence that it was
also motivated by Complainant's unprotected activities and that
it would have taken the adverse actions in any event for such.
Gravely v. Ranger Fuel Corp., 6 FMSHRC 729 (1984).
ORDER

Complainant having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found to
lack merit and this proceeding is DISMISSED.

#~Ld,~ft-

Michael A. Lasher 1 Jr.
Administrative Law Judge

Distribution~

Mr. Harry Tuggle 1 Safety and Health Specialist 1 Health 1 Safety
and Environment Department; United Steelworkers of Americav Five
Gateway Center 1 Pittsburgh; PA 15222 (Certified Mail)
Matthew F. McNulty IIIu Esq.v Bradley R. Cahoon, Esq., VANCOTT,
BAGLEY, CORNWALL & McCARTHYv 50 South Main Street, Suite 1600,
P.O. Box 45340, Salt Lake Cityv Utah 84144
(Certified Mail)
Mr. Ronald Shane Bird, 114 South Main, Rock Springs, WY 82901
(Certified Mail)
ek

2493

PBDBRAL Kl:IIB SAFETY DD BBALTH RBVJ:D COJIMISSJ:OII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 81993
THOMAS P. GATES,
Complainant

DISCRIMINATION COMPLAINT

v.

Docket No. YORK 93-135-DM
NE-MD-93-06

GOUVERNEUR TALC COMPANY,
Respondent

#1 Mine
Mine ID: 30-00611
DECISION

Appearances:

Before:

Thomas P. Gates, pro se, Hailesboro, New York,
for Complainant;
James J. Dean, Esq., Putney, Twombly,
Hall & Hirson, New York, for Respondent.

Judge Feldman

This matter is before me for consideration based upon a
discrimination complaint filed by Thomas P. Gates against the
corporate respondent, Gouverneur Talc Company. Gates is bringing
this discrimination action in his own behalf pursuant to Section
105(c) (3) of the Federal Mine Safety and Health Act of 1977v
30 u.s.c. § 815(c) (3) (the Act). Gates initiated this action
after the Mine Safety and Health Administration (MSHA) conducted
an investigation and concluded that there was no section 105(c)
discrimination violation with respect to Gates' March 2, 1993,
employment discharge by the Gouverneur Talc Company.
This case was heard in Watertown, New York, on November 9,
1993. At the hearing Gates called Thomas Cogan and Kevin Hurley,
who are officials with Local 4979 of the United Steel Workers of
America. Gates also called Harold Boncolln, the respondents'
mine superintendent, and Gary Lutz, who was discharged with Gates
shortly after they had an altercation on February 10, 1993. The
respondent relied upon the testimony of Terry Jacobs, the
respondent's safety director, and Greg Holly and Gary Rust,
employees of the respondent who witnessed the altercation between
Gates and Lutz. At the culmination of the hearing, the parties
elected to make closing statements in lieu of filing posthearing
briefs. After considering the evidence of record and the closing
presentations, I issued a bench decision which is formalized
herein.

2494

The chronology of events are not in dispute and can be
briefly summarized. Gates' employment with the Gouverneur Talc
Company as a maintenance mechanic began in April 1984. As a
maintenance mechanic, Gates was responsible for all maintenance
with the exception of electrical and vehicle repair. Gates
served as a union safety man for approximately one year during
the period 1986 through 1988. Gates also served as a United
Steel Workers grievance committeeman for local 4979 for
approximately four years prior to his discharge on March 2, 1993.
As a union committeeman, Gates dealt primarily with contract
interpretation issues and was not actively involved in union
safety related issues or complaints.
Gates is not alleging that his activities as a union safety
man or as a union committeeman in any way contributed to his
March 2, 1993, termination. The termination occurred shortly
after Gates• February 10, 1993, altercation with Gary Lutz who
was also discharged for fighting. {Tr. 21-22). Rather, Gates
maintains that the discrimination complaint he filed with the
Mine Safety and Health Administration on April 8, 1993, after he
was permanently discharged on March 2, 1993, tainted his
August 5, 1993, arbitration hearing because the arbitrator heard
testimony concerning the fact that the complaint had been filed.
(Tr. 22}.
Gates' April 8, 1993, discrimination complaint primarily
alleges breaches of the union-management labor contract
concerning such matters as grievance procedures, eligibility to
vacation pay after discharge, and termination of hospital
insurance after discharge. The respondent provided testimony on
these issues. For example, Lutzv company health insurance was
terminated
Gates 1 health insurance because Lutz received
worker compensation benefits as a result of his injuries
sustained in the altercation with Gates.
respondent was
legally obligated to retain Lutz in its health insurance program
while Lutz was a worker compensation recipient.
The focal point
this case is
altercation between
Gates and Lutz which occurred on February 10, 1993. On that
morning Gates was repairing a cable from approximately 7:00 a.m.
until shortly after 8g00 a.m. The mine foreman requested Gates
to assist Lutz with repairing track after he finished the cable
repair work. Howeveru Gates decided that there was not enough
time to travel to Lutz 1 work area before the 9~00 a.m. break
period. Therefore, Gates decided to go to the lunchroom after
repairing the cable until the morning break was finished. Lutz
became annoyed when he learned that Gates was in the lunchroom.
Lutz and Gates argued in the lunchroom at which time Lutz accused
Gates of not showing up for work. Lutz also threatened to inform
management that he did not want to work with Gates anymore.

2495

After the break, Holly, Rust, Lutz, and Gates traversed the
tunnel to the work site. Lutz was unloading material from a
flatbed when Gates approached him and repeatedly called him a
"snitch" and "squealer." Lutz replied that he had "enough of
[Gates'] shit and [Lutz] started towards [Gates]." (Tr. 85).
An altercation then ensued, although Lutz has no recollection of
the events. According to witnesses Holly and Rust, Lutz went for
Gates and the two began pushing and shoving each other. Lutz
ultimately fell on his back in the mud across the track and
sustained cracked ribs. Lutz was subsequently admitted to the
hospital where he experienced heart stoppage which may have been
related to his traumatic chest injuries. Lutz required a
pacemaker, however, it is not clear whether the cardiac
condition was directly related to the injuries sustained at the
mine. (Tr. 83).
On February 16, 1993, the respondent served written notice
on Gates, pursuant to paragraph 77 of the union agreement, that
he was provisionally discharged for fighting with another
employee on February 10, 1993. (Res. Ex. 2). Gates contested
this action and hearings were held in accordance with the
requirement of the union contract. The evidence considered at
the hearings included information obtained from witnesses Holly
and Rust as well an interview with Lutz in the hospital. On
March 2, 1993, Gates' provisional discharge was converted to a
permanent discharge.
(Res. Ex. 18). A union grievance filed on
March 4, 1993, was denied by the respondent. This matter became
the subject of an arbitration proceeding. The arbitration
hearing was conducted on August 5, 1993. On September 10, 1993,
Arbitrator Mona Miller issued a decision wherein she denied the
union grievance and concluded that the respondent had discharged
Thomas Gates for just cause" (Res. Ex. 19a).
In order to prevail in a discrimination case, the
complainant must demonstrate that he participated in protected
activity and that there is some nexus between the protected
activity and the adverse action complained of. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 9
2797-2800 (October 1980)u rev~d on other grounds sub nom.,
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981) r Secretary on behalf of Robinette v. United Castle Coal
Co. 9 3 FMSHRC 803q 817-818 (April 1981)o Alleged adverse actions
associated with alleged violations of Gates 1 rights under the
union contract, such as issues pertaining to hospital insurance
and vacation pay 1 are beyond the scope of this proceeding. It is
clear that the only pertinent adverse action in this matter,
i.e., Gates• permanent discharge on March 2, 1993, could not have
been related to his subsequent discrimination complaint filed
with the Mine Safety and Health Administration on April 8, 1993.
Consequently, I issued the following bench decision, with nonsubstantive edits, dismissing Gates' discrimination complaint.

2496

In addressing the issues in this case, I wish to point
out that to prevail on a discrimination complaint under
Section 105(c) of the Mine Act, the complainant must
demonstrate that he or she has engaged in protected
activity, and that the adverse action, in this case
Gates' termination, was in some way motivated by the
protected activity.
Although Gates indicated that he was a union grievance
committeeman from 1989 through his termination on
March 2, 1993, and that he was a safety committeeman
for approximately one year during the period 1986
through 1988, he has conceded that he was not
discriminated against for these activities. Thus, his
termination was not in any way motivated by these
activities.
Moreover, it is important to note that Gary Lutz, who
was also terminated for his role in the altercation in
issue, was never a grievance or safety committeeman.
Therefore, the fact that Lutz, who had no history of
safety related or grievance committee activities, was
also terminated is further evidence that Gates was not
singled out for his prio:r safety or union related
activities.
The central issue in this proceeding is the
February 10 1993, altercation between Gates and Lutz.
I am confident that Gates is a sincere individual and
that he had no intention of contributing in any way to
Lutzv injuries. Howeveru when Gates made remarks about
Lutz being a ovsnitchff on he knew or should reasonably
have anticipated that such remarks could result
an
altercation. This was apparently the basis for his
termination by the respondent.
The thrust
Gatesn case
that his discrimination
complaint filed April 8v 1993, approximately one month
after his permanent discharge on March 2v 1993v somehow
tainted his August 5, 1993v arbitration hearing. I
find the record devoid of any evidence that the
arbitrator 1 s knowledge that Gates had filed a Mine
Safety and Health Administration discrimination
complaint influenced her arbitration decision.
Moreover, it was appropriate to reference Gates 1
discrimination complaint in the arbitration proceeding
as the complaint is relevant to Gates' state of mind
and whether Gates felt that the company's discharge was
motivated by his alleged past protected activities
under the Mine Act rather than his altercation with
Lutz.

2497

In reaching a conclusion in this case, I note that
deciding who was primarily at fault in the altercation
between Gates and Lutz is beyond the jurisdiction of
this court. My role is not to determine whether Gates,
Lutz or both were justly discharged. Rather, my
jurisdiction is limited to the issue of whether Gates
was discharged for any past activities which can be
construed as protected activities under the Mine Act.
In the current case, the only protected activity
alleged by Gates is the Mine Safety and Health
Administration complaint that he filed. As this
complaint was filed after his employment termination
had become permanent, I am unable to conclude that
Gates' discharge was in any way motivated by his
discrimination complaint or any other protected
activity. This decision has no bearing on any rights
or benefits Gates may claim under any other Federal
statute or as a result Of any alleged breach of union
contracte
In summary, my decision in this matter solely relates
to the discrimination issues within the parameters of
the Mine Safety and Health Act. As such, Gates'
discrimination complaint against the Gouverneur Talc
Company is dismissed.
(Tr. 159-163).
ORDER

Accordinglyu the discrimination complaint filed by
Thomas P. Gates against the Gouverneur Talc Company in Docket
No o YORK

3-135-DI"' IS HEREBY DISMISSEDo

~~$5----_____::,-·::::--:,

~·

Jerold Feldman
Administrative Law Judge

Distribution~

Mro Thomas Po Gates 1 PoOo Box 134
(Certified Mail)

Hailesborou NY 13645

James J. Dean, Esq., Putney, Twombly, Hail & Hirson, Bar
Building, 36 West 44th Street, New York, NY 10036
Ms. Dana Putman, General Manager, Gouverneur Talc Company, P.O.
Box 89, Gouverneur, NY 13642
/11

2498

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC

81993

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-666
A. C. No. 15-16318-03578
Mine No. 6

MANALAPAN MINING COMPANY,
INC. I
Respondent

Docket No. KENT 93-670
A. C. No. 15-05423-03731
Docket No. KENT 93-671
A. C. No. 15-05423-03735
Mine No. 1
Docket No. KENT 93-705
A. C. No. 15-16733-03543
Mine No. 7

DECISION APPROVING SETTLEMENT

Appearances:

Before~

Joseph B" Luckett, Esq., Office of the Solicitor,
U. s. Department of Labor, Nashville~ Tennessee,
for the Secretary;
Richard D. Cohelia, Safety Director, Manalapan,
Mining Company, Inc., Evarts, Kentucky, for
Respondent.

Judge Maurer

These cases are before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). An evidentiary hearing in
these matters was held on November 4, 1993, in London, Kentucky.
At the conclusion of that hearing, the parties filed a motion to
approve a settlement agreement and to dismiss these cases.

2499

The citations, initial assessments, and the proposed
settlement amounts are as follows:

CrTATrON[
ORDER NO.

PROPOSED
ASSESSMENT

PROPOS I~
SETTLEMINT

$

$

KENT 93-666
4239039
4239040
4239181
4239182

793
690
690
690

520
690
690
100

KENT 93-670
3000222
3000224
3164702
3146703
3164704
3164708
3164709
3164710
3164712
3164713
3164714
3164718

431
506
431
431
431
690
690
431
431
431
431
431

200
506
200
431
431
690
690
428
431
431
431
431

903
903
309
903

900
900
100
900

793

2173

500
1500

$14,612

$12,100

KENT 93-671
3164648
3164650
4239362
4239363
KENT 93-705
9885266
9885275
TOTAL

I have considered the representations and documentation
submitted in these cases, as well as the testimony contained in
the record of proceedings and I conclude that the proffered
settlement is appropriate under the criteria set forth in
section 110(i} of the Act.

2500

WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $12,100 within
30 days of this order.

Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor,
U. s. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Richard D. Cohelia, Safety Director, Manalapan Mining Company,
Inc., Rt. 1, Box 374, Evarts, KY 40828 (Certified Mail}
dcp

2501

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

20006

December 9, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
HERBERT COLLINS,
Complainant

v.
J & S COLLIERIES, INC.,
Respondent

...
.:

DISCRIMINATION PROCEEDING
Docket No. KENT 93-910-D
PIKE CD 93-06
No. 1 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

This case is before me pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977. The parties have
filed a joint motion to approve settlement of this matter which
states in relevant part:
1. Respondent J & S Collieries agrees to pay
Complainant Herbert Collins the sum of Five Thousand
Dollars ($5,000.00) upon entry of the Order Approving
the Settlement, said sum being in payment of all
claims, including wages, employee benefits and medical
expenses. Mr. Collins agrees to relinquish his rights
and claims to reinstatement andjor reemployment with
J & S collieries or any other company owned by
Clifton Street.
2. Complainant Collins' employment with J & S
Collieries was terminated on February 11, 1993 and he
thereafter obtained employment with an unrelated mining
operation. Mr. Collins was unemployed for approximately six weeks.
3. The personnel records maintained by J & S
Collieries shall be completely expunged of all information relating to the matters being litigated herein as
relates to Mr. Collins.
4.
In the event that J & S Collieries is contacted by a prospective employer of Mr. Collins at any
time in the future, J & S Collieries agrees not to give
Mr. Collins a negative or unfavorable reference regarding his job performance while employed by J & s Collieries. J & S Collieries agrees to state only Mr.
Collins job title(s) and dates of employment when
contacted by a prospective employer.

2502

5. J & S Collieries and all other companies with
the same ownership will not be required to offer employment and/or reinstatement to Mr. Collins at any
time in the future.
6.
In light of the difficulties and contingencies
necessarily attendant to the litigation of the subject
case, the complex factual disputes requiring many witnesses, and the fact that Mr. Collins shall be compensated for any economic loss he may have incurred by the
terms of this settlement, the parties and Mr. Collins
agree that the proposed settlement of this case is
appropriate under the circumstances.
7.
In consideration of the willingness of J & s
Collieries to resolve this claim by payment of the
above sum to Mr. Collins, the Secretary agrees that the
appropriate civil penalty shall be Two Hundred Dollars
($200.00).
8. Whereas Section 105(c) of the Mine Act
uniquely designed to benefit the public interest by
restitution to those affected by a violation, the
Secretary submits that such purposes are fulfilled in
this case by the proposed settlement terms.
9.
By entering into this Agreement, J & S Collieries,
agents, officers, employees and owners, do
not admit that J & S Collieries violated Section 105(c)
of the Act or any other provision of the Act.
10. The parties submit that approval of this
settlement
in the public interest and will further
the remedial purposes of the Mine Act"
11. This Settlement Agreement shall be binding
upon the parties hereto and Herbert Collins; and upon
each of the
respective successors.
Based on the foregoing and noting that both parties have
signed the settlement motion, I conclude that the proffered
settlement is appropriate under the provisions of the Mine Act.
Accordingly, the motion
GRANTED.

approval of settlement is

It is ORDERED that the operator PAY the complainant, Herbert
Collins, $5,000 immediately.

2503

It is further ORDERED that the operator PAY a civil penalty
of $200 to the Mine Safety and Health Administration within 30
days of the date of this decision.
It is further ORDERED that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gretchen M. Lucken, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Billy Shelton, Esq., Baird, Baird, Baird & Jones, PSC, 415 Second
Street, P. 0. Box 351, Pikeville, KY 41502
Mr. Herbert Collins, P. 0. Box 37, Shelbaine, KY

41562

Mr. Clifton Street, President, J & S Collieries, P. 0. Box 3544,
Pikeville, KY 41502
/gl

2504

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

DEC 161993
SLADE VANOVER,

:

DISCRIMINATION PROCEEDING

Complainant
v.

..
•
:

SHAMROCK COAL COMPANY,
Respondent

Docket No. KENT 93-359-D
BARB CD 93-06

DECISION
Appearances:

Phyllis L. Robinson, Esq., Hyden, Kentucky, for
the Complainant;
Timothy L. Wells, Esq., Neville Smith, Esq., Smith
& Wells, Manchester, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged
discrimination filed with the Commission on February 23, 1993,
by the complainant against the respondent pursuant to
section 105(c) (3) of the Federal Mine Safety and Health Act of
1977 r 30 UoSo Co § 815 (c) (3) o The complainant asserts that he was
last employed by the respondent as a Longwall Technician, and
that
the course of his employment he complained to his
supervisors about (1) excessive dust levels, (2) underground
detonations while men were working at the face, and (3) the
transportation of explosives on a mantripo The complainant
further asserts that he was constructively discharged andjor
forced
resign on July 20 0 1992, due to these safety complaints
being ignored by the respondent.
The complainant filed his initial complaint with the
Department of Labor, Mine Safety and Health Administration
(MSHA)v and after completion of an investigation of the
complaint, MSHA advised the complainant that the information
received during the investigation did not establish any violation
of section 105(c) of the Act. Thereafter, the complainant filed
a complaint with the Commission.
The respondent filed a timely answer to the complaint
denying any discrimination, and asserting that the complainant
voluntarily quit his job. A hearing was held in London,
Kentucky, and the parties filed posthearing briefs which I have
considered in the course of my adjudication of this matter.

2505

Issue
The principal issue in this case is whether or not the
complainant was constructively discharged by the respondent at
the time he left his employment because of the alleged failure by
the respondent to take any remedial action in response to his
safety complaints. 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 seg.

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} , and ( 2} and ( 3) .

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

complainant's Testimony and Evidence
The complainant Slade Vanover testified that he worked for
the respondent for twelve and one-half years. He started as a
roof bolter, and then worked as a continuous miner operator and a
longwall shield technician, beginning in April, 1991. He
received longwall training, knew how to perform that job, and he
was comfortable doing that job (Tr. 13-18}. He stated that when
he left his job he realized that he was leaving "one of the best
jobs in the area"u and that "I thought about that real hard"
(Tro 20)
In response to a question an to how long it took him
to make his decision, he responded as follows at (Tr. 20)~
Q

Ao

u when I took my vacation two weeks prior
to when I actually quit and I thought about
it all-- I guess I waited till the last
minute before I actually quit.

can you 'tell us why you left that job?
Ao

Because of conditions I was having to work in.

Mr. Vanover stated that he worked as a continuous miner
operator for five or six years before becoming a shield
technician, and that he made complaints about the dusty
conditions. .He stated that his complaints were taken care of
"most of the time" (Tr. 16, 21).
Mr. Vanover stated that he made his initial complaint about
the dust on the longwall in April, 1991, "the week or so we
started running coal" on the day shift (Tr. 21). He stated that
he complained to mine superintendent Ed Boylen, head maintenance

2506

foreman Jim Tye, longwall coordinator David Hensley, safety
director steve Shell, dust sampler Bill Sizemore, section
maintenance foreman Hetch Begley, and supervisor Denny Osborne.
He also complained to second shift supervisor Randy Turner and
second shift maintenance foreman Wade Blevins (Tr. 22-24).
Mr. Vanover stated that he worked for awhile on the second shift
and then transferred to the first shift. He complained about the
dust on both shifts (Tr. 24).
Mr. Vanover explained that the dusty conditions resulted
from·insufficient water to keep the dust down, and that "every
once in awhile the air was insufficient to blow the dust out"
(Tr. 24). In response to questions as to whether Mr. Boylen or
Mr. Tye addressed his complaints, Mr. Vanover stated "Nothing,
that I seen. They never took care of nothing, none of them
didn't do nothing" {Tr. 24-25). He further stated that
Mr. Blevins and Mr. Turner tried to control the dust by hanging
ventilation curtains, but that they could not correct the lack of
water because "they didn't have no help from the people that was
running it" (Tr. 25).
Mr. Vanover stated that the shear cutting drum water
pressure was supposed to be maintained at approximately 150 to
200 pounds on the sprays, but on one occasion when it was checked
the pressure and was only 40 pounds, and foreman Begly "told them
to go ahead and run anyway" {Tr. 26).
Mr. Vanover stated that air stream dust helmets were
supplied approximately six months after longwall coal production
started (Tr. 27). He confirmed that the helmets "helped
considerably for a whilenv but were later insufficient because of
the lack
daily filters (Tr. 28-29). Mr. Vanover stated that
low miners Darryl Brock, James Hacker, Larry Smith, and
Manford Roark also complained about the dust (Tr. 29).
Mr. Vanover stated that he also complained about working
excessive hours, and at times 3 he worked seven days a week on ten
and twelve hour shifts. He confirmed that the mine is nonunion,
and that he was paid overtime and had no complaints about the pay
(Tr. 30-31).

Mr. Vanover stated that on June 23 and 24, 1992, "shooting"
took place underground, and that this scared him. He was working
at the longwall face at that time and he "could feel the jar" of
the shot, saw the smoke and dust coming toward him and could
smell ammonia from the shot (Tr. 32). He stated that he
complained about this but that "they shot the next day, too"
(Tr. 33) •
Mr. Vanover stated that on June 23, 1992, explosives were
improperly handled while he was going out on a mantrip. He
stated that "I didn't really know that they were on there at the

2507

time, till they took them off the motor". He explained that he
observed Mark Griffy put a bag on the motor but he did not know
what was in the bag at the time. He stated that the mantrip was
going out with approximately 20 men in it and that "we just went
out and they took the powder off". He confirmed that Mr. Griffey
and other people told him that the explosives were on the mantrip
and that they were transferred to another mantrip. He believed
that explosives were required to be kept in self-containers and
should not be transported on a mantrip. He stated that this
incident scared him and that "I've dealt with powder before. It
definitely scared me when I found out about it".
(Tr. 34-35).
Mr. Vanover stated that he complained about the explosives to
Mr. Hensley and that Mr. Hensley said nothing about it and "just
kind of shrugged his shoulders" (Tr. 35).
Mr. Vanover stated that he complained about the dust from
the beginning of his work on the longwall section, and continued
his complaints during the ent-ire time that he worked there. He
stated that the conditions did not improve and that "at times,
they got worse" (Tr. 35). He stated that the longwall operated
with less than 90 percent of the sprays being operative, that
there were times when there was no water, and that the water was
not always turned on before mining began (Tr. 36).
Mr. Vanover stated that before taking his vacation in July,
1992, he and Mr. Smith specifically complained about the water to
Mr. Begley. Mr. Osborne stopped the shear and instructed
Mr. Begley to check the water. Mr. Begley found 40 pounds of
pressure on the drum and stated that he would fix it on the third
shift. Mr. Osborne was told "to go ahead and run anyway", and it
was not repaired the next day when he came to work. Mr. Vanover
that the longwall shear cut in both directions and that he
worked downwind of the shear and would be in more dust (Tr. 37).
Mr. Vanover stated that he took his vacation in order to
consider whether he wanted to continue working for the
respondent. He stated that he thought about "them shooting
underground and just the dust. Just fresh air was a big key".
These conditions scared him and he stated that "I figured either
me or somebody else was going to get killed up there" (Tr. 38).
He further stated that 11 It 1 s just the way they was running, the
way they was dong things. They was in a big hurry all the time
to do stuff and they didn't take time to see what they was doing"
(Tr. 39).
Mr. Vanover stated that he was afraid of a dust explosion,
that it affected his health, and that "this is one of the reasons
I quit when I did" (Tr. 39). He also had fears that miners would
not be evacuated quickly if they were injured because a mantrip
was seldom kept at the face area (Tr. 40). He confirmed that
Mr. Griffey, a close friend, was killed in an accident at the
longwall, but that this incident occurred approximately a month

2508

after he quit, and Mr. Vanover did not believe that it was the
result of any of the conditions that he complained about
(Tr. 41).
Mr. Vanover stated that he was afraid for his life at the
time he quit his job. He stated that he has often observed
sparks from the operating longwall shear and that he was
concerned about the poor ventilation (Tr. 42). In response to a
question as to whether any particular incident constituted the
"last straw" that prompted him to say "this is it", he responded
as follows at (Tr. 43-44):
A.

Well, just that day where they checked the
water and there was just forty pounds on it and
they said to go ahead and run it anyway. And
they give me and Larry a hard time over it.
They said we was just trying to be deadbeats.

Q.

Who gave you a hard time?

A.

Retch.

Q.

Can you remember his words?

A.

I can't remember his exact words.
said, "Go ahead and run it."

*

*

*

*

*

He just

*

*

Q.

Were you also afraid when the blasting was
going on?

A.

Yesu Mauam.
quit then.

Q.

While you were thinking about your decision,
did you consider whether or not the ventilation
might improve; the dust might be controlled?

A.

No~

Q.

How did you know that?

A.

I worked for them twelve and a half years.
never changed.

I knew

I was more afraid then -- I almost

wouldn 8 t be.

It

JUDGE KOUTRAS: You mean for twelve and a half years,
these conditions went on like this?
THE WITNESS: Well, the things like dust and stuff,
that was bad. They never did change.

2509

JUDGE KOUTRAS:
THE WITNESS:

In twelve and a half years?
Yeah.

Mr. Vanover stated that he threatened to quit to Mr. Begley
and Mr. Osborne if the dust conditions were not remedied, and
that "they made a joke of it" (Tr. 47). Mr. Vanover explained
that he told them that " I would probably take them to court over
it", but that he didn't know about which court because "I don't
know much about this". He also stated that it "was just kind of
a threat.
I was trying to get them to do something" (Tr. 48).
Mr. Vanover explained that on the day he quit he started to
go to work but instead went to the company office in Manchester
and spoke to a lady (Barbara) who was working in the office and
told her he was leaving his employment. Company Official Kenny
Smith called him later to come back to the office. Mr. Vanover
stated that he returned and told Mr. Smith that he quit "because
of the dust and they wouldn't work on the water and stuff"
(Tr. 49). Mr. Vanover identified a copy of a company
"Separation/exit interview" form which states that he was
leaving because of "working conditions too dusty at the face"
(Exhibit C-A) •
Mr. Vanover confirmed that he had previously refused to
perform unsafe work 5 or 6 years before he quit, but that he
never refused to do any work on the longwall (Tr. 52). He
believed that he had no choice at the time he quit his job, and
that "it was die or get out" (Tr. 53). He confirmed that he has
a pending black lung claim against the respondent (Rejected
Exhibit C-B~ Tro 55-56)
o

On cross-examination; Mro Vanover stated that it took two or
three months to set up the longwall after January, 1991, and that
large fans were installed. He stated that he requested his
vacation time three or four days before he took it (Tr. 63). He
confirmed that the respondent took some corrective action
concerning the problems on the continuous miner sectionu but he
did not believe it did enough (Tr. 64).

Mro Vanover stated that the longwall shields were in working
order and had enough water, but he indicated that they were
powered by different pumps (Tr. 65). He stated that the
respondent used 8 inch water lines to supply the mine with water.
He confirmed that the mine had fans large enough to provide the
required ventilation and had the equipment and means to control
the dust.
In his opinion, "they simply didn't get it done"
(Tr. 66).
Mr. Vanover stated that he transferred to the first shift in
approximately March , 1992. He confirmed that when he worked on
the second shift he made dust complaints to foreman Turner and

2510

that Mr. Turner "Tried to do what he could with them" (Tr. 67).
He recalled that there were occasions when the longwall was shut
down and production was stopped to repair the air and water on
the second shift (Tr. 67-68).
Mr. Vanover stated that when Mr. Begley checked the water
and found 40 pounds of pressure, production was stopped and
Mr. Osborne did address his complaint that day (Tr. 69).
Mr. Vanover also confirmed that there were several other
occasions when Mr. Osborne and Mr. Turner stopped production at
his request to address the lack of water (Tr. 70). He also
confirmed that shear operators James Hacker and Bill Wilson shut
the shear down due to a lack of water, and he was not aware that
Mr. Hacker was ever disciplined for shutting down the shear
(Tr. 71).
Mr. Vanover stated that when he moved to the first shift, he
worked fewer hours than he did while on the second shift
(Tr. 73). He confirmed that he bid for the longwall job and
was informed that he would be required to work extra hours when
the longwall was being moved or if there were any problems
(Tr. 74-75). He further confirmed that the longwall was moved
periodically and that more coal was produced on the second shift
than on the first shift, and that the people on the second shift
"made an attempt to treat you better 11 than on the first shift
(Tr. 78) •
Mr. Vanover confirmed that when he gave his deposition he
stated that "Randy Turner and them, they was pretty good about,
you know, trying to keep you out of the dust and stuff" (Tr. 80).
Mr. Vanover confirmed that air stream helmets were furnished to
him on both the first and second shifts, but he indicated that
helmet motor wouldnut work during the last few weeks of his
employment (Tr. 81-82). He also confirmed that he started
complaining about the availability of helmet filters and was not
provided more than one filter "right at first" (Tr. 83).
Mr. Vanover stated that he was never told not to work
downwind of the shear, but that Mr. Hensleyu Mr. Boylen, and
Mr. Sizemore told him not to work downwind when an inspector was
on the section (Tr. 86). Mr. Vanover further stated that his job
required him to be downwind at times, and that "sometimes it was
a routine thing, sometimes
wasn't 91 {Tr. 86). When asked if he
were there by his own choice as a matter of routine, he replied "
I guess I was" (Tr. 86).
Mr. Vanover stated that when his work required him to be
downwind of the shear he would ask the first shift shear
operator, who he called "wolfman", to stop the shear for a few
minutes, but he wouldn't and kept cutting (Tr. 87). Mr. Vanover
could not recall ever asking Mr. Osborne or Mr. Turner to stop
production while he was downwind of the shear (Tr. 87). He

2511

confirmed that the respondent's ventilation plan specified that
no one be downwind of the shear, but stated that "it was expected
of us" (Tr. 87-88). He further confirmed that there were times
when he stayed downwind of the shear at the tailgate while the
shear proceeded to the headgate to cut coal, to straighten the
tail, or push the pan line out (Tr. 88-89).
Mr. Vanover stated that he knew that staying downwind of the
shear was contrary to the ventilation plan, and he confirmed that
no one ever told him to stay there (Tr. 90). He also confirmed
that on one occasion Mr. Begley told him that "you ain't supposed
to be back down there anyway", and that he made this statement
when he (Vanover) complained about the dust and the lack of water
(Tr. 90) •
With regard to his complaint about shooting underground,
Mr. Vanover stated that he complained to Mr. Hensley the morning
after the first shot, but he could not state if his complaint on
the second day was before the ·second shot was made. He confirmed
that in his prior March 1993 deposition he stated that he
complained after the second day, but that he could not now
remember his deposition statement but "guessed" that "it's close
to correct" (Tr. 94).
Mr. Vanover stated that "he kind of complained" to
Mr. Hensley about the shots, and he explained that "I just told
him I didn't like it" (Tr. 95). He reiterated that he could not
remember whether he complained before or after the second shot
was fired {Tr. 96).

Mr. Vanover explained why he believed the shots were
dangerous v and he s·tated that he was concerned about an explosion
and the dust: (Tr ·s7-98) •
He confirmed that in his deposition he
sta·ted. that he \,"'las not concerned about a roof fall and that his
biggest concern was the dust generated by the shots (Tr. 99-100).
He believed that 11 the way they shot them" was a violation of
uosomethingn but he could not state with any certainty if it was
illegal (Tro lOl)c He could not recall if any further shots were
::ired subsequent to 'che ·two in question (Tr 102}
o

o

o

With regard to his complaint concerning the transportation
of explosives in a mantripv Mr. Vanover stated as follows

(Tr. 102=103) ~
Q.

All you really saw wa a yellow bag on the man

trip. Is that correct?
A.

Yes, that is correct.

Q.

And you don't know of your own personal
knowledge what was in the bag.

2512

A.

Well, I don't know whether it was the same bag
or not, but prior to that evening, I seen the
explosive in the bag.

Q.

You don't really know if anything at all was in
the bag, do you?

A.

No.

Mr. Vanover confirmed that after he quit his job he met with
Mr. Smith and Mr. Bauer at "Pete's Minimart" in Leslie County at
their request and Mr. Bauer asked him why he had quit.
Mr. Vanover stated that he explained his concerns, but he denied
that Mr. Bauer offered to have a safety inspector return to the
mine with him and to stay on the longwall section with him to
determine if there were any problems. Mr. Vanover also denied
that Mr. Bauer offered to go himself or to ask Lynberg Rice to go
with him {Tr. 105-106). Mr. Vanover further stated as follows at
(Tr. 106-107}~
Q.

What did he say when you made these complaints
and told him why you quit?

A.

He just said -- I don't remember exactly what
he did say. He just said, "If we go back in
there, and try to change things, will you come
back?" And I told him things wouldn't change;
they would be just like they was when I
started.
Did you understand him to mean that he would go
back 1:'Ji th you and try t.o help you change

A.

Nou sir, I didn't take it that way.

Qo

In any eventv he asked you if you would return to
your employment if your concerns were addressed.

Ao

That would be a fair statemento

Q.

What about Mro Smith?
underground with you?

Q.

Did he offer to speak to anybody at Shamrock on
your behalf?

A.

I don't recall it.

Did he offer to go

2513

Q.

Did you tell Mrs Bauer and Mr. Smith under what
circumstances you would return to Shamrock?

A.

No, I don't believe so.

Q.

Did you tell them that you were intending to
enroll in college?

A.

Yes, sir.
college.

Q.

Did you tell them you were done with coal mining?

A.

I told them I was done with Shamrock.

I told them I thought about going to

on redirect examination, Mr. Vanover stated that during his
employment at the mine he did not believe that there was adequate
ventilation to control the dust. He stated that the ventilation
plan required 34, ooo feet of ·~:dr and that for the year and one
half that he worked on the longwall, he believed that the air was
adequate for only a one-month period {Tr. 114-117). Mr. Vanover
confirmed that he was not aware of any violations that were
issued for inadequate airu but the mine was shut down by the
inspectors, and he did not know how many times this occurred
(Tr. 118) .
Mr. Vanover stated that he complained about inadequate air
at the face, but that he never specifically mentioned the
34,000 foot plan requirement and never requested an air reading
(Tr. 119-120). He confirmed that he has observed foreman take
readings,,
no\.J know
~they were taken each time he
complained
Mr Vanover had no ~{now ledge as to whether anyone ever
refused to work downwind of the shear, and he confirmed that he
did not (Tr. 123). He also confirmed that he was not warned
about the blasting that occurred on his shift (Tr. 123).
Mr. Vanover
ieved that: he met ~rJi th Mr Smith and Mr. Bauer
before he filed
MSHA complaint
·this matter (Tr. 124).
o

o

In response
further questionsu Mr. Vanover confirmed that
the incident concerning the alleged transportation of explosives
the mantrip occurred only one timeu and that the underground
blasting incident was the only
that had occurred on his
shift (Trc 130). He confirmed that he could not remember how he
communicated his complaint concerning the transportation of
explosives because "Larry (Smith) was already talking about it.
What I complained about was them shooting underground" (Tr. 131).
With regard to the detonations underground, he stated that "I
knew they shot after I told him 11 (Tr. 131). He further stated
that he wanted to quit over these two incidents and "figured it
would happen again somewhere down the line" (Tr. 132).

2514

Mr. Vanover reiterated that when he met with Mr. Smith and
Mr. Bauer after he quit he had not yet filed his MSHA complaint
and did not tell them that he was thinking about filing a
complaint. Although he had filed an unemployment complaint he
was not certain whether he filed it before this meeting
(Tr. 139-141). He confirmed that when he quit his job he
withdrew his company paid profit sharing account of approximately
over $56,000 (Tr. 142-143). He confirmed that his unemployment
claim was denied and that he received no benefits, and he did not
know that it was denied because he left his work voluntarily
(Tr. 144) •
George D. Smith, testified that in June, 1992, he was
employed by the respondent on the day shift. He stated that at
the end of his shift and while travelling out of the mine on a
mantrip he was seated on one end and heard someone at the other
end state "Let's get that dynamite off the motor and put it on
that other motor 11 o He could not identify who made the statement
(Tr. 146-148) .
On cross-examination, Mr. Smith stated that he did not see
the dynamite or any container that might have contained dynamite.
He did not see Mr. Vanover on the mantrip, and he indicated that
the other vehicle was a supply car locomotive and that it was
parked at a switch ready to go to the face (Tr. 149-150).
Mr. Smith stated that he did not hear anyone say anything
about the alleged transfer of the explosive bag and did not see
the bag. (Tr. 152). When asked if someone stated "Let's get
that bag off the motor", Mro Smith replied "They might have said
that" (Tr. 153) .
Larry Smith testified that he last worked for the respondent
on August lOu 1992u and that he voluntarily left his employment
(Tr. 155). He confirmed that he worked on the longwall with
Mr. Vanover for four or five months, and previously operated a
continuous miner. He stated that he bid for the longwall job and
performed various tasks (Tr. 156).
Mr. smith testified that when the longwall was initially
started, the water sprays and air on the section were erratic.
He confirmed that he asked for and received an air stream helmet,
and initially was supplied with filters, but later had to utilize
used filters which were ineffective (Tro 158).
Mr. Smith stated that he complained about the dust to
Mr. Osborne, Mr. Shell, and Mr. Sizemore, and that they responded
by telling him that "we'll take care of it" but that "we have to
run coal". He stated that the respondent supplied air and water
for the sprays when an inspector was in the mine, but that "after
he left, you know, it was the same old thing" (Tr. 160). He

2515

confirmed that MSHA inspector Randy Cline issued some citations,
but he did not know how many were issued (Tr. 160).
Mr. Smith stated that the longwall shear would make as many
as 18 passes when an inspector was not present, and that the mine
holds ' 1 two or three world records" for longwall production
(Tr. 166). He stated that the water sprays worked intermittently
from day to day and that three or four repairmen were working at
the face on a regular basis, and that production was not stopped
to repair the sprays (Tr. 168). He stated that the day he quit
he complained to Mr. Begley about the spray pressure and that
Mr. Begley cussed him (Tr. 169).
Mr. Smith stated
longwall repairs were made on the
third shift, but at no time were the conditions "perfect" when he
worked at the longwall and that there was w'always something going
wrong" (Tr. 171). He stated that he had to work downwind of the
shear because it was cutting in both directions (Tr. 172). He
confirmed that he complainedto Mr. Sizemore and Mr. Shell about
the waterv the dust 8 the air, and the dust filters, and that
"there was times they would correct it, you know, if an inspector
was there" (Tr. 173-174). He also complained about broken roof
shield protection, but that nothing was done about this
(Tr. 176-178).
Mr. smith stated that he never contacted an inspector about
any of his complaints because "the word got back to the company",
and he was not aware that he could make anonymous complaints and
was afraid he would lose his job if he complained to an inspector
(Tr. 183-184).
lvtr. Srnit:h
'cha·t he complained once in June or July
about shots being
lon~wall was running and he
received no warning about
shot (Tr. 184). With regard to the
transportation of dynamite on a mantrip 1 Mr. Smith stated that it
was in a yellow bag and placed on another motor which was going
out of the mine {Tr. 185). He stated that uvwe didn;t know it was
on there till we
out and
tched motors" (Tr. 186).

On cross-examinationu Mro Smith denied that Mro Edward Bauer
ever called him at home
he quit his jobv but stated that
Mro Hensly and someone
se asked him to come back to work. He
confirmed that Mrc Bauer gave him his business card and told him
to call him if he had any problems 1 but that he did not do so
because he quit and "was
ieved 1 (Tr. 192-193).
Q

Mro Smith confirmed that he filed an unemployment claim
against the respondent but 11 gave it upvv and never appeared for a
scheduled hearing before a referee. He also confirmed that he
made no complaints to MSHA or to any state regulatory authority
about his problems (Tr. 196-197). Mr. Smith stated that his

2516

memory was clear about the dynamite being transported out of the
mine after being moved from one motor to another (Tr. 199).
Mr. Smith stated that after he quit, he visited the MSHA
office at Hyden and was interviewed and gave a statement about
his complaints. Mr. VanoverPs counsel characterized the
"complaint" as an "informational complaint" concerning "safety to
the other workers". Mr. Smith confirmed that he did not file a
discrimination complaint because "It's not going to change.
They're not going to do nothing no different" (Tr. 205).
Mr. Smith confirmed that he knew that the respondent's
ventilation plan prohibited employees from being downwind of the
shear, but stated that he needed to be there to perform assigned
work. He confirmed that he has requested a boss to shut the
shear down if there was insufficient air or water and
that "sometimes they would, and sometimes they wouldn't 11
(Tr. 220-221).
Jim Tye was called as an adverse witness by the complainant,
and testified that he has served as the longwall manager since
September, 1992, and that prior to that time he was a maintenance
foreman. He confirmed that he worked with Mr. Vanover, and
although he confirmed that "we had problems on the wall on
occasion", he denied that Mr. Vanover ever complained to him
about the water (Tr. 229).
Mr. Tye stated that he was familiar with the ventilation
plan and that he enforced it to the best of his ability even
though it was not his direct responsibility (Tr. 229). He
identified a copy of the longwall dust control plan
(Exhibi·t
~ and confirmed that it now provides for a minimum
of 34 0 000 cubic feet per minute at the longwallv but that
Aprilp 1991u it only required 24,000 or 25,000 (Tr. 230-231). He
confirmed that the mine was out of compliance with the dust
requirements at one time and was cited for thatv and as a result
the citation, the longwall ventilation plan was upgraded to
provide 34 0 000 feet
air Tr. 231-232).
Mr. Tye confirmed that the dust control plan required that
90 percent of the water sprays be operational and he was not

aware that the respondent has ever been cited for having less
than 90 percent operational (Tr. 233).
Mr. Tye denied that Mr. Begley ever informed him that
Mr. Vanover had complained to him. He stated that he did not
know that Mr. Vanover quit his job until a couple of months after
he quit (Tr. 234). He confirmed that he never spoke to
Mr. Vanover about coming back to work (Tr. 234).

2517

Mr. Tye stated that there were always problems on the
longwall, and he explained as follows at (Tr. 236):
Q.

What did you consider the biggest problem?

A.

Well, just the basics. We always have a
problem with roof control. We always have a
problem with ventilation. We always have a
problem with the equipment. It's a continuous,
never-ending job.

Mr. Tye stated that although Mr. Vanover did not complain to
him about the dust, he spoke to Mr. Vanover about positioning
himself to stay adjacent to the shields and not to work inby in
the dust. If Mr. Vanover stayed outby the shields he would not
be in the dust generated by the shear while it was cutting coal
(Tr. 239-24 o) •
Mr. Tye stated that the longwall is targeted for 24,000 tons
of "raw product" per day on two production shifts. However this
production schedule varies, but it is still high (Tr. 241}.
Mr. Tye identified production tonnage estimates for March
through July, 1992 (Exhibits C-D through H) (Tr. 243-247). He
confirmed that as production increases, the amount of dust
generated also increases, but this would depend on varying
conditions (Tr. 248).
Mr. Tye stated that he does not travel with mine inspectors,
and they are usually escorted by a shift foreman or a safety
person (Tr. 250). He confirmed that at one time the shear cut in
both directions, but after the adoption of a the new dust control
plan the shear now cuts
only one direction from tail to head
(Tr. 253)
He also confirmed ~chat: ngtrim cuts 11 and gastep cutting'u
is done to keep the longwall face even. Further, uadouble
cuttingn is permitted under the plan for the first 120 feet to
uvsquare the face" (Tr. 254-257). Mr. Tye reiterated that he has
spoken t.o Mr. Vanover abou~c vmrking downwind of the shear, and he
confirmed that
ventilation plan does not permit anyone to be
downwind. of the shear and t.hat he has cautioned Mr. Vanover about
this (Tr. 258).
c

Mro Tye identified a copy of the mine ventilation plan
for October, 1991 1 and subsequent thereto, and he confirmed that
the new plan became effective in June, 1992 (Exhibit R-12<
Tr. 260-261). He confirmed that the new plan was adopted because
of the ventilation problems experienced under the 1991 plan
(Tr. 262). He stated that under the new plan, the number of
water sprays and water pressure were increased, and one-way
cutting was done (Tr. 263).
Mr. Tye stated that the respondent was out of compliance
with its ventilation plan only one time under the October 23,

2518

1991, plan and it has been in substantial compliance with the
current plan since that time (Tr. 264). He stated that the water
pressure on the sprays is currently 200 p.s.i., and 220 gallons
of water per minute is sprayed directly on the face as the coal
is cut (Tr. 265).
Mr. Tye identified several invoices showing expenditures
made by the respondent on certain devices designed to lessen the
miner's exposure to dust, and he explained some of the equipment
that has been purchased, including an expenditure of $25,000 for
a kit, spray beams, and dust helmets at a cost of $532 each, and
filters for the helmets (Exhibit R-14 Tr. 266-275). Mr. Tye also
explained how water is brought into the mine (Tr. 275-276).
Mr. Tye stated that there have been occasions when shear
operators and foremen have stopped production to make ventilation
and water repairs and he has never reprimanded anyone for
stopping production for this purpose (Tr. 276-277). Mr. Tye
confirmed that on one occasion when Mr. Smith complained, the
shear was shut down and a cracked drum was repaired
(Tr. 278-279).
Mr. Tye confirmed that he was not aware that miners were
working downwind of the shield, and that Mr. Vanover was not
downwind when he spoke to him about properly positioning himself
(Tr. 281). Mr. Tye stated that he did not go underground to
confirm Mr. Smith's complaint about the 40 pounds water pressure
and he had never previously heard about this allegation and only
knew that a spray drum was cracked.
Mr. Tye did not know why it was necessary for anyone to work
downwind of the shear while it is cuttingu and company guidelines
prohibit this {Tr. 293-294). He confirmed that the ventilation
plan requires preventive maintenance when less than 90 percent of
the water sprays are operational and that corrective action is
taken when this is discovered by stopping the shear and taking
care of any problem (Tr. 298). Mr. Tye again denied that
Mr. Vanover ever complained to him about any dust or water
problems (Tr. 299-302).
Daryl V. Brock, longwall technician and shear operatorf
stated that he has worked on the longwall from the beginning for
two and one-half years and worked with Mr. Vanover. Mr. Brock
stated that when the longwall was started in June or July, 1991,
he complained to section foreman Randy Turner about excessive
dust and that the dust conditions remained "severe" after that
time, including July, 1992, when Mr. Vanover left his employment
(Tr. 302-304). Mr. Brock confirmed that he uses a dust helmet
and had problems when he first got one. However, filters are now
readily available and he uses one per shift, and this was the
case when Mr. Vanover left. He also confirmed that as a matter

2519

of practice, the shear is stopped for major repairs, but not for
relatively minor repairs.
(Tr. 305).
Mr. Brock stated that the shear does not now cut in both
directions, and he indicated that it has "been awhile" since it
cut in two directions. He could not recall if it cut in two
directions at the time Mr. Vanover last worked at the mine
(Tr. 306).
On cross-examination, Mr. Brock stated that there is
currently ample water and air at the mine. He confirmed that on
one occasion when he and Mr. Vanover complained to foreman Steve
Shell while working on the second shift about the dust helmet
filters Mr. Shell addressed their concerns, took care of the
problem, and had "a positive attitude" (Tr. 307).
Mr. Brock stated that when Mr. Vanover left his job on the
first shift he had not worked with him for four or five months
and did not know what the conditions were on the shift {Tr. 308).
Mr. Brock stated that there were air and dust problems at the
time the shear cut in both directions, but when this practice
stopped he agreed that ventilation was increased and water
pressure on the face was increased. He confirmed that conditions
are presently better (Tr. 309-310). He confirmed that he is
the only member of his five-man crew who wears a dust helmet
(Tr. 311). He also confirmed that everyone complained about
the dust and water, including Mr. Vanover (Tr. 312-314).
Manford Roark, formerly employed by the respondent, stated
that he left his employment on April 26, 1993, and worked on the
second shift as a longwall technician. He did not work with
Mr. Vanover when he left his job, but had worked with him before
Mr" Vanover transferred to the first shift (Tr. 317-318)o
Mr. Roark stated that the conditions on the longwall were
v'very dusty - most of the time. Sometimes it was normal
conditions, not always" and that when an inspector was there
u~they bumped the water upu made sure we had air 11 (Tr. 318).
He
stated that when shooting was done on the second shift,
production would stop and men were taken outby the shot area
(Tr. 319) .
On cross-examination, Mr. Roark denied that he would have
testified in this case if he were not subpoened, and he confirmed
that he has a pending claim against the respondent for workers'
compensation benefits (Tr. 320). He also confirmed that he has
advanced black lung and quit his job for his health (Tr. 321).
James E. Hacker, shear operator, testified that he worked
with Mr. Vanover and heard him make complaints about the dust
conditions to Randy Turner, but to no one else (Tr. 322).
Mr. Hacker stated that Mr. Vanover complained about the dust

2520

and water, and he described the dust and water problems
{Tr. 323-325). He was not aware that Mr. Vanover ever complained
about insufficient air Stream helmet filters (Tr. 325). He
confirmed that the air and water conditions have improved since
Mr. Vanover left his employment (Tr. 326).
Mr. Hacker stated that it was a practice to stop the shear
for repairs to the water supply and to clean the water sprays
(Tr. 326). He confirmed that he did not work with Mr. Vanover at
the time he left his job, but worked with him three or four
months before he left (Tr. 327). Mr. Hacker stated that he would
stop the shear if anyone told him it was too dusty and the
respondent has never fired anyone for stopping the shear
(Tr. 328). He confirmed that he did not wear an air stream
helmet because it was too bulky (Tr. 328-329).
Mr. Hacker confirmed that Mr. Vanover complained to him
about the water and air. He stated that the shear was cutting in
both directions at that time, and that on one pass Mr. Vanover
would be inby the shear, and on the second pass he would be
behind the shear. However, the cutting plan was changed so that
the Shear cut only one way and Mr. Vanover could not legally be
behind the shear after this change was made (Tr. 331). However,
he indicated that Mr. Vanover had to be there because "the shear
would cut coal faster than the shields would advance" (Tr. 332).
With regard to any safety complaints, Mr. Hacker stated as
follows at (Tr. 334-336):
Q.

Did you or Mr. Vanover -- You said Mr. Vanover did
complain to Randy Turner.
uve complained to Randy.

Q.

And what was his reaction?

A.

Randy told us that -- Randy would do what he could at
the time. If we had an air problem, Randy would go
over, make sure the curtains was up to where they needed
to be. He would block all the air where the air would
come down the face. And there has been times we still
wouldnut have the minimum requirement.

Q.

What would he do with the water?

A.

He would do what he could. He would have the repairman
-- which is something that me or him or nobody else on
the production end knows anything about, is the fresh
water pump. They would try to adjust the pressure.

Q.

While the shear was operating?

2521

A.

Right. But we had a lot of problems. on the startup,
we had a lot of dregs in the lines stopping our filters
up and stopping our sprays up.

*

*
Q.

*

*

*

*

*

*

So you're saying like day to day, there problems were on
and off. Is that the way you would characterize it?
They would have problems and try to address it?
A.

Our section foreman would, Yes.

Q.

Was that Turner?

A.

Yeah.

Elmer R. Couch, Utility foreman, testified that he has held
various jobs at the mine, and helped set up the longwall in
1991, and is familiar with its operation. He confirmed that he
was familiar with the dust control plan (Tr. 341-342). Mr. Couch
stated that he had no knowledge of the longwall conditions after
July, 1992. He confirmed that he had no dust complaints while
the longwall was being set up, and returned to work on the
longwall two months ago (Tr. 346). Mr. Couch stated that it was
not unusual to have dust downwind of the shear when rock is being
cut, but the dust plan does not permit anyone to be downwind
while the shear is cutting (Tr. 348).
Respondent's Testimony and Evidence
Edward Bauer, respondent 6 s safety directoru testified that
longwall panel No. 1 was initially cut on April 22, 1991Q and
that four subsequent panels were cut during the period October 3u
1991 9 to t.he present (Tro 14).
He stated that he was familiar
with the longwall shields and has observed the longwall in
operation, and he confirmed that the roof control plan requires
that longwall shields be installed at distances no greater than
18 inches apart (Tr. 16)
He did not consider missing side
shields to be more that an ordinary mining hazard, and he
indicated that replacing a missing side shield before a longwall
move would be extremely hazardous because the shield would have
to be loweredu and this would expose a wider area of unsupported
roof at the face (Tr. 18).
o

Mr. Bauer testified that he headed the respondent's
investigation of the fatal accident concerning Mr. Mark Griffy,
and also participated in the MSHA and state investigations. He
believed that Mr. Griffey was properly trained, and he confirmed
that no training citations were issued to the respondent as the
result of this incident (Tr. 18-24). He also confirmed that he
conducted an investigation into the underground detonations of
June 23 and 24, 1992, and he confirmed that he first learned of

2522

these incidents during a discussion with Larry Smith on the
longwall section in August 6 1992 (Tr. 25). Mr. Bauer explained
that he interviewed employees working on the section to determine
what happened and that he requested a meeting and met with MSHA
subdistrict manager James Ison on August 24, 1992. Mr. Bauer
stated that his investigation disclosed that a single stick of an
approved explosive was set off on the day shift in a confined
charge approximately 100 to 200 feet outby the longwall face.
Mr. Bauer stated that the area had been rock dusted and that
proper methane and ventilation checks had been made before the
shot. He further stated that a warning was given before the
shot, and that the shot fireman gave the standard "Fire in the
Hole" voice warning three times (Tr. 25-27).
Mr. Bauer produced a copy of a September 4, 1992, Memorandum
from an MSHA inspector to Subdistrict Manager Ison concerning an
anonymous telephone complaint received by MSHA concerning safety
allegations at the respondent's mine during June 23 and 24, 1992.
Mr. Bauer stated that he received the report from MSHA in his
capacity of safety director (Tr. 27-29; Exhibit R-1). Mr. Bauer
testified that Mr. Isom gave him a copy of the memorandum when he
went to his office to discuss the detonation incident (Tr. 33).
Mr. Bauer acknowledged that the longwall had ventilation
problems when an excessive dust violation was issued on
August 28, 1991, and he explained the action taken by the
respondent as a result of this violation. He stated that the
mine ventilation was initially changed on October 31, 1991, and
that the air velocity on the longwall face was increased from
23,000 c.f"m. to 25,000 Cof.m. A subsequent increase was made to
34§000 Cof.m. 8 on December 3 1991 7 and instead of cutting in two
, ·the plan was changed to require cutting in one
He confirmed that
mine has not had additional
problems staying in compliance since December, 1991. He confirmed
that from March, 1992, when Mr. Vanover began working the first
shift, until he left in Julyu 1992, only two ventilation
ations were issued on the longwall section (Tr. 33-38).
Mro Bauer confirmed
there are occasions when fewer
of the longwall shear are made when an inspector is in the
and he gave some representat
examples from his records,
production downtime (Tr. 52-56). Mr. Bauer stated that
downtimes are caused by inspector
meetings or inspections
the tailgate area which requires a stop in production
(Tro 56=57)o
f

Mr. Bauer stated that he initiated the meeting at Pete's
Minimart with Mr. Vanover on August 5, 1992, after assistant
personnel director Kenny Smith advised him that Mr. Vanover
stated that he left his employment because of excessive dust on
the longwall section. Mr. Bauer confirmed that Mr. Smith was also
present, and he explained what transpired during the meeting,

2523

including actions that he had taken and certain assurances that
he gave Mr. Vanover concerning his dust concerns (Tr. 57-59).
Mr. Bauer further explained as follows at Tr. 59-61):
A.

After I explained to Mr. Vanover what we had done, we
asked if he felt comfortable enough in returning to work
at Shamrock, Yes.

Q.

What was his reply?

A.

He indicated, no, he wasn't.

Q.

Did he tell you why he wasn 1 t going to return to work?

A.

He indicated he didn't think things would change. And
at that point, I asked if we had a person in the safety
department go with him -- I even said Steve Shell go
with him, at the beginning of the shift, to take air
readings and water pressure readings, would that make
him feel any better about it?

Q.

What did he say?

A.

He indicated negatively. He just didn't think things
could change. And I asked him, "What if I went in with
you at the beginning of every shift to take air readings
and water pressure readings?" I said, "We won't start
till you feel comfortable. 11

Q.

And the reply?

Did you offer anything else?
A.

Yes. I finally said, 11 If Lynberg Rice goes in with
you ..• and at that timep Lynberg was the general manager
of operations.
If he goes in with you and we take
readings and water pressure readings and we don 1 t
start till you feel things are right, would you feel
comfortable then?" He indicated he was done with coal
mining.
c

••

Q.

He didn't say what he intended to do?

A.

During my conversation, he did not. During his
conversation with Kenny Smith, he indicated

*

*

*

*

2524

*

*

*

THE WITNESS: After Kenny Smith had reiterated, or I
stated, Mr. Vanover indicated he was going to get his
money and go to college.
Mr. Bauer further explained that he learned of Mr. Vanover's
dust complaint during the exit interview at the end of July, and
that August 5, was the earliest date he could arrange a meeting
with Mr. Vanover (Tr. 63). Mr. Bauer also explained the action
he took after receiving Larry Smith's allegations concerning
explosives allegedly carried on a mantrip. He confirmed that he
conducted an investigation and also implemented a safe work
instruction for handling explosives (Tr. 63-65: Exhibit R-3).
Mr. Bauer stated that he conducts safety training and
instructions as part of his job, and that mine personnel are
informed as to how to go about expressing safety complaints
(Tr. 66-70). He confirmed that shot firemen are required to pass
a state certification test, and they are required to have a
certain amount of experience in the use of explosives (Tr. 70).
On cross-examination, Mr. Bauer responded to additional
questions concerning the longwall section reports (Tr. 72-85).
He further testified about the operation of the shear shields,
and he confirmed that the longwall machinery is loud and that it
is possible that no one heard the shot firer give his verbal
warning before firing the shots in question (Tr. 95). He
confirmed that his records reflect only one excessive dust
violation on the longwall from April, 1991, through the end of
July, 1992 (Tr. 95}. He also confirmed that the first dust
complaint that he was aware of was the one made by Mr. Vanover
during his exit interview (Tr. 97)o
Mro Bauer reviewed certa
longwall section reports and
testified
certain air readings taken periodically during
several months in 1991 and 1992, as well as intermittent dust
sampling (Tr. 99-111~ Exhibit C-J).

Mr. Bauer confirmed that any dust generated by the
underground shot in June 9 1992 would go by the longwall face
(Tr. 113). Mr. Bauer testified about his investigation of the
incident concerning explosives being transported on a mantrip.
He stated that his investigation was inconclusive and that no one
that he interviewed saw explosives or a detonator on the man trip
(Tro 114-ll?)o He stated that Mark Griffey told him that a
yellow brattice bag and a green and white coal sampling bag had
been placed on top of a man trip, but that he did not see any
explosives or detonators on the man trip (Tro 119).
In response to further question, Mr. Bauer stated that
146 mine inspection shifts were conducted at the mine between
January, 1992, and through the end of July, and that only two
longwall ventilation citations were received during that time

2525

(Tr. 121). He stated that air readings are taken daily as
required, and that the law does not require air readings to
appear on longwall section reports, nor is a longwall section
report required to be kept (Tr. 122). He identified copies of
certain preshift reports (Exhibit R-5), and testified to several
recorded air readings. He confirmed that 34,000 c.f.m. of air is
required on the longwall face while coal is being mined, and he
pointed out additional air reading notations in the preshift
reports indicating compliance with the October, 1991, plan
requiring 25,000 c.f.m. of air (Tr. 128). Mr. Bauer denied any
knowledge of a foreman ever instructing anyone to stay downwind
of the shearer while coal was being cut in order to do their job
(Tr. 131) •
Billie Sizemore, Safety technician, testified that his
duties include the monitoring of dust surveys, assisting on
safety plans, and accompanying inspectors. He explained the
procedures for dust sampling on the longwall, and confirmed that
there were dust problems in October, 1991. He also explained the
remedial measures taken by the respondent, including the
installation of a "spray arm" which provided additional sprays
directly on the longwall cutter and the purchase of air stream
helmets {Tr. 141-145).
Mr. Sizemore stated that he submits his dust sampling
schedule to MSHA in advance of sampling and confirmed that
inspectors accompany him during his dust sampling (Tr. 145, 148).
He identified reports of dust samples he has submitted to MSHA,
including samples for certain designated longwall areas, and he
confirmed that the areas have been in compliance for at least a
year and the periods shown on the reports (Exhibit R-6,
Tro 149-153)o
Mr, Sizemore identified copies of bimonthly dust samples
submitted to MSHA for a mechanized mining unit (M.M.U.) for the
MayjJune 1991, sampling cycle, and he confirmed that the unit was
in compliance and that the average dust concentration was
loOu which is below the allowable limit of 2.0 (Exhibit R-7,
Tro 153-154)
He identified additional sample surveys for
JulyjAugustu 1991, and September/October, 1991, and January
through June, 1992. He confirmed that the mine was in compliance
with MSHA's dust standards during all of these periods, except
for SeptemberjOctoberu 199lu when there were problems with the
face falling out and a lot of rock coming between the shields,
and the ventilation plan was revised (Tr. 155-156). He stated
that the respondent has not been out of compliance through the
time Mr. Vanover left his employment {Tr. 157-158, Exhibit R-8).
o

Mr. Sizemore stated that the respondent spent $17,347.04,
for air stream helmets, filters, and replacement parts from
October 1, 1992 to March 25, 1993 (Exhibit R-10, Tr. 160-162).

2526

On cross-examination, Mr. Sizemore testified further about
his dust sample results and the production on the longwall
(Tr. 163-169). He confirmed that dust complaints were made
during September/October, 1991, and they were brought to his
attention. He could not recall if the complaints were made by
Mr. Vanover (Tr. 171).
Mr. Sizemore stated that according to the mine dust plan no
one is supposed to be downwind of the shear when the shear is
coming back to the headgate entry cutting coal. He has observed
people working downwind of the Shear, and they were cited by an
inspector on two occasions because of this (Tr. 171-172,
177-178}.
In response to further questions, Mr. Sizemore could not
deny that Mr. Vanover ever made any dust complaints, and stated
that "I couldn't say he did either. I cannot remember whether
he complained to me or not" (Tr. 182). He also could not recall
Mr. Vanover complaining to any one else (Tr. 183). He confirmed
that there were many complaints about the air during
September/October, 1991, but after corrective action was taken
by increasing the amount of air, installing additional sprays,
and purchasing additional air helmets, the complaints decreased
(Tr. 184). He stated that npeople are going to complain no
matter what you dou, and that he has responded by going to the
face to check the air and water pressure (Tr. 185). He denied
that Mr. Vanover ever complained or spoke to him about
transporting explosives underground or shooting underground
(Tr. 185}.
Hetch Begley, Jrov longwall maintenance foreman, testified
that he worked with Mro Vanover on the first shift at the time he
left his employmentc Mro Begley stated that his job involves the
maintenance and repair
longwall equipment,? including the water
sprays. He stated that he has repaired the water sprays on an
average of 6 to 12 times a week and that the Shear is shut down
when repairs are made (Tro 187-188}. He explained that he has
responded to
ls to make the repairs or has dispatched his
maintenance personnel to
so
Mro Begley stated that Mro Vanover complained to him on
several occasions about the dust on the longwall? and that he
responded by sending his maintenance people to address the
problemo He denied that he ever told Mro Vanover that repairs
were not needed and to eo keep running coal 00
He had no knowledge
that any of his personnel ever stated this to Mro Vanover, and
indicated that he would not approve of this if they did
(Tr. 190).
c

Mr. Begley stated that he has observed Mr. Vanover behind
the shear, and informed him that it is not permitted by company
rules and regulations (Tr. 190). He stated that there was no

2527

reason for anyone to be working behind the shear, and that if
work is necessary at that location the shear is supposed to be
stopped (Tr. 191).
Mr. Begley stated that on one occasion when Larry Smith
complained about low water pressure shortly before he quit, he
went to the tailgate and shut the shear down and personally
checked the water pressureo After finding it in order, the shear
was started up, and Mr. Smith complained again. Mr. Begley
checked it a second time, and found that the pressure was low and
he shut the shear down again and repaired a broken hose and
missing spray (Tr. 193-194).
on cross-examination, Mr. Begley reiterated that Mr. Vanover
complained to him about the water and dust on several occasions,
but he could not recall the exact number (Tr. 198).
John F. Craft, longwall mechanic, testified that he worked
with Mr. Vanover on the first and second shifts. He confirmed
that the water sprays need servicing or repairs every shift and
that Mr. Osborne, Mr. Begley, and the shear operators have been
called upon to do this work. He stated that the shear must be
shut down to do the work, and he has never told anyone that there
were no problems and that they should just keep working. He has
never refused to shut down the shear to make repairs, and that 11 I
fix it when it needs fixing. That is my job. I try to find out
the problem" (Tr. 203).
On cross-examination, Mr. Craft stated that the decision to
shut down the shear is usually made by the production or
maintenance foremanu including Mr. Osbornev Mr. Turneru and
Mr. Begley Tr. 203)o He stated that the water sprays are
:regularly serviced ·twice a shi
depending on when the belt is
moved (Tr. 204 . Mr. Craft confirmed that the broken headgate
drum was repaired during the summer of 1992, and it took one to
two weeks to receive a replacement part (Tr. 205).
r1:r.

stated that Mr. Vanover complained to him about

·the dust and lacJ{ of water on the section u and he responded to

Mr. Vanover•s requests to check the water pumps (Tr. 205). He
stated that the shields are maintained and repaired as needed,
and he has never had to replace any shields. Side shields have
be maintained at least 18 inches apartu and they are replaced
when there
a move to another panel (Tro 207).
Doyle Roberts, lighthouse attendant, testified about his
care and maintenance of the air stream helmets and filters, and
the procedures he follows for making them available to the
workforce (Tr. 209-212). He identified several invoices for
purchases of the airstream helmet filters that are stocked and
available in the supply house and lamp house (Exhibit R-9,

2528

Tr. 212-215). He confirmed that he checks the helmet fans every
two weeks and if anyone complains about the fans, he will issue a
new one (Tr. 216).
On cross-examination, Mr. Roberts stated that he did not
service Mr. Vanover's helmet, and testified further about his
servicing of the filters {Tr. 217-220). He explained that he
never worked with Mr. Vanover because they were on different
shifts, and he was not certain that Mr. Vanover had a helmet
(Tr. 221) •
Denny Osborne, longwall production foreman 1 testified that
he served in that position since the longwall was started in
1991, and has worked for the respondent for 16 years. He was
Mr. Vanover's supervisor on the first shift. He confirmed that
there were problems with the water supply sometimesp and that the
equipment would be shut down to address the problems, depending
on the particular problem. If a water line breaksv he would shut
down the equipment, and he did so "probably twice a week 11
(Tr. 223).
Mr. Osborne could not recall Mr. Vanover ever complaining to
him about the dust. He could not recall any dust problems in
October, 1991, but did recall a change in the ventilation plan
when the cutting was done one way from tail to head (Tr. 224).
He denied that shield technicians on his section were required to
work downwind of the shear to perform maintenance or to repair a
shield problem. He has observed people downwind of the shear,
but has informed them they are not to be there and has required
them to move out (Tr. 225).
Mr. Osborne stated that the shear operators have the
authority to stop the shearv and that the shield technician may
request that this be done. He confirmed that he has stopped the
shear to fix a dust or water problem (Tr. 226). He has observed
Mr. Vanover stay at the tail section while another shield
technician went with the cut 1 but he never warned him about this.
He
not know whether Mr. Vanover wore an air stream helmet
Tr. 227)
He stated that I>lir. Vanover only worked on
shift
as part of the crew for two or three months (Tr. 229)c
c

on cross-examination~ Mr. Osborne stated that Mr. Vanover
took his vacation in Julyv 1992v and then quitv and
did not
complain to him about the dust or lack of water before he took
vacation or during the entire time he worked for him (Tr. 230v
234). He did not know why Mr. Vanover quit his job, and never
discussed it with him. He knew nothing about any efforts to get
Mr. Vanover to come back to work, and he considered him to be a
good worker (Tr. 236).
Timothy w. Roberts, Shield technician, testified that he
worked with Mr. Vanover on the first shift. He confirmed that

2529

there were problems with the water "sometimes", but that he never
complained about the dust or water. He stated that when problems
were encountered with the water the respondent "tried to get it
fixedn and the shear would be shut down to make repairs. He
could not recall Mr. Vanover ever complaining to him about the
dust or water pressure (Tr. 239). Mr. Roberts recalled the
underground shots on June 23 and 24, 1992, and he did not fear
for his safety even though he was closer to the shot than
Mr. Vanover (Tr. 239).
On cross-examination, Mr. Roberts stated that he knew that
the shots would be fired because he was assigned to watch the
break to make sure that no one came through the area. He was in
fresh air at the time, and the dust from the explosion went down
the longwall face and down the return where Mr. Vanover was
working (Tr 241) •
Mr. Roberts stated that as a shield technician he tries to
keep up with the shear operator and that a couple of times he
asked the operator to slow down. He confirmed that he has worked
downwind of the shear because "sometimes the shields wouldn't
operate right" and he needed to be there to make sure it was
operating properly (Tr. 243).

Mr. Roberts recalled that Mr. Vanover and Larry Smith
complained about the water pressure on the last days that they
worked at the mine. He believed that Mr. Vanover complained to
the maintenance foreman, but did not hear the actual complaint
and only "heard people talking about him making a complaint"
(Tr. 245) •

.::;·effrey so Shell, Safety coordinator f testified that his
include safety training of personnel working on the
longwall, including Mr. Vanover. He stated that the training
included an explanation of the procedures for making safety
complaints and the protections afforded by the Mine Act for
personnel making complaints. He also has instructed personnel not
~o be downwind of the Shear and to stay on the intake side, and
ne conducts annual refresher training once a year (Tr. 246-249).
On cross-examinationf Mr. Shell stated that Mr. Vanover
spoke about not having filters for the air steam helmets, but
could not recall that he complained about the dust or inadequate
water (Tro 249).
Kenny Smith, assistant personnel manager, identified copies
of Mr. VanoverRs work time card records that are in his custody
(Exhibit R-11). He also identified a copy of Mr. Vanover's exit
interview that he prepared and confirmed that he made the
notation ~'Too dusty at the face", and that this is what
Mr. Vanover told him (Exhibit "A", Tr. 255). He also identified
a job bid sheet and a job posting request for a first shift

2530

longwall technician position that Mr. Vanover made a bid for
(Exhibit R-16, Tr. 258). He confirmed that the job posting
specified that overtime work would be scheduled as needed,
including Sundays {Tr. 258).
Mr. Smith stated that after conducting the exit interview
with Mr. Vanover on July 28, 1992, he arranged a meeting with
Mr. Vanover and Mr. Bauer at "Pete"s minimart", and the three of
them met there on August 5, 1992, at 11:00 a.m., Mr. Smith stated
that he and Mr. Bauer spoke to Mr. Vanover about his dust
complaints and his reasons for leaving his job (Tr. 261).
Mr. Smith further explained as follows at (Tr. 261-262):
The first thing we asked him, said. "Would you consider
to come back to work at Shamrock if the problems were
fixed." And Slade said, "Don't much -- Don't think I'm
interested in coal mining anymore," I believe is what
he said.
And Ed said, "If I were to check into this and it were
true, if a safety inspector went with you, would you
feel comfortable with it? Then he said, well, how
about myself, if I went with you?" and finally, Ed said
01 Even if Lynberg Rice goes with you, would you feel
comfortable with it?"
And as I remember, Slade said, "I just think I'm
through with mining coal." He said, "I'm going to go
back to school." And at that time, I said, "Slade,
where are you gong to go to school?" And he said
Maybe 1 I think he said he was going to Eastern"
There
a community college over at Manchestero
Actuallyu itus a center for Eastern Kentucky
University. And I asked Slade, I said, "if there is
anything you need at Eastern, at Manchester, let me
know. Iull be happy to help you or try to help you, if
you need some classes or whatever. 00
And, at (Tr. 268-270) ~
Q.

So you're telling me itPs not unusual to meet with an
employee when he claims that here is something that
might affect the safety of the mine. Is that what
you 8 re telling me?

A.

That is what I'm telling you.

Q.

Did he ever complain to you before this exit interview
or did you have any knowledge of any complaints he may
have filed about dust or water?

2531

A.

I had none, sir.

Q.

How about explosives being transported on the man trip?

A.

No, sir.

Q.

How about detonations underground?

A.

I had never talked to Slade, other than just in a casual
manner, before July 28; I mean, just being at the mine
site, hello, or whatever.

*

*

*

Q.

So you had no inkling that Mr. Vanover was complaining
or had any problems until

A.

Not until I talked to him on the twenty-eighth.

*

on cross-examination, Mr. Smith stated that he could not
recall Mr. Vanover stating that "he did not think things would
change" during their meeting of August 5, 1992 (Tr. 263).
Mr. Smith confirmed that he does not administer the company
profit sharing plan, and he "guessed" that it was a retirement
fund that is based partially on company profits, and that the
company guarantees payment of a percentage of an employees'
salary to the plan (Tr. 264).
In response to further questions, Mr. Smith stated that he
first heard about any dust complaints by Mr. Vanover on July 28,
l992v during the exit interview.
He explained that Mr. Vanoverus
last day
t.he job ~vas
20 or 21, but since he had been on
vacation he did not learn that he had quit until he came in for
the
interview (Tr. 265).
Mr. Vanover was called in rebuttal, and stated that when he left
his job he thought about going to college but decided not to
because ~I would have never made itYi (Tr. 272). He confirmed
t.hat he ·told Mr. Smith and Mr. Bauer that he was thinking about
going to college when he met with them, and that he had submitted
the necessary paperwork to withdraw his profit sharing money
which he thought about using for college (Tr. 274).
0

Mr. Vanover stated that he informed Mr. Osborne before he
quit that he was going to take one week of vacation "to think
about it, and if I didnPt come back the second week, that I would
probably quit" (Tr. 276). When asked if he told Mr. Osborne why
he was thinking about quitting, Mr. Vanover stated "he already
knew", and he confirmed that he had complained to Mr. Osborne and
Mr. Begley about the dust, and "mostly about the water pressure"
that was insufficient to control the dust at the face (Tr. 277).

2532

Mr. Vanover stated that he worked downwind of the shear to
keep up with the shear operator every shift since the longwall
was started even though it was contrary to company policy because
"I took it that it was my job, that was the way that it was done"
(Tr. 277-279). He stated that none of his foreman ever told him
not to get out from the area downwind of the shear (Tr. 280).
Mr. Vanover stated that Mr. Begley responded to his dust and
water complaints "a few times, but not every time" (Tr. 283). He
also stated that he never attempted to shut the shear down
himself but that others have done so when it was broken down or
completely out of water (Tr. 284}. He further stated that a few
side shields close to the headgate and tailgate were replaced
(Tr. 286).
Mr. Vanover stated that he did not actually see the dynamite
on the mantrip, but had seen dynamite in a bag earlier in the day
in another entry and he assumed that the person who had it was
going to use it to shoot. Mr. Vanover stated that he left the
entry to go to the face and saw the bag later, with another bag,
on the mantrip. When asked if the bag could have been empty,
Mr. Vanover responded "I suppose it could have" (Tr. 288-290).
He confirmed that he did not know whether the bag was empty or
full when he saw it on the mantrip, and that no one else said
anything about it, except for Mark Griffy who commented that the
bag was heavy and had something in it (Tr. 290).
When asked if his observation of the bag caused him to quit
his job, Mr. Vanover responded 11 not exactly, but that helped"
(Tr. 291). He confirmed that this incident occurred about a
month before he quit (Tr. 291).
Larry Smith was called in rebuttal, and he stated that he
heard Mr. Vanover make complaints to Mr. Osborne about the water
or dust on ouAny "tvork day", but not every day (Tr. 294, 297).
Mr. Smith stated that he quit his job after receiving a layoff
notice (Tr. 301). He stated that he has no bad feelings against
the respondent or Mr. Vanover, but commented that 11 I don't
associate
either one of themg the company or him" (Tr. 302).
Findings and Conclusions
Fact of Violation
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.

2533

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 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. Hare 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.
The Complainant's Protected Activity
I conclude and find that Mr. Vanover had a right to complain
about mine working conditions and practices that he believed were
hazardous to his safety and health, and that any such complaints
are protected activities which may not be the motivation by mine
management for any adverse personnel action against him.
Secretary of Labor ex rel Pasula v. Consolidation Coal Co.,
FMSHRC 2786 (October 1980), Revfd on other grounds, sub. nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981)u
and Secretary of Labor ex rel. Robinette v. United Castle Coal
Co.u 3 FMSHRC 803 (April 1981). Safety complaints to mine
management or to a section foreman constitutes protected
activityu Baker v. Interior Board of Mine Operations Appealsu
595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. However, the
minerRs safety complaints must be made with reasonable promptness
and in good faithu and be communicated to mine management, MSHA
ex rel. Michael J. Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d
194 1 195-96 (7th Cir. 1982); Sammons v. Mine Services Co.,
6 FMSHRC 1391 (June 1984)
The Complainant's Complaint Communication to the Respondent
In a number of safety related "work refusal" cases, it has
been consistently held that a miner has a duty and obligation to
communicate any safety complaints to mine management in order to

2534

afford the operator with a reasonable opportunity to address
them. See: Secretary ex rel. Paul Sedqmer et al. v.
Consolidation Company, 8 FMSHRC 303 (March 1986); Miller v.
FMSHRC, 687 F.2d 194 (&th Cir. 1982); Simpson v. Kenta Energy,
Inc., 8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. Reco,
Inc., 9 FMSHRC 992 (June 1987); Sammmons 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
Curiam by agreement of the parties, July 12, 1989, u.s. Court of
Appeals for the District of Columbia Circuit, No. 89-1097.
The evidence establishes that Mr. Vanover was assigned to
the longwall section as a second shift shield technician in March
or April 1991, an that he transferred to the first shift in
March, 1992. He testified that he began complaining about the
dust from the time he was assigned to the longwall until he left
his job in July, 1992. This is consistent with his March a,
1993, deposition testimony that he started complaining about the
dust approximately a month orso after the longwall started in
production (Tr. 8).
Mr. Vanover testified that his dust complaints were made to
mine superintendent Ed Boylen, maintenance foreman James Tye,
longwall coordinator David Hensly, Safety director Steve Shell,
dust sampler Bill Sizemore, maintenance foreman Hetch Begley, and
shift supervisor Denny Osborne.
Mr. Begley confirmed that Mr. Vanover complained to him on
several occasions about the longwall dust and water problems.
Mr. Tye testified that Mr. Vanover never complained to him and
that he did not know that Mr. Vanover had quit until two months
later. Mr. Sizemore testified that Q'everyoneu' complained about
the ventilation when the longwall initial
was
production p but
could not. recall ·that !Y1r. Vanover complained
to him or anyone
se. Safety coordinator Jeffrey vosteve•v Shell
testified that Mr. Vanover spoke to him about the lack of dust
helmet filtersp but he could not recall that Mr, Vanover
complained about any dust or water problems, Mro Osborne could
not recall ·that. Mr Vanover ever complained \:o
about the
dust.
o

Daryl Brockv longwall technician and Shear operatorv
testified that everyone complained about t.he \vater and dust,
including Mr. Vanover. Longwall mechanic John Craft testified
that Mr. Vanover complained to him about the dust and lack of
water on the longwall section. Shield technician Timothy Roberts
recalled that he heard from others that Mr. Vanover had
complained about the water pressure on the longwall.
Mr. Vanover testified that he also complained about the
longwall dust when he worked on the second shift, and that he
complained to shift supervisor Randy Turner and shift maintenance

2535

foreman Wade Blevins. Mr. Turner and Mr. Blevins did not testify
in this case. Shear operator James Hacker, who worked with
Mr. Vanover for two or three months before he left the job,
testified that he heard Mr. Vanover complain about the dusty
conditions to Mr. Turner. Mr. Hacker stated that Mr. Vanover
also complained to him about the water and ventilation.
Mr. Vanover testified that he complained about working
excessive hours. However, I take note of the fact that his
original discrimination complain is devoid of any such
allegation. I also note the fact that Mr. Vanover voluntarily
bid for the job, was compensated with overtime pay, and had no
complaints about the pay (Tr. 30-31). Further, at the time the
job was posted for bidding, the notice specifically stated that
overtime work, including sunday work, would be scheduled as
needed, and that shift schedules may be rotated as necessary.
These statements were included as part of the job requirements
(Exhibit R-16), and this was confirmed by assistant personnel
manager Kenny Smith (Tr. 258). Mr. Vanover himself confirmed
that he was aware of these work requirements when he took the job
(Tr. 74-75).
I find no credible evidence to establish that Mr. Vanover
complained to management about working excessive hours. Even if
he had complained, there is no evidence that any such work, even
if it were performed, adversely affected Mr. Vanover's health or
safety, or was in any way a reason for his leaving his job.

Mr. Vanover testified that after an underground shot was
fired on June 23, 1992, he complained about this to Mr. Hensley
the next morning 0 June 24 1 1992v and that a second shot was fired
'chat day (Tr. 33 v 94) •
Mr" Vanover could not recall whether he
complained before or after the second shot was fired, and when
reminded of his deposition testimony that he complained to
Mr. Hensley after the second day (Depo. Tr. 14), Mr. Vanover
stated that he cold not remember whether he complained before or
after the shot on the second day and he "guessed" that his
O.eposi tion testimony 91 was close to correct 11 (Tr. 94) •

Mr. Vanover confirmed that he did not complain about the
shot on June 23 1 after it occurred that day because he "didn't
see anybody that dayn (Tr. 95). He stated that the next day,
June 24 0 he saw Mr. Hensley and "kind of complained about it to
him 91 (Tr. 95). When asked to further explain his complaint to
Mr. Hensleyi Mr. Vanover stated that "I just told him I didn't
like it" (Tr. 95) .
Respondent's Safety Director Bauer testified that he first
learned about the shots sometime in August, 1992, during a
discussion with Larry Smith (Tr. 25). Mr. Hensley did not

2536

testify in this case, and Mr. Vanover's testimony concerning his
"complaint" to Mr. Hensley concerning the underground shots in
question is unrebutted.
Mr. Vanover testified on direct examination that he also
complained to Mr. Hensley about the alleged transportation of
explosives underground on a mantrip and that Mr. Hensley "didn't
really say nothing about it. He just kind of shrugged his
shoulders" (Tr. 35). However, in response to further bench
questions, Mr. Vanover stated that he could not remember how he
communicated his complaint, and he stated that Larry Smith "was
already talking about it'!, and that he (Vanover) complained about
the underground shots (Tr. 131).
Mr. Bauer testified that he learned about the incident in
question from Larry Smith after August 5, 1992, (Tr. 61-65), and
there is no evidence that Mr. Vanover ever complained to
Mr. Bauer or anyone else aboutthe matter.
I find Mr. Vanover's testimony to be rather equivocal and
unconvincing to support any conclusion that he did in fact
complain directly to Mr. Hensley about the transportation of
explosives on a mantrip. Even if he had complained, it would
appear to me that it reached management's attention after the
fact, and that management responded reasonably when it learned of
the incident. Safety Director Bauer testified credibly that he
:::onducted on inquiry into the matter when it was called to his
attention by Larry Smith, met with MSHA's sub-district manager to
discuss the matter, and implemented a safe work instruction for
handling explosives. I also take note of the fact that MSHA
responded to an anonymous telephone complaint about the matter
made on August 25f 1992v well after Mr. Vanover left his jobv and
conducted an investigation which included interviews with miners
who rode the mantrip on June 23 and 24, 1992. All of the miners
who were interviewed stated that no explosives were hauled on the
mantrip on the days in question (Exhibit R-1).
Mr Vanover confirmed that air stream dust helmets were made
available at the longwall section and that they were of
00 considerable. helpw 1 initially, but were later insufficient
because of the lack of new filters every day. Mr. Vanover 9 s
complaint about the filters was voiced for the first time at the
hearing in this case, and his original complaint did not include
or mention any helmet problem. Although the evidence in this
case reflects some initial periodic problems concerning a daily
supply of fresh helmet filters when the helmets were initially
made available on the longwall section, it also shows that
helmets were available for use, and that additional helmets and
filters were purchased and made available to all miners who
wanted them.

2537

Safety coordinator Steve Shell confirmed that Mr. Vanover
spoke to him about not having helmet filters. However, I take
note of longwall technician Brock's credible and unrebutted
testimony that when he and Mr. Vanover complained to Mr. Shell
about the lack of filters on the second shift, Mr. Shell
displayed 80 a positive attituden, addressed their concerns, and
took care of the problem (Tr. 307).
Aside from the apparently single isolated complaint to
Mr. Shell while working on the second shift, I find no credible
evidence that Mr. Vanover complained to mine management about any
dust helmet problems at any time close to his quitting his job.
Furtheru I cannot conclude that Mr. Vanover's rather brief
concern about the lack of daily helmet filters, had any
connection with his leaving his job. I further conclude and find
that the respondent addressed Mr. Vanover's concerns by taking
reasonably prompt efforts to secure additional helmets and
filtersu and to make them available to the lighthouse and supply
personnel for distribution to the workforce as needed.
I conclude and find that Mr. Vanover timely communicated his
complaints about the longwall dust and water problems to
maintenance foreman Hetch Begley. I further conclude and find
that Mr. Vanover 5 s unrebutted statement to longwall coordinator
David Hensley that he 11 did not like" the underground shooting
that took place constituted a communicated safety related
complaint. Both of these complaints met the "safety
communication" requirements established by the Commission in
Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4
FMSHRC 126 (February 1982) ~ Secretary ex rel John Cooley v.
Ottowa Silica Comoany, 6 FMSHRC 516 (March 1984) ~ Gilbert v.
Sandy Fori;: I.J:ininc; Company, supra~ Sammons v. Mine Services Co.
o FMSHRC :"..391
~"..984

The Respondentus Responses to the Complainant's Complaints
When
expressed a reasonable 11 good faith fear of
a
or
hazard and has communicated this to mine
management:.f management has a duty and obligation to address the
perceived hazard or safety concern in a manner sufficient to
reasonably quell
fears 11 or to correct or eliminate the
hazard. Secretary
River Hurricane Coal Co., 5 FMSHRC 1529,
1534 (September 1983}? Gilbert v. Sandy Fork Mining Company, 12
FMSHRC 177 (February 1990); on remand from Gilbert v. FMSHRC, 866
F.2d 1433 (D.C. Cir. 1989), revtg Gilbert v. sandy Fork Mining
Co.i 9 FMSHRC 1327 (1987).
c

There is no evidence in this case that prior to leaving his
job, Mr. Vanover ever refused to work because of his complaints.
In a typical "work refusal" case, the critical issue presented is
whether or not the complaining miner's belief that a hazard
exists is reasonable and made in good faith. Secretary ex rel.

2538

Bush v. 997 (June 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 from the miner'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. FMSHRC
1529, 1533-34 (September 1983); Haro v. Magma Copper Co., at 810.
secretary on behalf of Hogan and Ventura v. Emerald Mines Corp.,
8 FMSHRC 1066 (July 1986). The Commission has also explained
that "good faith belief simply means honest belief that a hazard
exists 11 • Robinette, supra at 810.
I conclude and find that Mr. Vanover's case is one of
"constructive discharge". A constructive discharge occurs when a
miner engaged in protected activity can show that an operator
created or maintained conditions so intolerable that a reasonable
miner would have felt compelled to resign. Simpson v. FMSHRC,
842 F.2d 453 (D.C. Cir. 1988) at 461-463. Whether such
conditions are so intolerable is a question for the trier of
fact, Simpson v. FMSHRC, supra, at 463. See also: Stenson Begay
v. Liggett Industries, Inc., 11 FMSHRC 887 (May 1989}, aff'd,
Liggett Ind. v. FMSHRC, 923 F.2d 150 (lOth Cir. 1991) of
Secretary ex rel. Harry Ramsey v. Industrial Constructors. Inc.
11 FMSHRC 1585 (August 1989), rev'd, 12 FMSHRC 1587 (August
1990).
The Shot Firing Incident
Mr. Vanover confirmed that when he was assigned to the
longwall he received longwall training, knew how to perform his
job as a longwall technician, and felt comfortable doing his job
(Tr. 13-18). Mr. Vanoverus deposition testimony reflects that he
was aware of the purpose of the blasting which took place on June
23 and 24, 1992, and he acknowledged that the conditions which
required blasting had been known and discussed for a week or two
(Depo. Tr. 13 . When asked what he expected of Mr. Hensley,
Mr. Vanover responded 91 They just shot two days, you know. They
(sic) wasnPt nothing to be done then. It was already over with"
(Depo. Tr. 13).
Mr. Vanover 8 s opinion that the shots were somehow "illegal"
is unsupported. To the contrary, the credible and unrebutted
evidence presented by the respondent establishes that proper
safety procedures were followed in firing the shots, and that the
respondent's shot firers are licensed and experienced. Shield
technician Roberts, Mr. Vanover's fellow worker on the longwall,
testified credibly that he was aware of the shots, that he was
assigned to watch the break to insure that no one came through
the area, and that he did not fear for his safety, even though he
was closer to the shot than Mr. Vanover (Tr. 239).

2539

The credible and unrebutted testimony of respondent's safety
director Bauer reflects that he conducted an investigation of the
incident after learning about it during a discussion with Larry
Smith in August, 1992. Mr. Saurer testified that he determined
that a single shot of approved explosive was set off approximately 100 to 200 feet outby the longwall face, and that the area
had been rock dusted and proper methane and ventilation checks
were made before the shot was fired. He also testified that the
standard voice warnings were made by the shot firer.
It would appear from the evidence in this case that the shot
or shots which took place in June, 1992, were isolated and
controlled incidents" and Mr. Vanover confirmed that he could not
recall similar occurrences before or after the time these shots
were fired. I also take note of the fact that this incident is
not included among the previously noted anonymous complains
lodged with 1-iSHA on August 25 1 1992, which included the use of
explosives and the alleged transportation of explosives on a
mantrip. I also note the absence of any testimony from any other
miners working at the face at the time of the shots.
Mr. Vanover testified that his greatest concern was the dust
generated by the shots in question. Mr. Roberts confirmed that
the dust generated by the shots went down the return toward the
face area where Mr. Vanover was working and that the dust lasted
"maybe for a little while" (Tr. 240). Mr. Vanover was working at
the longwall face while coal was being cut and he claimed that he
could "feel the jar" of the shot, smelled the amonia used for the
shotu and observed the dust generated by the shot coming down the
face. There is no evidence that the work taking place at the
face was interruptedp that the shots adversely affected the
miners 't:'JOrking at ·the face or placed them at riskQ or that anyone
complained.
Although Mr. Vanover testified that he "almost quit" when
the blasting occurred because he was afraid (Tr. 44)! he did not
so. Insteadv he continued working after the shots were fired 1
and apparently made no further complaints about the matter. As a
matter of factv Mr. Vanover was unsure as to when he actually
complained to Mr. Hensleyr and as previously noted, Mr. Vanover
acknowledged that he 01 kind of complainedff' to Mr. Hensley" and
simply told him that he u1 didnut like it. It seems to me that if
Mr. Vanover truly believed that the shots were life threatening
and placed him at immediate risk, he would have protested more
vigorously or at least decided that it was time to end his
employment at that time. Instead, he continued working,
requested to go on vacation two or three days before it was to
begin, and then took a two-week vacation before deciding not to
return to work. Under all of these circumstances, I conclude and
find that Mr. Vanover's asserted fears regarding the underground

2540

shot firing in question are not reasonable or credible and were
not, wholly, or partially, the proximate cause of this decision
to quit his job.
The transportation of Explosives on a Mantrip
I have previously concluded that there is no credible
evidence to establish that Mr. Vanover ever complained about the
alleged transportation of explosives on a mantrip. Even if he
had complained, I further concluded that the respondent acted
with reasonable promptness in addressing the matter, and I took
note of the fact that an MSHA inquiry failed to disclose any
evidence that explosives were transported on a mantrip.
It is uncontradicted that the incident in question, if it
occurred, was only a one-time occurrence that was not ignored by
the respondent. Further, the evidence presented by Mr. Vanover
regarding this incident is somewhat contradictory and raises
doubts my mind as to whether any explosives were in fact
transported on a mantrip. Mr. Vanover acknowledged that he never
actually saw any explosives in the bag that was purportedly used
to transport them, and he conceded that the bag could have been
empty. Further, although Mr. Vanover testified that the
explosives were being transported on an incoming mantrip, Larry
Smith testified that they were being transported on a mantrip
going out of the mine.
The incident in question allegedly occurred on June 23,
1992, and Mr. Vanover testified that it scared him when he found
out about it at the time the bag purportedly containing the
explosives were taken off the mantrip he was on that was going
out
the minep and transferred to another mantrip that was
going to the face (Tro 32-35). Mr. Vanover testified that he was
·told by others that the bag contained 01 powder 11 (Tr. 34).
He also
testified that he was on the mantrip with twenty other miners
when the transfer was made. Miner George Smith, who was on the
mantrip 0 testified that the assumed that Mr. Vanover was aboard,
but did not see him. Mr. Smith testified that he did not see any
dynamite or any dynamite container. Larry Smithc who was on the
same mantrip 1 testified that the bag was transferred to a mantrip
going out of the mine, and not to the face as testified by
Mr. Vanover and George Smith.
Mr. Vanover testified that the incident "definitely scared"
him when he found out about it because he nhad dealt with powder
before" (Tr. 34). He stated that he "wanted to quit" at that
time because he believed it might happen again (Tr. 131-132). He
then stated that "I don't knovl whether I would have quit over
that incident" (Tr. 132). When called in rebuttal during the
second day of the hearing Mr. Vanover was asked whether this
incident caused him to quit his job. He responded "not exactly,
but that helped" (Tr. 291}. He also acknowledged that the

2541

incident occurred almost a month before he quit, but that "Just a
little bit of everything, the dust and stuff", impacted on his
decision to quit.
On the facts and evidence here presented, I conclude and
find that the respondent did all that was possible to address the
complaint brought to its attention by Larry smith well after the
alleged incident in question and after Mr. Vanover quit his job.
I further conclude and find that Mr. Vanover's asserted fear over
this isolated incident was less than reasonable, particularly
since there is no credible, reliable, or probative evidence to
establish that explosives were being transported on the mantrip.
Even if they were, and even if I were to accept Mr. Vanover's
contention that he was frightened, I would find that any fears he
had at that time would not have extended to the time he made the
ultimate decision to quit. In short, I reject as less than
credible or reasonable Mr. Vanover's suggestion that his
frightened state of mind when _he learned that explosives were
transported on a mantrip influenced his decision to quit, or
caused him to quit his job approximately one month after that
alleged event.
The Longwall Dust Problems
Mr. Vanover confirmed that he transferred to the longwall
first shift in approximately March of 1992, some four months
prior to his quitting on July 20, 1992. He testified that at the
time he was contemplating whether to quit his job, he did not
believe that the dust and ventilation conditions would ever
improve because they had existed unchanged for the entire twelveand-one-half years that he worked for the respondent (Tr. 43-44).
I find this testimony to be rather incredible and totally lacking
evidentiary support. It is also contrary to Mr. Vanoveris
sworn deposition testimony of March 8, 1993, where he testified
that prior to his assignment to the longwall section he never had
any problems with the respondent regarding any safety matters and
had no complaints before he took the job of longwall technician
(Depo. Tr. 5). Mr. Vanover further testified that the first time
he ever complained to anyone about dust was 11 shortly after" or
09
about a month and a half 11 after the longwall was placed in
production (Depo. Tr. 8}.
In stark contrast to his general overall indictment of the
respondent;s efforts to address his complaints, Mr. Vanover
confirmed that foremen Blevins and Turner made an effort to
control the dust by hanging ventilation curtains, and that
Mr. Turner tried his best to address his dust complaints
(Tr. 25, 67). Mr. Vanover also confirmed that there were several
occasions when Mr. Osborne and Mr. Turner stopped production at
his request to address the lack of water, and that shear
operators James Hacker and Bill Wilson shut the shear down for a
lack of water. During his deposition testimony, Mr. Vanover

2542

stated that "Randy Turner and them, they was pretty good about,
you know, trying to keep you out of the dust and stuff"
(Depo. Tr. 16).
Mr. Vanover testified that shortly before taking his
vacation he complained to Mr. Begley about the lack of water
pressure on one of the drum sprays. Mr. Osborne responded by
stopping the shear and instructing Mr. Begley to check the water
pressure. Mr. Begley found only 40 pounds of pressure and
indicated that it would be repaired on the third shift and
allowed it to continue to be operated. Mr. Vanover asserted that
it was not repaired when he came to work the next morning, and he
indicated that this incident was the "last strawn that prompted
his decision to quit (Tr. 43-44). However, on cross-examination,
Mr. Vanover admitted that longwall production did in fact stop
and that Mr. Osborne addressed his complaint about the lack of
water pressure (Tr. 69-70). Mr. Begley testified credibly that
he checked he water pressure on two occasions on the day in
question and that he shut the shear down and repaired a broken
and missing water spray (Tr. 193-194).
Mr. Vanover confirmed that there were other occasions when
Mr. Osborne and Mr. Turner stopped production of his request to
address water problems, and that shear operators James Hacker and
Bill Wilson also shut the shear down for similar problems
(Tr. 69-70). Mr. Hacker confirmed that it was a practice to stop
the shear to clean or repair the water sprays, and that he would
stop it if anyone complained about the dust (Tr. 326, 328).
Mr. Vanover confirmed that the longwall shields were in
working order and had sufficient wateru that 8 inch water lines
were used to supply the mine with waterv and that the mine had
fans large enough to provide the required ventilation and that
the equipment and the means to control the dust were available
(Tr. 65-66). Notwithstanding all of this, Mr. Vanover was of the
opinion that the respondent just "didn't get it done" (Tr. 66).
Mr. VanoverRs principal complaint about the dust appears to
be the asserted lack of sufficient water pressure on the longwall
sprays to keep the dust down. Mr. Vanover alluded to
insufficient air f but he indicated that 81 every once in awhile the
air was insufficient to blow the dust out" (Tr. 24). Although it
is true that the longwall shear cut in both directions at one
timeQ which increased the dust conditionsg this practice was
discontinued before Mr. Vanover quit and the dust control plan
was amended and provided for face passes to be made in only one
direction from the tailpiece to the headpiece, except for the
last 120 feet at the tailgate where the cut is allowed to be made
from the headpiece to the tailpiece.
Longwall manager Tye testified credibly that the new
ventilation and dust control plan became effective in June, 1992,

2543

and that it was adopted because of the ventilation problems
experienced under the 1991 plan. Mr. Tye confirmed that the new
planj which was in effect at least a month before Mr. Vanover
quitu provided for an increase in the number of water sprays,
increased water pressure on the sprays, and only one directional
cutting on the face. Mr. Tye also confirmed that the respondent
took additional measures to lessen the miner's exposure to dust,
including the purchase of additional dust control and protective
equipment. Under all of these circumstances, it appear to me
that the dust conditions which had existed at one time on the
longwall under the prior plan when two-directional cutting
was being done, had improved at least a month or so before
Mr. Vanover decided not to return to work.
Although shear operator Brock stated that the dust
conditions were still "severe" at the time Mr. Vanover quit, he
confirmed that nthere is plenty of air and water currently" at
the mine. He also confirmed that he worked on a different shift
when Mr. Vanover left, had not worked with him for at least four
or five months prior to his quitting, and that he had no personal
knowledge of the mine conditions on the first shift at the time
Mr. Vanover quit (Tr. 308). Mr. Brock also confirmed that at the
time one-directional cutting was adopted, the respondent
installed additional water systems and increased the water and
ventilation pressures at the face (Tr. 309). Although Mr. Brock
stated that it was dusty "when the first longwall panels were
being minedn, he confirmed that "step-by step" improvements
were made and that the conditions "definitely improved"
(Tr. 310, 314).
Heavy concentrations of dust downwind of a shear that is
cu.t:t.ing coa2. a:c <:he face is not r in my view r unusual. The
::.ncreased concent:::::·C:.·cions of dust downwind of t.he shear would
appear ·to Joe a normal and. inherent by-product of the longwall
mining method in use, and the ventilation plan should provide the
necessary provisions to insure adequate dust control. That is
why I believe the respondent 6 s longwall dust control plan
ExhibL: G~Bj, prohibits longwa.ll personnel from positioning
·themselves down-vlind of t.he shear while coal is being cut or
downwind. of t.he shields when they are being moved.
Larry Smith •":est.ified ·that the respondent tvould only respond
the dust a.nd. vJater problems when an inspector was present, and
he suggested that he quit over these conditions. However, when
called in rebuttal after the first day of the hearing, Mr. Smith
admitted that he quit after receiving a layoff notice. He also
confirmed that he filed an unemployment claim against the
respondent but abandoned his claim after he failed to appear at a
hearing before a referee. Having viewed Mr. Smith's demeanor in
the course of the hearing, and notwithstanding his assertion that
he had "no bad feelings" against the respondent, I believe that
quite the opposite is true. Mr. Smith appeared hostile and
·:c.c~

2544

antagonistic toward the respondent and I believe that he would
color his testimony to place the respondent in the worse possible
light. In short, I find him to be a less than credible witness.
Contrary to Mr. Vanover's suggestion that the respondent
expected its employees to work downwind of the shear, the
respondent's credible and unrebutted evidence establishes quite
the opposite. Longwall manager Tye testified that he cautioned
Mr. Vanover about going downwind of the shear and working there
in the dust (Tr. 90, 239-40, 259). Mr. Tye believed that
Mr. Vanover would not be exposed to excessive dust if he stayed
outby the shear and the area downwind.
Mr. Begley and Mr. Osborne denied that anyone was required
to be downwind of the shear in order to perform work.
Mr. Osborne confirmed that he has observed people downwind of the
shear and ordered them out after informing them they were not to
be there (Tr. 225). Mr. Sizemore confirmed that on two
occasions, an inspector has cited employees after observing them
downwind of the shear.
Mr. Begley confirmed that after observing Mr. Vanover
downwind of the shear, he ordered him out and informed him that
this was not permitted (Tr. 190}. Mr. Vanover confirmed that on
one occasion Mr. Begley told him that he was not to be downwind
of shear {Tr. 90).
I find no credible evidence to establish that Mr. Vanover
was required or assigned to work downwind of the shear while it
was cutting coal at <the face. Although he suggested during his
direct testimony that: he t'lias consistently required to worl(
downwind of the shear
t.he dust, on cross-examination he
testified that ·this only occurred ou
timesa 9 v and when asked if
this were a matter of routine or personal choice, he replied "I
guess it was" (Tr. 86). Further, when called in rebuttal during
the second day of the hearingv Mr. Vanover changed his story and
stated that he worJ{ed downwind of the shear on every shift since
longwall started
production because he thought this was
part of his job (Tro 278-279)" I find Mro Vanover's assertion
that
was required to work downwind of the shear on every shift
because he was required to as a part of his job to be lacking in
evidentiary supportg and
casts reasonable doubts in my mind on
his credibilityo

The respondent 1 s credible evidence establishes that working
downwind of the shear is contrary to the approved ventilation and
dust control plan and company work rules. Mr. Vanover
acknowledged that he was aware of these prohibitions, and I
reject as less than credible his suggestion that he worked
downwind of the Shear with the full knowledge and consent of
management because it was expected of him or was required as part

2545

of his job. Indeed, Mr. Vanover testified that no one ever told
him to go downwind of the shear (Tr. 90).
Mr. Hacker confirmed that Mr. Vanover would be downwind of
the shear at the time it was cutting in both directions, but that
it would be illegal for him to be there after the one-directional
cutting was adopted (Tr. 330). Although Mr. Hacker believed that
Mr. Vanover needed to be downwind to advance the shields and to
keep up with his fast paced cutting, he confirmed that if asked
to do so by the shield technician because of a dust or other
problem, he would stop the shear (Tr. 328). He confirmed that he
and Mr. Vanover are friends and that if Mr. Vanover wanted him to
shut the shear down because of a problem he would have done so
(Tr o 332) •
While it may be true that some technicians had difficulty
keeping up with the pace of the shear that was cutting the face,
particularly during the time that cuts were being made in both
directions, I find no credible evidence that Mr. Vanover had such
a problem when he decided to quit. I take note of the fact that
Mr. Hacker was not working on the same shift as Mr. Vanover at
the time Mr. Vanover quit. Mr. Hacker indicated that he had not
worked with Mr. Vanover for three or four months before he quit
(Tr. 327). Under the circumstances, any problems that
Mr. Vanover may have had keeping up with Mr. Hacker would have
occurred well before he quit, and I find it less than credible
and unreasonable for him to have believed that he would have
encountered the same problems if he had returned to work.
The respondent has acknowledged that it had some longwall
ventilation oroblems
result:ed
an excessive dust violation
on August 28: 199 • However? Mr. BauerPs credible and unrebutted
testimony reflects
as
result:
violation 1
ventilation changes were made in Octoberu and Decemberu 1991,
increasing the amount of air on the faceu and the two-directional
face cutting was discontinued" Mr" Bauer further indicated that
only two dust violations were issued from Marchu 1992u when
Mro Vanover was first assigned
the first shiftv until he left
July u 1992 0 and ·tha·t cche mine has been
substantial
compliance with the dust plans since Decemberu 1991. He also
indicated that the mine received only one excessive dust
violation on the longwall section from Aprilu 1991v through the
end of Julyv 1992o
Although Mr" Vanover indicated that e•every once in awhile
the air was insufficient to blow the dust out", there is no
evidence that this was a problem when he decided to quit, and he
confirmed that he was unaware of any violations issued at the
mine for inadequate air ventilation (Tr. 118).
Safety technician Sizemore testified credibly about the
remedial measures taken by the respondent as a result of the

2546

October, 1991, dust problems. With the exception of the
September/October, 1991, dust sampling cycle on the longwall,
Mr. Sizemore's unrebutted testimony reflects that the mine was in
compliance with MSHA's allowable respirable dust limitations
before and after the September/October, 1991, period, and from
January through June, 1992. Under all of these circumstances,
I have difficulty accepting as reasonable and credible
Mr. Vanover's contention that he feared for his life
because of the dust conditions on the longwall at the time
he decided to quit his job.
The evidence establishes that Mr. Vanover's meeting with
Mr. Smith and Mr. Bauer took place before he ·filed his
discrimination complaint with MSHA. In the absence of any
evidence to the contrary, I cannot conclude that the respondent
had any ulterior motive in seeking the meeting other than to
learn from Mr. Vanover why he left his job. Mr. Vanover could
have refused to meet with Mr. ·smith and Mr. Bauer, but he did
not. I find Mr. Bauer's explanation as to why he sought the
meeting to be credible and plausible. I also find that
Mr. Bauer's offer to Mr. Vanover to return to work was bona fide
and made in good faith.
After a careful review and consideration of all of the
evidence in this case, I cannot conclude that the respondent
maintained the longwall in such a condition, or allowed
conditions on the longwall to deteriorate to the point where it
would have made it intolerable for Mr. Vanover to continue on in
his employment or to return to work.
The evidence
this case establishes that Mr. Vanover
requested to take leave two or three days before he left work for
a two-week vacationo At the conclusion of his vacation, and
after waiting "until the last minute" (Tr. 20), he decided to
quit his job. As a matter of fact, Mr. Vanover started to return
to work, but instead, drove to the respondent's main office and
told a lady in the office that he was quitting (Tr. 48-49).
Mr. Vanover asserted that he took his vacation to consider
whether to return to work. Given the fact that his refusal to
accept management 1 s offer to return to work was based on his
belief that nothing would ever change at the mine, I find it
rather strange that Mr. Vanover needed more time to ponder the
question. It seems to me that if he truly feared for his life,
or truly harbored a fear that to return to work would place him
at risk, he would have quit sooner than he did. His failure to
do so casts doubts in my mind regarding the credibility and
reasonableness of his asserted reasons for quitting and not
returning to work.
During his direct testimony, Mr. Vanover acknowledged that
when he met with Mr. Bauer and Mr. Smith he informed them that he

2547

intended to enroll in college and that he 11 was done with
Shamrock" (Tr. 20). When called in rebuttal the second day of
the trial, Mr. Vanover was rather equivocal and evasive about his
plans to attend college, and although he admitted to a high
school education, he indicated that he "would never had made it"
in college and knew that he could not read or write well enough
for college work (Tr. 272). Mr. Vanover asserted that he had
been thinking about attending college "off and on" over a period
of time (Tr. 274). It seems to me that if he had any
reservations about his ability to succeed in college, he would
have realized this sooner than he claimed he did.
I conclude and find that Mr. Vanover voluntarily quit his
job for reasons other than a fear for his life, his health, or
his safety. Having withdrawn approximately $56,000, from his
profit sharing account that was completely paid for by the
respondent, I believe that Mr. Vanover decided it was time to end
his mining career and to seek to enroll in college to further his
education and to better himself.
ORDER
In view of the foregoing findings and conclusions, I
conclude and find that Mr. Vanover has failed to make a case of
discrimination pursuant to section l05(c) of the Act, and that he
has failed to establish by a preponderance of the credible and
probative evidence adduced in this matter that the circumstances
under which he voluntarily quit his job and refused the
respondent's offer to return to work constituted a constructive
discharge within the meaning of the anti-discrimination
~revisions of the Act.
Accordinglyu his claims for relief ARE
DENIEDr and his complaint IS DISMISSED.

~~
Administrative Law Judge

Distributiong
Phyllis L. Robinsonu Esq.v P.Oo Box 952, Haydenu KY
(Certified Mail)

41749

Timothy L. Wellsv Esq., Smith & Wells, P.Oo Box 447, Manchester,
KY 40962 (Certified Mail)
/ml

2548

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

DEC 1 71993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
Petitioner

.

CIVIL PENALTY PROCEEDING

0

Docket No. WEST 92-314-M
A.C. No. 04-01924-05527
Docket No. WEST 92-319-M
A.C. No. 04-01924-05529

v.

Docket No. WEST 92-389-M
A.C. No. 04-01924-05530

JAMIESON COMPANY I
Respondent

Pleasanton Pit and Mill
DECISION
Appearances:

Jan N. Coplick, Esq., Office of the Solicitor,
u.s. Department of Labor, San Francisco,
California,
for Petitioner;
William R. Pedderu Esq.u Alamedau Californiau
for Respondent.

Before~

Judge Lasher

In these three proceedings~ the Secretary of Labor (MSHA)
originally sought assessment of penalties for a total of seven
Citations pursuant to Section 110(a) of the Federal Mine Safety
and Health Act of 1977u 30 U.S.C. § 820(a) {1977).
After the commencement of hearing in Pleasantonu Californiau
on May 26 1 1993 1 MSHA moved to vacate Citation No. 3912067 in
Docket No. WEST 92-314-M, for good and sufficient reason and
based thereon this Citation was vacated from the bench (T. 3538). That disposition is here AFFIRMED. The six remaining
citations were litigated.
Preliminary Penalty Assessment Criteria Findings
Based on stipulations received at the hearing, it is found
that Respondent is a medium-sized, one plant, 50-employee, sand
and gravel operation with a history of 36 previous violations
2549

during the pertinent two-year period preceding the issuance of
the citations involved in these proceedings.
It is also found
that Respondent proceeded in good faith after notification of any
violations found to abate such promptly and that Respondent's
ability to continue in business would not be adversely affected
by imposition of reasonable penalties for any violations found
herein.

The Two Safety standards Involved
30 C.F.R. § 56.14107 is the regulation involved in citations
numbered 3912068, 3912072, 3912077, 3912079, and 3912080.
It
provides:
Moving machine parte shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and takeup pulleys, flywheels,
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.

30 C.F.R. § 56.12008 is the regulation involved in Citation
No. 3912075. It provides:
Power wires and cables shall be insulated adequately
where
into or out of electrical compartments.
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.

Respondent challenges the occurrence of the violations
charged by Petitioner 1 Petitioner 1 s position on negligence and
gravity; and the 11 Significant and Substantial 11 (S&S) designations
indicated on three of the Citations.
Docket Noo WEST 92-314-M

citation No. 3912068 (T.JS-79)
This violation consists of a piece of metal which had been
welded at the end of the shaft on the head pulley not being
guarded (T.45, 50, 60-61, 70-71, 75). The shaft with the piece
welded to it is a moving machine part and is thus covered by the
regulation (T. 46). The welding piece protruded 1/16 of an inch
{T. 58).
2550

The hazard created was that a workman's sleeve could be
caught in the moving part resulting in loss of a finger or arm, a
permanently disabling injury (T. 47-51). It was unlikely that
the hazard would have occurred (T. 51, 61-64, 65) since the only
reason an employee would come in close proximity to the hazard
would be for maintenance or for oiling the gearbox (T. 56-58,
70-71, 75).
Respondent's witness, Operations Manager Richard Kelly,
concedes that the part in question was not guarded (T. 60-61).
While he felt that the condition would not pose a danger since
the gear box should be locked out before maintenance was performed, Mr. Kelly also conceded that accidents have occurred
where lockout procedures have not been followed (T. 62, 64).
It is concluded that the violation occurred as charged in
the Citation except that the welded piece stuck out only 1/16th
of an inch.
The violation was obvious and involved, as indicated by the
Inspector, moderate negligence. The violation, which is not
charged to be (S&S), was not likely to result in an injury but
did pose the threat of serious bodily harm had the hazard envisioned come to fruition.
Accordingly, the violation is found
to be moderately serious.
A penalty of $50 is ASSESSED.

This Citation, not designated S&S, alleges that the tail
pulley on the No. 2 feeder was not "adequately" guarded in that
the guard was 0'too far back. eo
Respondent contends ·that the guard system was that which had
been approved by another inspector previously in early 1991 and
that the guard is in compliance with the standard in question.
The Inspector who issued the Citation testified that the
face of the pulley was approximately 12 inches from the edge of
the guard which was a "dangerous" distance since a person's
sleeve could become entangled (T. 83). The pinch point was 20-32
inches (T. 84-85) from the edge of the guard. This, again, was a
distance which could be reached by a person's arm or shovel (T.
84, 87, 91-92, 95). The hazard of entanglement could result in
loss of a body part (arm). The violation was observable by management (T. 88, 114) and thus a result of moderate negligence
(T. 88, 114) and thus a result of moderate negligence (T. 88)
since it had existed for some time (T. 88-89).

2551

Petitioner established three of the four prerequisites of a
"Significant and Substantial" violation by establishing that
there was a violation of the safety standard cited; that there
was a discrete safety hazard (entanglement and loss of a body
part) contributed to by the violation; and that there was a
reasonable likelihood that any injury would be of a reasonably
serious nature (loss of an arm). Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984). There was no showing, however, of a reasonable likelihood that the hazard contributed to would result in an
injury, that is, the third prerequisite of Mathies. Petitioner 1 s
only evidence was the weak testimony of the Inspector at pages 86
and 87 of the transcript which is insufficiently clear as to its
meaning.
such testimony is rejected as remote and not probative.
On the other hand, the testimony of Respondent's witness, that
there was only a mere possibility of injury was clearer and more
credible and such is credited. The S&S designation will be
stricken.
Since it was not reasonably likely that an injury would have
occurred--even though such injury would. have been serious in
nature--the gravity of the violation will be deemed only moderately serious.
Respondent established that to abate a prior citation some
six months previously (T. 106) it installed the guarding system
cited in the instant Citation and there had been no changes
either to the guards or to the location of the pulley during the
interim (T. 106-110). I find and infer from Respondent's evidence that MSHA approved the subject guarding system in approving
the manner of abatement of the previous violation.
In Secretary
v. King Knob Coal Company" Inc.v 3 FMSHRC 1417 (1981) r the Commission generally rejected the doctrine of equitable estoppel.
However, it also viewed the erroneous action of the Secretary
(mistaken interpretation of the law leading to prior non-enforcement) as a. factor tvhich can lbe considered in mitigation of penalt.yc stating~
The Supreme Court has held that equitable estoppel
generally does not apply against the federal government.
Federal Crop Insurance Corp. v. Merrill, 332
U.S. 380, 383-386 (1947); Utah Power and Light Co. v.
United States, 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 the government in some
circumstances. See, for example, United States v.
Georgia-Pacific Co., 521 F.2d 92, 95-103 (9th Circ.
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
~rea of the law.
This restrained approach is buttressed by the consideration that approving an estoppel defense would be inconsistent with the liability

2552

without fault structure of the 1977 Mine Act. See El
Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981).
Such a defense is really a claim that although a violation occurred, the operator was not to blame for it.
Furthermore, under the 1977 Mine Act, an equitable
consideration, such as the confusion engendered by
conflicting MSHA pronouncements, can be appropriately
weighed in determining the appropriate penalty •••.

Accordingly, the doctrine of equitable estoppel will not be
applied to the enforcement action of the Secretary here.
However, the Respondent's evidence in this connection will be considered in mitigation of penalty.
After consideration of such, and in view of the modifications in the severity of the violation discussed above, a penalty
of $10.00 is found appropriate and is here ASSESSED.
Citation No. 3912075

(Te

124-141)

This Citation, as modified, charges that the electrical
cable for the vibrator on the sand tank was not properly fitted
where it came out of the main switch box. The occurrence of the
violation was clearly established. 1
The hazard was that a person could trip on the cable which
was lying on the ground and pull it out of the electrical box
since
was secured only with tape instead of a clamp (T. 126 1
127, 133). Had such hazard occurred, electrocution could result
(T. 127, 129). Since the only miners who had occasion to work in
proximity to the hazard were electricians, the likelihood of injury was unlikely and the Inspector did not designate the violation as "S&S" (T. 127-128, 134). Only moderate negligence was
involved in the commission of this violation (T. 128, 134). The
condition was obvious (T, 127) and should have been checked by
management (T. 128).
Although the occurrence of injury was not likely, had such
an injury occurredv the injury could have been fatal.
The violation is found to be moderately serious and a penalty of $50
(T. 140) is found appropriate and here ASSESSED.

Respondent produced no witnesses.

2553

Docket No. WEST 92-319-M
Citation 3912072 CT. 141-192)
This citation, as modified, is designated "Significant and
Substantial" and charges that the drive chain on the No. 2 scrubber was not adequately guarded to prevent a person from contacting the chain and becoming entangled. Respondent, as previously
noted, challenges the occurrence of the violation, the "S&S "
designation, and the degree of gravity charged. The violation
itself was clearly established. The drive chain in question was
not adequately guarded since there was a gate--not a guard--used
to prevent exposure (T. 145, 146, 147, 148). The entire drive
chain was a hazard since a person could get entangled (by sleeve
or pant's leg) anywhere along the chain (T. 146). The walkway
was less than seven feet from the hazard (T. 178). Persons could
reach the exposed moving chain by opening the gate (T. 147) or by
stepping over the motor (T. 149, 151, 161) and there was footprint evidence observed by the Inspector that persons had done so
{T. 150, 153).
Employees were exposed to the hazard on a daily basis to
perform maintenance work (T. 145, 154, 163, 191-192). Had an
injury occurred from the hazard contributed to by the violation
such would have been permanently disabling or fatal (T. 155).
It
is concluded that a violation occurred and that such was "Significant and Substantial," since as noted herein, there was a reasonable likelihood that an injury would have occurred due to the
frequency of exposure~ the ease of exposureu and the proximity of
exposure to a considerable hazard~ and the evidence that there
had been exposure
such as evidenced by the footprints observed
by the Inspectoro The other elements of Mathies, supra, have
been delineated herein above. The violation is found to be
serious.
The violation was visible and obvious and the Inspector's
determination of moderate negligence is found warranted. A penalty of $400 is found appropriate and is here ASSESSED.
Docket No. WEST 92-389-M
Citation No. 3912077 CT. 192-221)
This "S&S" Citation alleges that the tail pulley on the No.
14 conveyor belt was not adequately guarded.
While there was a guard in place, it was not adequate since
the nip point on the tail pulley could be reached (T. 196, 202).
Thus, assuming as Respondent maintains (T.214, 217}, that the

2554

distance from the edge of the guard to the nip point was 34
inches, a miner could reach the nip point or could reach it with
a tool (T. 197, 198, 199, 200, 211}.
It was not reasonably likely that a workman would sustain
injury from contacting the nip point (T. 200, 201) even though
employees did engage in "cleaning material spillage" on a daily
basis. There was only a "possibility" that an employee might try
to dislodge materials by reaching into the hazardous area deliberately (T. 200, 201) and such latter factor would be the result
of "an extremely conscious effortn (T. 214, 215). Official notice is taken that a person with an advertised 34-inch shirt
sleeve length would not actually have an arm- and hand-length of
34 inches (see T. 214-215, 218-218), but rather approximately 30
inches.
The conditions described constitute a violation of the
standard, and resulted from a moderate degree of negligence on
the part of Respondent (T. 203) since it was obvious and since
supervision failed to check the installation of the guard to
determine if it had been installed correctly (T. 203, 204).
Based on the foregoing findings, it is found that the violation was only moderately serious since it was unlikely that
injury would ensue from exposure to the hazard. The "gravity" of
the violation indicated in the citation will be modified to
reflect this change and to delete the "S&S" designation. Upon
consideration of the various penalty assessment factors, a penof $50
here ASSESSED.

This "S&S" Citation charges that the tail pulley on the No.
28 conveyor belt was not adequately guarded to prevent a person
from getting
hand or shovel caught. The violation was
clearly established.
The nip point was only 25 inches from the guard (T. 231,
241) and this created a hazard since it could be contacted by a
miner (T. 226), since a miner possibly could reach it by bending
down or kneeling and then by leaning forward and reaching it with
his body or a tool (T. 226, 238-239, 245). The nip point could
not be reached by a standing person (T. 242).
The hazard was in an area where miners performed cleaning
duties (T. 227). Miners were exposed to the hazard on a daily
basis (T. 227). Had an injury occurred as a result of the hazard
contributed to by the violation, it could have resulted in the
loss of a miner's arm (T. 228) or other serious injury (T. 229).

2555

Moderate negligence was involved since the violation should
have been observable by management (T. 228, 240).
From the evidence of record it is concluded that it was
possible but not "reasonably likely" that an injury would occur
as a result of the occurrence of the hazard contributed to by the
violation (T. 237-239, 242, 245). The record lacks probative
evidence of the third element of the Mathies "S&S" formula and
this designation on the citation will be stricken. Likewise, the
gravity of the violation will be modified to show that an injury
would be "unlikely" to occur.
Upon consideration of the various mandatory assessment
factors, a penalty of $50 is found appropriate and is here
ASSESSED.
ORDER
1.
VACATED.

Citation No. 3912067 in Docket No. WEST 92-314-M is

2.
citation No. 3912080 in Docket No. WEST 92-314-M is
MODIFIED to change the "Gravity" designation in paragraph 10 A
thereof from "Reasonably Likely" to "Unlikely"; and to delete the
"Significant and Substantial" designation in paragraph lOC.
3.
Citation No. 3912077 In Docket No WEST 92-389-M is
MODIFIED to change the "Gravity" designation in paragraph lOA
thereof from uiReasonably Likelyun to 9'Unlikely and to delete the
0
' Significant and Substantial no
designation in paragraph lOC.
4.
Citation No. 3912079 in Docket No. WEST 92-389-M is
MODIFIED to change the «'Gravity" designation in paragraph lOA
thereof from "Reasonably Likely" to "Unlikely" and to delete the
"Significant and Substantial" designation in paragraph lOC.
~.
Respondent SHALL PAY to the Secretary of Labor within
30 days form the date of issuance hereof the penalties hereinabove assessed in the total sum of $510.00.

,..

>//?· _

c

_.

. /

a v4~P-A-c /<?~
.T

"'}""

··;·

.,

Michael A. Lasher, Jr.
Administrative Law Judge

2556

Distribution:
Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 941052999
(Certified Mail)
William R. Fedder, Esq., a Professional Corporation, 2447 Santa
Clara Avenue, suite 201, Alameda, CA 94501 (Certified Mail)

ek

2557

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 2 0 1993
CONSOLIDATION COAL COMPANY,
INCORPORATED,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 92-873-R
Order No. 3717931; 4/21/92

v.

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

Arkwright Mine No. 1

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-1066
A.C. No. 46-01452-03867

v.
Docket No. WEVA 92-1094
A.C. No. 46-01452-03868

CONSOLIDATION COAL COMPANY
INCORPORATED,
Respondent
DECISION
Appearances:

Daniel E. Rogers, Esq., Consolidation Coal
Company, Inc.r Pittsburgh, Pennsylvania,
for Contestant/Respondent;
Charles M. Jackson, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Respondent/Petitioner.

Beforeg

Judge Barbour

In these consolidated cases arising under the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 u.s.c.
801 et seg., Consolidation Coal Company, Inc. ("Consol'1 ) is
contesting the validity of an order issued pursuant to section
104(d) (2) of the Act.
30 u.s.c. 814(d) (2). The order alleges a
"significant and substantial" violation of mandatory safety
standard 30 C.F.R. § 75.1725(a) caused by Consol's "unwarrantable
failure" to comply with such standard. The order was issued
shortly after the issuance of a citation alleging a S&S violation
of the same standard. Consol also is disputing the validity of
the this citation. A hearing was held in Morgantown, West
Virginia.

2558

At the commencement of the hearing and as relevant to these
matters the parties stipulated as follows:
1.

Consol is the owner and operator of the Arkwright No. 1
Mine.

2.

The operations of Consol are subject to the
jurisdiction of the Mine Act.

3.

This case is under the jurisdiction of the Commission
and its ALJs pursuant to sections 105 and 113 of the
Mine Act.

4.

The individual whose signature appears in block 22 of
Citation No. 3717929 and Order No. 3717931 was acting
in his official capacity as an authorized
representative of the Secretary.

5.

True copies of the citation and order were served on
Consol or its agent as required by the Mine Act.

6.

The total proposed penalty will not affect Consol's
ability to continue in business.

7.

The copies of the citation and order attached to the
Secretary 1 s petition for civil penalty are authentic
with all appropriate modifications or abatements.

Tr. 11-13.
~ACTUAL

AND PROCEDURAL BACKGROUND

During the midnight
B~OO a.m. shift on Apri
21 1 1992 9
MSHA Inspector Richard McDorman conducted a regular inspection at
Consol 0 s Arkwright No. 1 Mine, an underground coal mine, located
in Monongalia Countyu West Virginia.
McDorman was accompanied by Consol 9 s safety escort Harold
Moore and minersi representative Denise Russell. After the group
visited the 11 left longwall sectionu they arrived at a crosscut
wherein the main south high voltage splitter box 1 was located.
McDorman observed that four bolts were missing from the lids on
top of the splitter box and other bolts were broken off in their
threaded holes. Pursuant to section 104(a) of the Mine Act,
30 U.S.C. § 814(a)v McDorman issued Citation No. 3717929 1 because
the splitter box was not maintained in safe operating condition
in accordance with section 75.1725(a), a mandatory safety
standard for underground coal mines. Section 1725(a) provides:
1

A splitter box allows a single incoming power cable to be split or
divided to accommodate two separate output power cables.

2559

"Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be removed from service immediately."
Moore lifted a lid with one bolt missing to see what needed
to be repaired and the incoming power to the splitter box was
immediately 11 knocked" by a "finger" safety switch installed in
the lid. After the power went off, McDorman told Moore he should
not restore power to the splitter box.
Moore went to the paging telephone located at the tenant
bore hole 2 to call the maintenance shop to report what had
happened and he heard people on the paging telephone and on the
jeep radio "hollering 11 that they had lost power. According to
Moore, Gary Neely, the shift foreman, indicated that the supply
motormen had lost power to operate the locomotives on the supply
tracks. Motormen hollered that the locomotives were losing the
air on their brakes. Gary samples, the foreman on 11 left
longwall section, yelled that he needed power. The tippleman had
only partial power. All the belts had gone down. All AC power
was off and most DC power was off. Moore told the shop that he
needed a mechanic to come look at the splitter box.
Moore returned to the splitter box and told McDorman that he
needed to turn the power back on for the safety of consol's
employees. Moore explained that there was no problem with the
splitter box, the 11 left longwall needed power, and miners were
stranded on sections without vehicles to transport them in case
of injury. McDorman warned Moore that turning the power back on
would violate section 1725(a) and that he would write another
violationo When the mechanics arrivedr Moore directed them to
t.urn the power back 3
o

Abou·t 15 minut.es after the power had been restored u Robert
Lauklinv the maintenance foreman, arrived at the splitter box,
sent one of the mechanics to the shop for parts, and then had
another mechanic knock off the power so the lids on the splitter
box could be :E
McDorman told Moore he was ready to go and they went to the
mine safety
Pursuant to section 104(d) (2) of the Mine
Act McDorman then issued Order No. 3717931 because Moore had
known the splitter box was
unsafe operating condition, had
known the requirements of section 1725(a), and nonetheless had

2

The tenant bore hole brings power from above ground to the bottom of
the mine. At the bottom, there is a power set to turn the power on and off
and a circuit breaker. The power cable goes to the splitter box located
approximately 100 feet (one crosscut away) from the tenant bore hole.
3

The mechanics are electrically certified by the state.

2560

ordered the splitter box into operation, creating the same
likelihood and severity of potential injury that existed when the
citation was issued.
CITATION NO. 3717929

McDorman issued Citation No. 3717929 for failure to maintain
the splitter in safe operating condition. In his opinion, the
lid to the splitter box did not have a sufficient number of bolts
to prevent it from being lifted. According to testimony at the
hearing, the splitter box is a yello~ metal box approximately 15
to 22 feet long, 4-1/2 to 10 feet wide, and 3-1/2 to 4-1/2 feet
high, with three to five lids on top weighing 20 to 70 pounds
each. One-half to three-eighth-inch bolts keep the lids securely
attached atop the splitter box. The splitter box receives high
voltage power, i.e., 7200 volts AC, and separates the power to
supply two sections of the mine. A 4 aught (4/0) cable enters
one end of the splitter box supplying power. Two similar cables
exit the other end. There is a layer of insulation around the
4/0 cable until it enters the splitter box. Inside the box, the
insulation is removed and there are bare high voltage wires
connected to metal bus bars, or termination points. Both of the
ongoing cables are connected to the same bus bars or connection
points. There are high voltage warning signs at the splitter box
and the cable is fenced to keep people away from it.
McDorman testified that he never has seen a splitter box
without some type of retaining device on the lids. Michael
Kalich, an MSHA electrical inspector, testified that he never has
observed a splitter box without its lids bolted or welded to the
framework of the splitter box. McDorman testified that there
were three lids on top of the splitter box weighing about 20
pounds each and
was one bolt on each side of each lid
ioe. two bolts
lid or 6 bolts per splitter box. McDorman
stated that since he found four missing bolts, one lid had no
bolts to prevent it from being removed. Moore testified that
there were five lids on top of the splitter box weighing 40 to 60
pounds each and there were two bolts on each side of each lid 9
i.e.r four bolts per lid. Lauklin testified that there were
about five lids on top of the splitter box weighing about 60 to
70 pounds each and there was one bolt on each side of each lidr
i.e. 9 two bolts per lid. Regardless of the number
lids on top
the splitter box and the number of bolts in each lid 1 it is
undisputed that Moore was able to lift one lid.
When the splitter box is energized, no one is permitted to
lift a lid. The splitter box has to be deenergized before a lid
is raised by going outby the splitter box to the next device that
would deenergize the cable that feeds the splitter box and then
4All

electrical installations at the mine are painted yellow.

2561

deenergizing, locking, tagging, and grounding it to bleed off the
capacity charge5 to the cable before opening the lid. Under
these conditions, a certified electrician is permitted to unbolt
and remove a lid.
Each lid on the splitter box is equipped with a lid switch,
which is a safety device to deenergize incoming power to the
splitter box when a lid is lifted. When the lid is down, the
finger-style switch is bent and the circuit is closed. When the
lid is lifted, the spring-loaded lid switch raises to a vertical
position and opens the circuit which deenergizes the power at its
source. Lid switches are generally made of plastic or metal and
they fail on occasion. Inspector McDorman has seen lid switches
that did not work on several occasions on similar high voltage
split·ter boxes. Kalich has encountered eight switches that did
not work.
If a lid switch did not work or did not operate the circuit
properly, then the components. inside the splitter box would not
be deenergized. They would carry the full voltage of the system.
Even if the lid switch worked properly and turned off the power,
the high voltage cable would still have a capacity charge in it
that would continue to energize the components of the splitter
bOXo 6

'l'HE VIOLATION

As noted, Section 75.1725(a) requires stationary equipment
to be maintained in safe operating condition and unsafe equipment
tc be removed from service immediately. I find lifting the lid
could allow a person's hand or arm into the splitter box, and
ranging from a slight electrical shock to an electrocution
result:
I conclude therefore that the missing bolts u which
litated unauthorized lifting of the lid of the splitter boxu
rendered the equipment unsafe and therefore that Consol violated
mandatory safety section 75.1725(a) as charged in the citation.
o

5

After the power is turned off and before the cable is grounded, the
high voltage cable stores a capacity charge that continues to energize
components of the splitter box.
6

one could reasonably expect to find from 0 to 100 milliamps in capacity
charge on the cable. A SO milliamp shock would be severe enough for a person
to lose feeling in his hand. Further, if the charge was a 100 milliamp shock,
under wet conditions, it could be fatal.

2562

A "significant and substantial" violation exists if the
"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." 30 u.s.c. 814(d). The
Commission has held that a violation is significant and
substantial within the meaning of section 104(d) (1) 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 further explained:
In order to establish that a violation of a mandatory
safety 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 -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
The Commission also has held that the significant and substantial
nature of a violation must be determined in the context of
continued normal mining operations. u.s. Steel Mining Co.,
6 FMSHRC 1573-1574 (July 1984). The Commission has emphasized
that "the contribution of the violation to the cause and effect
of a mine safety hazard is what must be significant and
substantiaL ou U.s, Steel Mining Co, , 6 FMSHRC 1834, 183 6 (August
1984) (emphasis omitted),
The hazard presented by the absence of bolts is unauthorized
entry into the splitter box, which could result in electrical
burns, electrical shock? or electrocution. Kalich testified that
since 1970, there have been 70 miner fatalities involving high
voltage and since 1985, there have been 2 fatalities involving
miners who opened boxes while the circuits were energized.
In
one instance, the lid switch did not work.
In the other the
circuit was defective,
In addition, there have been fatalities
due to unauthorized access of high voltage equipment, e.g., a
belt cleaner entered a high voltage compartment and was
electrocuted and a utility man entered a high voltage room and
was electrocuted. I credit Kalich's testimony and I find that
even if the lid switch worked and deenergized the power, while
the potential severity of an injury might be lessened, the
likelihood of an injury occurring would not be reduced because of
the capacity charge on the cable. Thus, the unbolted lid
contributed to an electrical shock hazard and whether the shock

2563

was caused directly by the current or by the capacity charge the
resulting injury was reasonably likely to be serious in nature.
In addition to the underlying violation, the discrete safety
hazard and the reasonably serious nature of the potential injury
caused by the violation, I conclude that the injury was
reasonably likely to occur. 7 The missing bolts facilitated and
encouraged unauthorized entry in that in the event of a
malfunction requiring entry into the box, the temptation would
have been for a miner immediately to raise the lid and correct
the problem rather than to wait for a certified electrician to
unbolt the lid and begin repair work. I am convinced this ease of
access made an electrical injury reasonably likely, which I
assume is why the lids were bolted in the first place. In other
words, based on the occasional failure of lid switches, the
possible presence of a capacity charge on the cable, and the
previous fatalities resulting from unauthorized entry into other
high voltage boxes, I find that a reasonable likelihood existed
that unauthorized entry into the splitter box would have resulted
in a serious injury if normal mining operations had continued,
and I find that the violation was S&S.
CIVIL PENALTY

Because a significant electrical injury or even a fatality
could have resulted for the violation; I conclude the violation
was serious.
In addition, I agree with McDorman that it was due
to Consol's negligence. The mine has a large history of previous
violations.
The Secretary has proposed a civil penalty of $288
for the violation. Given the gravity of the violation, the
mineQs large history of previous violations and Consol 0 s large
sizer I conclude that a civil penalty of $500
appropriate.
ORDER NO. 3717931

Inspector McDorman issued Order No. 3717931 for putting the
cited splitter box back into operation following its removal from
service minutes earlier pursuant to the citation. Moore knew
that McDorman considered-the splitter box to be in unsafe
operating condition and that turning the power back on would
violate section 1725(a). Howeveru Moore testified that he
ordered the splitter box back into operation to alleviate safety
concerns
other areas of the mine. The violation in the order
was attributed to a high degree of negligence on Consol's part.

7

The splitter box is located 25 to 35 feet away from the supply track.

2564

THE VIOLATION

Moore decided unilaterally to restore power to the splitter
box without first having the lid bolts replaced. In so doing he
returned the splitter box to service in an unsafe condition.
Because the splitter box was then not maintained in safe
operating condition, McDorman was right to again cite consol for
a violation of section 75.1725(a). I conclude that issuance of
the separate order alleging a violation of the same standard was
valid and that the violation existed as charged.

The second violation of section 75.1725(a) was not S&S in
that injury was not reasonably likely to occur. Rather, entry
into the splitter box by untrained and unauthorized personnel was
highly unlikely after the power was restored. The condition of
the splitter box was known to everyone, McDorman was on the scene
and repair work was underway within 15 or 20 minutes.
UNWARRANTABLE FAILURE

Under section 104(d) (1) of the Mine Act, 30 u.s.c.
814(d) (1), a finding of "unwarrantable failure" may be made if
a violation is caused by the operator's unwarrantable failure to
comply with a mandatory safety standard. The Commission has
defined unwarrantable failure as "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 and Ohio Coal
Co., 9 FMSHRC 2007, 2010 (December 1987). In Emery Mining the
Commission stated~
§

is defined as ~not justifiableu or
\Failure 1 is defined as ~neglect of an
assigned, expected, or appropriate action. 9 Webster's
Third New International Dictionary (Unabridged) 2514,
814 {1971) ... (N]egligence is the failure to use such
care as a reasonably prudent and careful person would
use and is characterized by ~inadvertence, n
'thoughtlessness,~ and ~inattention.
Black's Law
Dictionary 930-31 (5th ed. 1979). Conduct that is not
justifiable and inexcusable is the result of more than
inadvertenceu thoughtlessness, or inattention.
~unwarrantablec
~inexcusable. 0

9

9 FMSHRC at 2001.
Withdrawing the splitter box from service shut down power on
the entire south side of the mine. Moore intentionally placed
the cited splitter box back into service to remedy safety
concerns and Moore told McDorman that he would turn the power

2565

back on and take another violation rather than jeopardize the
safety of his employees.
One and one-half hours before citing the splitter box,
McDorman had visited the 11 left longwall section and had spoken
with miners who told him that the shields were digging into the
soft bottom. Roof rock that was in the pan line of the longwall
indicated to McDorman that roof conditions were poor, but he did
not observe any unsafe roof conditions that would have required
the longwall to continue operations after the splitter box shut
down power. On the other hand, Moore testified that in the
previous 2 to 3 weeks, the longwall had been mined continuously
every shift except on Sundays to try to keep control of the bad
roof. Moore stated that the longwall was in a major fault area
with extremely bad bottom and roof conditions, and large rocks
and loose shale were falling into the pan line and over the top
of the pan line out into the walkways. He also stated that the
shields could not advance and the tailgate was impassable. Moore
testified that in this situation, the rock was removed by running
the longwall to keep the pan line moving until the rock was small
enough to go into the crusher. Otherwise, the rock had to be
broken with a sledgehammer or blown up with rock blaster powder.
Moore stated that if power was lost on the longwall the roof
conditions could have worsened, exposing miners to falling rock
and to the danger's inherent in trying to break or shoot the
rock.
On the paging telephone and jeep radio, Moore heard miners'
concerns about having lost power. Moore heard that the
locomotives could not be operated on the supply tracks.
He also
heard the motormen expressing concern about the locomotives'
brakes. Moore testified that this was a safety problem for the
locomotives and the supply cars they were pulling because of the
possibility of runaways.
The equipment could run either towards
a working section, a power center or could have derailed. 8 Moore
also was concerned that miners were stranded on sections without
vehicles to transport them in case of injury. Moore struck me as
a conscientious supervisor and I credit his testimony.
Under these circumstances, I conclude that Consol 0 s
negligence in restoring the cited splitter box to service was
mitigated by Moore 1 s legitimate safety concerns.
I do not
believe that the violation resulted from Consol 1 s indifference or
serious lack of reasonable care. Rather, Consol was diligent in

8

A Consol mechanic testified that all the sections are on an incline.

2566

trying to minimize the hazard at the splitter box9 while at the
same time, minimizing other possible mine safety hazards
resulting from the power outage.
I conclude that the second
violation of section 75.1725(a) was not the result of Consol's
"unwarrantable failure" to comply with the standard.
CIVIL PENALTY

For the reasons set forth above, I find the violation was
not serious and was the result of less than ordinary negligence
on Consol's part. As noted, the mine has a large history of
previous violations and Consol is large in size. The Secretary
has proposed a civil penalty of $1700 for the S&S violation
caused by Consolvs 11 unwarrantable failure" to comply in Order No.
3717931. Given the fact that I have found the violation to be
neither S&S nor "unwarrantable" and taking into consideration the
civil penalty criteria just mentioned, I conclude that a civil
penalty of $250 is appropriate.
ORDER

Accordingly, Citation No. 3717929 is AFFIRMED and a
civil penalty of $500 is assessed for the violation of
section 75.1725(a). The Secretary is ordered to MODIFY Order
No. 3717931 to a section 104(a) citation and to delete the S&S
and "unwarrantable" findings.
A civil penalty of $250 is
assessed for the violation of section 75.1725(a). Consol is
ORDERED to pay the civil penalties and the Secretary is ORDERED
to make the modifications within thirty (30) days of this
decision and upon receipt of payment and modification of the
order~ these matters are DISMISSED.

j)~F6~-·

David F. Barbour
Administrative Law Judge
(703)756-5232

9
Lauklin asked Moore if he could station a mechanic at the energized
splitter box until the bolts were fixed so no one could get into it and
McDorman said that would not suffice.

2567

Distribution:
Daniel E. Rogers, Esq., Consolidation Coal company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified
Mail)
Charles M. Jackson, Esq., Office of the Solicitor,
u.s. Department of Labor, 4015 Wilson Boulevard, suite 516,
Arlington, VA 22203
(Certified Mail)

2568

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

20006

December 21, 1993
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS

.

Docket No. YORK 93-138-M
A. C. No. 19-00288-05507

v.

Docket No. YORK 93-143-M
A. C. No. 19-00288-05508

BENEVENTO SAND AND GRAVEL,
Respondent

North Wilmington
Quarry & Mill
DECISION

Appearances:

Gail E. Glick, Esq., Office of the Solicitor,
u. s. Department of Labor, Boston, Massachusetts,
for Petitioner;
Joseph H. Murphy, Esq., Benevento Sand & Gravel,
Andover, Massachusetts, for Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil penalties filed by the Secretary of Labor against Benevento Sand and
Gravel under section 110 of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820.
A hearing was held on December 1 1 1993~
Prior to going on
recordr there was a pre-hearing conference between counsel
and the undersigned. As a result of the off the record conference, counsel for both parties agreed to submit the alleged
violations on stipulated facts and findings (Tr. 6-7).
~he

The
ies also agreed to several general stipulations as
follows (Tr. 6) ~

1) the operator is the owner and operator of the subject
mine'
(2)
the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977:
(3)

I have jurisdiction of these cases;

(4)
the inspector who issued the subject citations and
orders was a duly authorized representative of the Secretary of
Labor;
(5)
true and correct copies of the subject citations and
orders were properly served upon the operator;

2569

with respect to size 1 good faith abatement, prior history of
violations and the effect payment would have on the operator's
ability to continue in business, the Solicitor stated the
following:

* * * The operator, in this case, is a small operator.
It is a family business of sole proprietorship.
There are a total of 11 employees in the operation.
The history with respect to violations under the Federal Mine Safety and Health Act, there have been penalties and violations that have been assessed. And in
fact there have been violations of the very same items
and regulations that are currently cited in these two
cases. However, the violations both previously and in
this particular case have always been promptly abated
and none of these violations have resulted in any
disabling injuries or any fatalities.

*

*

*

In fact, they have demonstrated an excellent record in
terms of accidents and injuries. Moreover, the operator has always made an honest attempt to comply with
the standards in general. The payment of the amounts,
in the view of the Secretary of Labor, is that it would
affect the employer's ability to do business (Tr. 7-8).
With respect to the effect payment would have on the
operator's business, operator's counsel made this
representation~

If it. may please the court, with regard to the
sums set out in the original special assessments, those would have created a great burden on the
ongoing operations of Benevento Sand & Gravel. As the
Solicitor has stated, they are a small family-owned
company.
They do approximately $1.5 million dollars in
annual sales. And they have approximately annual
profit of $100u000o
Both Mr. Charles Benevento and Mr.
John Benevento have significant personal financial
problems arising from different business dealings and
Mr. John Benevento has extensive property tax that he
unable to pay for the land he cannot develop and Mr.
Charles Benevento has suffered from the general economic downturn with regard to the business and construction in.this area.
It is unlikely that the business
could have continued in the manner it is now, if the
original sums were so enforced (Tr. 8-9).
The Solicitor accepted the foregoing representations by
operator's counsel (Tr. 9).

2S70

The stipulations and representations of the Solicitor and
operator's counsel are ACCEPTED.
YORK 93-138-M

six alleged violations are involved in this docket number.
Five of these were issued pursuant to section 104(d) (1) of the
Act, allegedly resulting from unwarrantable failure on the part
of operator.
Citation No. 4079716 was issued under section 104(d) (1) for
a violation of 30 C.F.R. § 56.14132(a) because the automatic
reverse activated signal alarm provided for the CAT 769 haul
truck, Company number E-3, did not function when tested.
The
violation was designated significant and substantial and negligence was assessed as high.
The Solicitor advised that injury
was reasonably likely because of vehicular traffic on the roadway
and the fact that the view to the rear of the truck was obstructed approximately 75 to 80 feet (Tr. 13-14). The Solicitor's
representations were agreed to by operator's counsel (Tr. 14).
On the record I held as follows with respect to this
citation:
Based upon the Solicitor's representations agreed
to by operator's counsel, I affirm the 104(d) (1) citation and find the violation was significant and substantial and resulted from unwarrantable failure on the
part of the operator.
Penalty proceedings before the
Commission are
novo.
[Sellersburg Stone Co., 5
FMSHRC 287, 290-93 (March 1983), aff'd, 736 F.2d 1147,
151-52 (7th Cir. 1984) .]
I am not bound by the proposed penalty assessments of the Mine Safety and Health
Administration.
I am obliged to take into account the
six criteria set forth
Section 110(i) of the Act.
And I now do so.
In affirming the 104(d) (1) citation,
I find there was a high degree of negligence and that
the violation attained the degree of gravity required
by the Commission for the significant and substantial
designation.
In addition 1 I take into account the operator's
financial condition and I note the representation of
operator's counsel that payment of the originally
assessed penalties would affect the operator's ability
to continue in business.
I further note the representation of the Solicitor to the effect that the operator
has a prior history which in its entirety is good and
that it has no fatalities or serious injuries.
I note,

2571

too, that this is the first occasion where this operator has been before the Commission. Taking into account all of the criteria of Section 110(i) of the Act,
I assess a penalty of $1,500 for this violation
(Tr. 14-15) .
I adhere to the foregoing findings, conclusions and
assessment.
Order No. 4079717 was issued under section 104{d) (1) for a
violation of 30 C.F.R. § 56.14132(a) because the automatic
reverse activated signal alarm (back-up alarm) provided for the
CAT haul truck 769B, Company number E-2, did not function when
tested. The violation was designated significant and substantial
and negligence was assessed as high. According to the Solicitor
injury was reasonably likely because of traffic in the area, the
steep grade on the roadway and the fact that the haul truck had
an obstructed view to the rear. The basis for the negligence
evaluation was that two violations for the same standard had been
issued (Tr. 16-18). Operator's counsel noted the rapid abatement
after the citation was issued (Tr. 17-18).
I affirmed this 104(d) (1) order on the record and found the
violation was significant and substantial and resulted from
unwarrantable failure on the part of the operator (Tr. 18-19).
In addition, on the record I held as follows with respect to
the order:
As I previously stated, taking into account all of
the factors mandated under Section 110(i), including
the abil
to continue in business, size, and overall
prior history, I determine that the appropriate penalty
assessed for this order is $1,500 (Tr. 19).
I adhere to the foregoing findings, conclusions and
assessment.
Order No. 4230581 was issued under section 104(d) (1) for a
violation of 30 C.F.R. § 56.14131(a) because the operator of the
CAT 769 haul truck company No. E-2 was observed operating this
piece of mobile equipment without wearing the seat belt that was
provided. The order was designated significant and substantial
and negligence was assessed as high. The Solicitor stated that
there was a reasonable likelihood of injury because of the road
conditions, the steepness of the road grade with two-way traffic,
the size of the truck involved, and the fact the operator has to
negotiate a 90 degree turn in a short space. The Solicitor
further stated that the evaluation of negligence was justified
because the operator had no seat belt policy and the employees
admitted they received no training with respect to seat belts

2572

(Tr. 19-21). The Solicitor's representations were agreed to by
operator's counsel (Tr. 21).
On the record I held as follows with respect to this order:
This of course is a very serious violation and
based upon the representations, the order undoubtedly
was properly issued because the violation was significant and substantial. There was an unwarrantable
failure on the operator's part. The operator has a
duty to see that the policies, the requirements of the
Act are put into effect and seat belts are one of those
requirements.
It doesn't matter what the state law,
says. Federal law takes precedence over state law
unless there is some direction in the law to the contrary. So that is the way it is. The operator has to
understand it.
But again, I take into account all of
the factors I mentioned before and most particularly,
the fact that this operator has not been before the
Commission previously. Again, I take note of the fact
that high penalty assessments originally proposed by
the Secretary might well impair the operator's ability
to continue in business. Therefore, I determine as
appropriate and assess a penalty for this violation the
sum of $3,000, which although it represents a 50 percent reduction from the Secretary's proposal, nevertheless remains a substantial sum (Tr. 21-22).
I adhere to the foregoing findings, conclusions and
assessment.
Order No. 4280582 was issued as a 104(d) (1) order for a
violation of 30 C.F.R. § 56.9200(d) because an employee was
observed riding on top of the fuel tank on the Trojan 5500 loader
between the operator station and the ladder. The employee was
being transported from the salvage yard to the Quarry shop. The
violation was designated significant and substantial and negligence was assessed as high. The Solicitor advised that injury
was reasonably likely because the employee could fall off the
loader (Tr. 22-24). Operator 1 s counsel stated that the individual riding on the tank was a mechanic who was checking for an
equipment defect. Also counsel advised that the road being
traveled was wide and level with very limited traffic and that
the machine was going very slowly, but he admitted the violation
was dangerous (Tr. 24-25).
On the record, I held the following with respect to this
order:
Based upon the representations of both counsel I
find that the order was properly issued because the

2573

violation was significant and substantial and, therefore, that it presented the reasonable likelihood of
serious injury from the hazard. The individual could
have fallen off and suffered a very serious injury. So
although I take note of the operator's counsel's representations, the violation remains significant and
substantial.
I also find that it was the result of an
unwarrantable failure.
The loader was being operated
by the operator himself.
I again take note of all of
the factors set forth in Section 110(i) of the Act,
i.e., the violation was undoubtedly serious and resulted from high negligence. However, I also take into
account the operator's financial situation, its size,
and its overall history. Since I have previously set
forth these items in detail, I will not again repeat
them.
Based thereon I determine as appropriate and
assess a penalty of $3,500 for this violation. Although this assessment represents a substantial reduction from the proposed assessment, it remains a significant amount and is, I believe, consistent with the
purposes of the statute (Tr. 25-26).
I adhere to the foregoing findings, conclusions and
assessment.
Order No. 4280583 was issued as a 104(d) (1) order for a
violation of 30 C.F.R. § 56.14130(g) because the operator of the
Trojan 5500 front end loader was observed operating it without
using the seat belt provided. The violation was designated
significant and substantial and negligence was assessed as high.
Operator 1 s counsel advised that the terrain where the loader was
operated was flatr the loader was not operating for a long period
of time and the machine was going slowly (Tr. 28)"
Based upon
these factors, the Solicitor agreed to modify the order by
deleting the significant and substantial designation (Tr. 28).
On the record I held as follows with respect to this order:
I accept that proposed modification.
It seems to
me it is appropriate in light of the fact that the
piece of equipment was operating on level ground and
that it was going at a slow rate of speed. The circumstances under which this violation occurred, are plainly different from those under which the prior Order
4230581 was issued for seat belt violation. The terrain there was steep and had sharp turns.
I do find,
however, that the violation remains a serious one.
Although the circumstances do not rise to the level
required by the Commission for the existence of significant and substantial, in particular the reasonable
likelihood requirement identified by the Solicitor, the

2574

violation nevertheless was serious. There was a poss
bility of serious injury which supports a finding of
gravity.
I further find that the operator was guilty
of unwarrantable failure for the reasons set forth by
the Solicitor.
I, therefore, find appropriate and
assess a penalty of $2,500 for this citation in light
of all of the factors in Section 110(i) I discussed
previously (Tr. 28-29).
I adhere to the foregoing findings, conclusions and
assessment.

Citation No. 4079713 was issued for a violation of 30 C.F.R.
56.14130{i) because the seat belt provided for the Trojan 5500
was not maintained in a functional condition. The violation was
designated significant and substantial and negligence was assessed as moderate. The Solicitor agreed to modify this citation
by deleting the significant and substantial designation. The
reason for the modification was that the vehicle in question was
parked at the time of the inspection and the defective belt could
easily be replaced or repaired (Tr. 10-11).
§

On the record I held as follows with respect to this citation, "In view of the deletion of the significant and substantial
designation I find appropriate and I assess a penalty of $167."
(Tr. 12) .
I adhere to the foregoing determination and assessment.
YORK 93-143-M

Citation No. 4079712 was issued under section 104(a) for a
violat
of 30 C.F.R. § 56.14132(a) because the automatic
reverse activated signal alarm provided for the Trojan 5500 was
not maintained in a functional condition. The violation was
designated significant and substantial and negligence was assessed as moderate.
Operator's counsel advised that at the time
of the inspection the vehicle was not in operation and was set
aside to
repaired (Tr. 32). The Solicitor agreed based upon
operator 1 s counsel representation to modify the citation by
deleting the significant and substantial designation (Tr. 32).

be

On the record I held as follows with respect to this
citation~

Based upon the representation I accept that proposal.
The s & s designation is deleted.
In light of
all of the factors to be considered under Section
110(i) I find a penalty of $250 is appropriate.
I
hereby assess that penalty for this violation (Tr. 32).

2575

I adhere to the foregoing findings, conclusions and
assessment.
Citation No. 4079715 was issued for a violation of 30 C.F.R.
56.14107(a) because the head pulley guard provided for the
No. 3 conveyor was not adequate. The violation was designated
significant and substantial and negligence was assessed as
moderate. According to the Solicitor, injury was reasonably
likely because the head pulley is openly accessible to any person
who walks on the walkway which abuts this pulley. The walkway
was available for the purpose of accessing the pulley for maintenance (Tr. 34-35). Operator 1 s counsel advised that at the time
of the inspection, the pulley guard was in the process of being
made and the violation was quickly abated. Based upon these
representations the Solicitor agreed to modify the citation by
reducing negligence from moderate to low (Tr. 35).
§

On the record I held as follows with respect to this
citation:
I accept that modification.
I believe it is
appropriate.
In light of the representations, the
violation remains, however, significant and substantial.
In light of these negligence and gravity findings and in light of the other factors set forth in
Section llO(i) of the Act, as discussed previously, I
find appropriate and assess a penalty of $250 for this
violation (Tr. 35-36).
I adhere to the foregoing findings, conclusions and
assessment.

ORDERS
I·t is ORDERED ·that the fact of the violation for Citation
and Order Nos. 4079716, 4079717, 4280581, 4280582, 4280583 and
4079713
Docket No. YORK 93-138-M and Citation Nos. 4079712 and
L~Q79715
Docket No. YORK 93-143-M be AFFIRMED.

It
further ORDERED that the significant and substantial
designations for citation and Order Nos. 4079716, 4079717,
4280581, and 4280582 in Docket No. YORK 93-138-M and Citation
No. 4079715 in YORK 93-143-M be AFFIRMED.

It
further ORDERED that the unwarrantable failure finding
for Citation and Order Nos. 4079716, 4079717, 4280581, 4280582,
and 4280583 in Docket No. YORK 93-138-M be AFFIRMED.
It is further ORDERED that Order and Citation Nos. 4280583
and 4079713 in Docket No. YORK 93-138-M and Citation No. 4079712
in YORK 93-143-M be MODIFIED by deleting the significant and
substantial designations.

2576

It is further ORDERED that Citation No. 4079715 in Docket
No. YORK 93-143-M be MODIFIED by reducing negligence from
moderate to low.
It is further ORDERED that the penalty assessments for the
violations in Docket Nos. YORK 93-138-M and YORK 93-143-M be as
follows:
YORK 93-138-M
Citation/Order No.
4079716
4079717
4280581
4280582
4280583
4079713

Penalty Assessment
$1,500
$1,500
$3,000
$3,500
$2,500
$ 167
YORK 93-143-M

Citation/Order No.
4079712
4079715

Penalty Assessment
$ 250
$ 250

It is further ORDERED that the operator PAY the above
assessed penalties within 30 days of the date of this decision.
It is further ORDERED that these cases be and are hereby
DISMISSED.

----------\---\--~{
~

Paul Merlin
Chief Administrative Law Judge

Distribution~

(Certified Mail)

Gail Eo Glick, Esqo, Office of the Solicitor, Uo So Department of
Labor, One Congress Street, 11th Floor, Po Oo Box 8396, Boston,
MA 02114
Joseph Ho Murphy, Esqo, McCabe and 0 1 Brien, PCo, Benevento Sand &
Gravel, Andover, MA 01810
jgl

2577

FEDERAL MINE SAFETY AND HEAlTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 3 01993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-369
A.C. No. 15-14074-03634
Martwick UG

PEABODY COAL COMPANY 1
Respondent
DECISION

Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for Petitioner;
Carl B. Boyd, Jr., Esq., Henderson, Kentucky, for
Respondent.

Before:

Judge Arnchan:
STATEMENT OF THE CASE
~-

The Grounding Violation

MSHA Inspector Darold Gamblin conducted an inspection of
Respondent 0 s Martwick underground mine on December 14, 1992
(Tr. 10-11). Upon reaching the 3 South Panel entries he
encountered an electrical transformer supplying power to the
equipment
the entr
l . At the transformer, he
observed
power cable
u or cathead 0 that was being used
to plug a cable running to a belt feeder transfer point into the
transformer
11 = 14). This cathead consists of two large
metal parts. One
a female receptacle that is mounted on the
transformer; the other
a male part to which the cable is
attachedu which
plugged into the female part (Tr. 8 - 9, 11 14u Jto EXho 4)o
o

The cathead has an internal grounding device and an external
grounding device. The internal grounding device would prevent an
employee from being shocked or electrocuted by the cable, if the
cable insulation were to break. However, the metal casing of the
cathead might become energized unless the external grounding
device is properly connected (Tro 14- 15).

2578

The external grounding device consists of two wires, one is
attached to the male portion of the cathead; the other to the
transformer or to the female portion of the cathead (Tr. 25, Jt.
Exh. 4). In order to perform its function, the two wires must be
connected to each other; when Mr. Gamblin observed them, they
were disconnected (Tr. 25).
As the result of this observation, Mr. Gamblin issued
Respondent Citation No. 3417313 alleging a violation of 30 C.F.R.
§ 75.701.
This standard requires that:
Metallic frames, casings, and other enclosures of
electric equipment that can become "alive" through
failure of insulation or by contact with energized
parts shall be grounded by methods approved by an
authorized representative of the Secretary. 1
The Secretary proposed a civil penalty of $189 for this
alleged violation. Respondent concedes that a violation of the
standard occurred but takes issue with Inspector Gamblin's
characterization of the violation as "significant and substantial
( Tr • 7 , Jt . Exh . 1 ) . "
The Commission formula for a "significant and substantial"
violation was set forth in Mathies Coal Co. 6 FMSHRC 1 (January
1984) :
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: {1)
the underlying violation of a mandatory safety
standard; (2} a discrete safety hazard--that isu a
measure of danger to safety--contributed to by the
violation; (3} a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
As in most cases litigated under this test, it is
exclusively the third criteria, the likelihood of injury that is
in question in the instant case. The totality of the Secretary's
evidence on this point is as follows~
In the usual course of mining, how could
parts of this belt feeder cathead have become energized
or hot or alive?

Question~

1

This standard was enacted as part of 1969 Coal Act and is
also found at 30 u.s.c. § 867.

2579

Answer: If the insulation of the cable entering the
cable coupler become broke down or through -- these are
drug all over the bottom when they're moving the power.
You know, the internal parts come in contact with the
casing.
Question: And based on your experience, then, what
would have happened if a miner had come into contact
with the energized or hot parts of that belt feed
cathead?
Answer:
Question:
Answer:

Injury would be reasonably likely.
What kind of injury could someone suffer?
Electric shock (Tr. 17 - 18)

Question: How likely was it that the condition would
lead to injury or illness if mining continued, if the
mining process continued?
Answer:

Reasonably likely. (Tr. 26)

Later, Inspector Gamblin explained that while normal
practice would be to shut off the power by turning off the
breaker on the transformer--before unplugging the cathead, this
is not always done (Tr. 66-67,72). If the breaker is not turned
off, the internal grounding device should protect the employee if
it»s functioning properly. The external ground is a back-up
system which protects the employee from electrical shock if the
internal ground
defective (Tr. 72~74).
Not
ingly, Respondent disagrees with Inspector 1 s
Gamblin's
that injury is reasonably likely. Alan Perks,
Peabody 0 s Chief Maintenance Engineer, testified that normal
mining procedure is to turn off the circuit breaker on the
transformer before disconnecting the cathead. This, he believes,
would
risk of injury {Tr. 88). Moreover, he stated
that even if an employee were to disregard the normal practice it
would be
that he would be shocked:
I
that there is a sufficient electrical
connection by the mechanical interference fitting in
these laches [of the two parts of the cathead] that if
the shell became energized, the electrical current
would flow through these connections and operate the
ground trip relay of the transformer which would, in
turn, kill the circuit breaker feeding power to this
unit •.•
I view this [the external ground wires] as, I guess, an
additional safety device. I think there is enough

2580

electrical connection here to trip it under most
situations, this (the external ground] just being an
additional safety backup (Tr. 83).
Mr. Perks, who has a B. S. degree in electrical engineering
from the University of Maryland, performed continuity testing on
a cathead similar to the one cited by Mr. Gamblin (Tr. 83-84, 9495). These tests indicated good continuity between the two parts
of the cathead (Tr. 84). In Mr. Perks' opinion, this indicates
that, if the metal casing of the cathead became energized, there
would be sufficient transfer of current to operate the ground
trip relay and shut off the circuit breaker on the transformer
(Tr. 84) •
APPLICATION OF THE MATHIES TEST

Determining the likelihood that injury will occur, the third
element of the Mathies test, is a very difficult task. Injuries
are normally the result of accidents, which by definition, are
unusual occurrences. Before embarking upon the task required by
Mathies I note that under the analogous provision of the
Occupational Safety and Health Act, consideration of the
likelihood of injury is precluded.
Section 104(d) (1) of the Federal Mine Safety and Health Act
distinguishes between violations that "could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard" and violations that do not.
MSHA, pursuant to its regulations at 30 C.F.R. § 100.4, generally
assesses a $50 civil penalty for violations that are "non S&S."
Section 17 ) of the OSH Act, 29 u.s.c. 666(k), defines a
seriousvo violation for which higher penalties are proposed than
for 11 other-than-seriousv1 violations. See OSHA Field Operations
Manual, 3 BNA Occupational Safety and Health Reporter pages
77:2507 and 77:2701 et. seq .. A "serious" violation is one which
exists 11 • • •
there is a substantial probability that death or
serious physical harm could result from a condition which
exists ..• in such place of employment unless the employer did not,
and could not with the exercise of reasonable diligence, know of
the presence of the violation. 11
'0

The Occupational Safety and Health Review Commission and the
Courts of Appeals have repeatedly held that only the seriousness
of an injury should one occur, not the likelihood of an injury
occurring is to be considered in determining whether or not an
OSHA violation is "serious." The Court of Appeals for the Ninth
Circuit observed:
Where violation of a regulation renders an accident
resulting in death or serious injury possible, however, even

2581

if not probable, Congress could not have intended to
encourage employers to guess at the probability of an
accident in deciding whether to obey the regulation.
California stevedore and Ballast Company v. OSHRC, 517 F.2d
986 (9th cir. 1975).
The proposition that the likelihood of injury is irrelevant
to whether an OSHA violation is "serious" has been reaffirmed on
many occasions. Communications, Inc., 7 BNA OSHC 1598, 1602
(R.C. 1979); Trumid Construction Co., 14 BNA OSHC 1784, 1789
(R.C. 1990); Department of Labor v. Kerr-McGee,
F.2d
, 15
BNA OSHC 2070 {9th Cir. 1993); East Texas Motor Freight,-rnc. v.
OSHRC, 671 F. 2d 845, 849 (5th Cir. 1982}; Kent Nowlin
construction Co. v. OSHRC, 648 F. 2d 1278, 1282 (lOth Cir. 1981).
The probability of injury is considered in proposing OSHA
penalties, although a higher penalty will be proposed for a
"serious" violation than an "other-than-serious" violation, other
considerations being equal, OSHA Field Operations Manual, supra.
The purpose of civil penalties under both the Mine Safety
and Health Act and the OSH Act is to encourage future compliance.
Characterizing a violation as "non-significant and substantial"
and assessing a $50 penalty hardly provides an incentive for the
mine operator to make any greater effort to comply with the cited
standard. Indeed, the import of Mr. Perks' testimony is that the
standard at 30 C.F.R. § 75.701 serves virtually no useful purpose
in protecting miners. If the regulation is as unimportant as his
testimony indicates, there is no reason why Respondent should
make any particular effort to assure that the external ground
wires on its catheads stay connected. 2
It would appear contrary to purposes of the Mine Act to
assess such minimal penalties as are called for under 30 C.F.R.
§ 100.4v
these violations may one day cause serious injury to
a miner. In precluding consideration of the likelihood of an
accident from the determination of whether a violation is
seriousu the OSHA case law is consistent with the statutory
purpose of preventing accidents. Since the purposes of the Mine
Safety and Health Act and OSHA are essentially identical, there

20n

the other hand, Mr. Perksi testimony is that there is
sufficient electrical connection between the laches of the
cathead to trip the circuit breaker in most situations. This
suggests that there may be situations in which the functioning of
the external ground may be the difference between life and death.
Furthermore, Mr. Perks' testimony relies upon an "after-the-fact"
determination that the electrical connection on a cathead,
different than the one cited, was sufficient to trip the circuit
breaker.

2582

should not be such a tremendous disparity in the case law under
the two statutes unless there is a good rationale for such
differences.
The undersigned believes greater harmonization of the tests
for a "serious" violation under OSHA and a "significant and
substantial" violation under the Mine Act is possible and
desirable. In u. s. steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984), the Commission made it clear that "significant and
substantial" is not to be determined solely upon conditions as
they existed at the time the citation was issued, but should also
consider "continued normal mining operations."
If MSHA promulgated a mandatory safety standard requiring
the metal casings of electrical equipment to be grounded, it must
have done so under the assumption that under normal mining
conditions injuries would occur unless the standard was followed.
I, therefore, assume that unless the record indicates that the
conditions cited do not pose the hazard to which the standard is
directed, that sooner or later, at this mine or at another,
noncompliance with the standard will result in injury. As I see
nothing in this record that indicates that the conditions for
which Citation No. 3417313 was issued were distinguishable from
the concerns for which 30 C.F.R. § 75.701 was promulgated, I
conclude that the injury was reasonably likely in the context of
continued normal mining operations and that the violation was
''significant and substantial."
I recognize that this decision is somewhat inconsistent with
the rationale of the Commission 1 s decision in Cement Division,
National Gypsum Companvv 4 FMSHRC 822 (April 1981). In that
casei7 the Commission held for the first time that an ns&S"
violation requires a showing that there exists a reasonable
likelihood that the hazard will result in an injury of a
reasonably serious nature. Part of its rationale was a concern
that interpreting the significant and substantial language in
sections 104(d) and (e) to encompass almost all violations would
render that language virtually superfluous 4 FMSHRC at 826.
Howeveru the later u.s. Steel Mining decision is itself not
entirely consistent with National Gypsum.
The vast majority of the Secretary 1 s regulations are
directed to hazards that will cause serious injury. If
noncompliance with any one of these regulations persists
industry-wide, serious injury is likely to occur. As u.s. Steel

2583

Mining is a more recent decision than National Gypsum, I feel
obligated to follow it where the two opinions are not completely
harmonious. 3
Many accidents result from several things going wrong at
once. For this reason, a number of MSHA standards call for backup safety devices. Without the refinement to National Gypsum and
Mathies provided by the u.s. Steel Mining decision, the fact
finder in adjudicating a case under one of these standards, is
forced to speculate on the likelihood of several factors coming
together at one time to produce injury. Otherwise violation of a
standard requiring back-up protection would be "S&S" only in
situations in which these factors are already present. In the
latter situation, "significant and substantial" is hardly
distinguishable from imminent danger.
The import of the National Gypsum test without the gloss of

u.s. Steel Mining is that a violation of standards like those

cited in the instant case, which provide "back-up" or secondary
safety protection, could never be "S&S" unless a variety of
factors combined to make injury imminent. To categorize all
violations of these standards as "non S&S" is to invite lassitude
by operators in complying with their terms and is totally
inconsistent with the purposes of this statute.
THE UNMARRED CATHEAD
During his inspection of December 14, 1992, Inspector
Gamblin also noticed two catheads by which the cables leading to
the two continuous mining machines were plugged into the
~ransformero
One of the catheads was marked to indicate the
machine
which its cable was attached and the other was not
marked (Tr. 36u 42)o Mr. Gamblin issued Respondent Citation
Noo 3417315 alleging a violation of 30 C.F.R. § 75.601. That
standard provides:
•• Disconnecting devices used to disconnect power from
trailing cables shall be plainly marked and identified
and such devices shall be equipped or designed in such
a manner that it can be determined by visual
observation that the power is disconnected.
would also note that the National Gypsum decision is
predicated in part on the concern of what might happen with
regard to section 104(e) vs pattern provisions if "significant and
substantial" were interpreted broadly. Commissioner Lawson noted
in his dissent in Phillips Uranium Corp., 4 FMSHRC 549, 560
{April 1982) that there had been no enforcement action taken by
MSHA under section 104(e). As best as the undersigned can
determine from reported Commission and ALJ decisions, that is
still true.

2584

As was the case with the prior citation, Respondent concedes
that the violation occurred and takes issues only with MSHA's
characterization of the violation as "significant and substantial
(Tr. 7)." As was true with the prior citation, it is the third
element of the Mathies test, the likelihood of injury that is at
issue. The penalty proposed for this violation was also $189.
Inspector Gamblin believes it is reasonably likely that an
employee could attempt to work on a mining machine for which he
or she mistakenly believed the power was disconnected due to the
lack of identification markings on the one cathead (Tr. 40, 50,
56, 60-63). If this were to happen, the employee could be
shocked or injured by the cutting head of the continuous miner
(Tr. 40). Respondent contends that there are several reasons why
an injury would be unlikely. First of all, an employee could
determine which cathead belonged to which continuous miner by the
process of elimination. By looking at the cathead which was
marked, an employee would know that the unmarked cathead belonged
to other continuous mining machine (Tr. 52).
The two catheads could also be easily distinguished by the
fact that one was much cleaner than the other (Tr. 53). The
reason that Respondent had two continuous mining machines in the
section was that it was in the process of replacing one with the
other, which had been recently rebuilt (Tr. 89). The older
machine was to remain in the section with the rebuilt machine for
only two or three days until Peabody was satisfied that the
rebuilt machine functioned properly (Tr. 92, 103). Because the
older machine had been in the section for quite a while, the
cathead for its trailing cable was much dirtier than the cathead
for the newer machine (Tr. 106- 107).
Finallyc Respondent contends that 1n)ury is unlikely because
normal practice is for an employee to follow a trailing cable
back to the transformer to make sure he unplugs the right one
(Tr. 90}. Moreover, Peabody company policy is that the
individual employee who performs work on the continuous mining
machine is to disconnect and lock out the power himself or
herself (Tr. 109). Thisu according to Respondent, would make it
very unlikely that an employee could be injured while working on
a continuous miner because he or she thought the power was
disconnected.
As with the prior citation, I have to assume that MSHA, in
promulgating 30 C.F.R. § 75.601 concluded that, if disconnecting
devices are not plainly marked and identified, that, in the
normal course of mining operations, an employee may be injured.
Even if injury is likely to occur only once every ten or twenty
years somewhere in the United States due to the violation of the
standard, I would conclude that injury is "reasonably likely"
within the meaning of the Mathies test.

2585

The Commission in U.S. Steel Mining Company, Inc., 6 FMSHRC
1834, 1836 1838 (August 1984) found a violation of section
75.601 to be "significant and substantial." It is useful to
analyze that decision to see if the facts in that case are
distinguishable from the instant case. There were two unmarked
trailing cable plugs (which I assume are the same thing as
catheads) at the time of the citation at u.s. Steel's mine,
however they were very different in size and appearance. There
were also marked catheads which the Commission found could be
mistaken for the unmarked catheads.
The commission rejected the company's argument that the
"process of elimination" made it unlikely that the unmarked
catheads would be confused with marked catheads. Indeed the
Commission appeared to reject any factor depending on human
behavior as negating likelihood. See footnote 4 on page 1838. A
great deal of importance was placed on a fatal accident at the
same mine in 1979 which resulted from the mix-up of catheads for
two shuttle cars.
In all the factors present in the 1984 case, I can only
discern one which distinguishes the instant situation in any
meaningful way. That is the fact that the older continuous miner
in the instant case was to be in the section for only two or
three days and its cathead was noticeably dirtier than that of
the rebuilt continuous miner.
I do not find this distinction sufficient to find the
instant violation to be non S&S. The standard does not require
marking and identification only when there is equipment that can
be confusedo I can only conclude that, when promulgating the
standard 1 MSHA concluded that marking and identification of
catheads was necessary to prevent injury in every situation in
which they could be plugged in or disconnected from a power
source. To find otherwise would be to question the wisdom of the
standard which I believe neither I nor the Respondent is entitled
to do--after the regulation has been properly promulgated.
Final
·to find that injury is unlikely due to relative
cleanliness of the catheads would require the undersigned to
speculate that an employee would in every situation make the
logical connection between the appearance of the cathead and its
connection to the new or old mining machine. I see no basis for
concluding that this connection would necessarily be made.
ORDER
I affirm Citation Nos. 3417313 and 3417315 as "significant
and substantial" violations. Considering the statutory factors
enumerated in section 110(i) of the Act, particularly the low to
moderate negligence of Respondent, its good faith in correcting

2586

the violations, and the gravity of the violation, I assess a $189
penalty for each violation. Payment shall be made within 30 days
of this decision.

0f(Z.r~

Artfiur J. Amchan
Administrative Law Judge
703-756-6210

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Carl Boyd, Jr., Esq., 120 N. Ingram St., Suite A, Henderson, KY
42420 (Certified Mail)
jjf

2587

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 3 01993
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of CARROLL JOHNSONu
complainant
and

Q

0

Docket No. SE 93-182-D
BARB CD-92-20
No. 7 Mine
0

0

UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor

.

JIM WALTER RESOURCES,
INCORPORATED,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
and

CIVIL PENALTY PROCEEDING
Docket No. SE 93-104
A. C. No. 01-01401-03938

UNITED MINE WORKERS OF
AMERICA (UMWA)
Intervenor
JIM WALTER RESOURCESp INCop
Respondent
DECISION

Appearancesg

William Lawsonf Esq.u Office of the Solicitor,
u.s. Department of Labor, Birmingham, Alabama,
for Complainant and Petitioner3
Barry Woodbrey, Esq., United Mine Workers of
America (UMWA), for Intervenor;
David M. Smith, Esq., and Mark Strength, Esq.,
Meynard, Cooper and Gale, Birmingham, Alabama,
and R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Birmingham, Alabama, for Respondent.

Before:

Judge Weisberger

2588

Statement of the Case
The above captioned cases commenced by the Secretary,
involve an alleged violation by Jim Walter Resources, Inc.,
{Respondent) of Section 103(f) of the Federal Mine Safety and
Health Act of 1977 ("the Act"), and an alleged violation of
Section 105(c) {1) of the Act. On March 19, 1993, the Secretary
(Complainant) filed a motion for approval of settlement regarding
both these cases. The United Mine Workers of America (UMWA},
Intervenor, filed a response in opposition to the motion.
Respondent filed a submission in support of the motion. On
April 26, 1993, an order was issued denying the motion to approve
settlement. Pursuant to notice, the cases were scheduled and
heard in Birmingham, Alabama, on July 20 and 21, 1993. On
september 23, 1993 the Secretary filed a brief.
Respondent and
Intervenor each filed their briefs on September 28, 1993. on
october 1, 1993, the Secretary filed a reply brief. Respondent's
response was received on October 12, 1993.

Findings of Fact
1.
No.

7u

Jim Walter Resourcesr Inc. 5 Respondent, operates Mine
an underground coal mine.

2.
At Mine No. 7, coal is mined on a continuous miner
section and on two longwall sections.
3.
In October 1991, carroll Johnson, a miner, and chairman
of the union safety committee at the subject mine, received
safety complaints from miners regarding respirable dust on the
longwall sections. In responseu he requested a Section l03(g)
inspectionu on October 22Q 199lff pursuant to the Section 103(g)
inspection at the No. 1 Longwall Section. citation No. 2805274
was issued to Respondent, alleging excessive respirable dust.
The time to abate the violation was set for November 17, 1991 and
subsequently extended to November 22 0 1991.
~.
on November 22, 1991 0 Respondent was issued a Section
104(b) u order (No. 3805276} 9 alleging excessive respirable dust
on the No. l Longwall Section.

5.
on November 23u 1991, MSHA and Respondent agreed to 15
changes 1 and adjustments to control dust on the No. 1 Longwall,
including the placement of additional sprays, and fog-jet sprays.
Also, one of the changes required a decrease in one of the
diameters of the opening on the drum sprays, and the maintenance
of"
a minimum of 70% operating." (Exh. G-4, par. N) (sic).
1

These changes were made to the original Dust Control Plan.

2589

6.
The Section 104(b) Order, supra, was modified on
November 23, 1991, to allow production to resume on the No. 1
Longwall Section"··· to evaluate the changes and adjustments
made to the approved ventilation methane and dust control plan
and collect respirable dust samples." (Exh. G-3).
7.
on November 23, 1991, MSHA Inspector Terry Gaither, and
Milton Zimmerman an MSHA Supervisor Coal Mine Inspector, went to
the No. 1 Longwall to evaluate the agreed upon changes and
adjustments to the Dust Control Plan ("Plan"), and to determine
if the Operator was in compliance with the respirable dust
regulatory standards.

a. Johnson, as the representative authorized by miners,
("walkaround") accompanied the MSHA inspectors on November 23,
1991 on their inspection.
II.

Further Findings of Fact and Discussion
A.

Discrimination under Section 105Cc)

An analysis of the specific events that transpired during
the time period in question is to be made based upon the
principles established by the Commission in Secretary on behalf
of Robinette v. United Castle Coal Company, 3 FMSHRC 817 (1981).
In Robinette, the Commission held that to establish a prima facie
case of discrimination under Section 105(c) of the Act, a miner
has the burden of proving that (1) he or she engaged in protected
activity and (2) the adverse action complained of was motivated
00 i:n any part 61 by the protected activityo
The operator may rebut
the prima facie case by showing either that no protected activity
occurred, or that the adverse action was in no part motivated by
protected activity. If an operator cannot rebut the prima facie
caseu it nevertheless may defend affirmatively by proving that it
also was motivated by the minerQs unprotected activity and would
have taken the adverse action in any event for the unprotected
activity aloneo
lo

Johnson 9 s version

According to Johnson, on November 23, 1991, prior to the
start of production at the subject site, air readings were taken,
and the spray pressure was noted. Johnson said that once
production was started, he followed the shearer to see if the
sprays were working properly. Johnson related that some sprays
appeared clogged., and he asked the shearer operator if they were

2590

clogged. According to Johnson, the latter's response was "yeah
they're acting up a little again." (Tr. 138). Johnson stated
that he mentioned to Thom Parrott, who was the longwall
coordinator, that it "looked" to him "like the sprays may not be
at seventy percent as required." (Tro 138). Johnson said that in
response Parrott "shrugged his shoulders," and did not say
anything. (Tr. 139). Johnson said that he then told MSHA
Inspector Terry Gaither, who in turn told Parrott that the sprays
may have to be cleaned, and "you a~e getting quite a few stopping
up." (Tr. 140) (sic)). According to Johnson, at that point
Parrott agreed, and the sprays were shut down and cleaned.
According to Johnson, about 15 or 20 minutes after he had
pointed out the clogged sprays to Parrott, Parrott asked to see
him alone. Johnson said that Parrott then told him that he was
not on his own inspection, was not an inspector, and was to "quit
pointing things out." (Tr. 143) Further, according to Johnson,
Parrott told him that he had·not been staying in the immediate
vicinity of the inspectors, and that he (Parrott) did not want to
catch him away from them again. Johnson stated that his response
was to say "Ah come on." (Tr. 144), but that he may have said
that phrase harshly. He said he then walked away to the dinner
hole. contemporaneous notes taken by Johnson, in essence,
corroborate the version he testified to at the hearing.
Johnson further testified, in essence, that at approximately
1:00 p.m., the inspectors stopped to talk to a miner. He said
that when they stopped he was approximately 15 to 20 feet ahead
of them, and he stopped and looked at the shearer. According to
Johnsonu while he was waiting for the inspectors, Parrott
approachedu and told him that he was being relieved of his
dutieso Johnson said that Parrott told him that he was relieving
him of his duties because he was not staying in the immediate
vicinity of the inspectoro According to Johnson, after he was
relieved of his duties, Parrott said that he wanted to talk to
him "alone with Danny Watts. In (Tr. 157) (sic) Parrott did not
tell him why he wanted
talk to himo Johnson said that he did
not go
talk to Parrott because he was afraido
~0

Parrottvs version

According
Parrottu
approximately 9~43 a.m.v on
November 23 0 Johnson was observed looking at the shearer at the
tailgate. Parrott said that the shearer was down at the time,
and the inspectors were 250 and 300 feet away. Parrott indicated
that this was the first time that he had seen a safety
committeeman or a walkaround "go off on his own like that."
(Tr. 458). Parrott called Richard Donnelly, who was the Deputy
Mine Manager at the subject mine, and asked him if it was legal
or within Respondent's work rules for Johnson to leave the
·
general vicinity of the inspectors, and Donnelly said "no."

2591

(Tr. 458) Donnelly told Parrott to take Johnson aside, and not to
confront him, but to tell him not to make his own inspection.
Accordinq to Parrott, after he spoke to Donnelly, he found
Johnson alone at the headqate drive. Parrott said he told
Johnson that he was not to wander off and make his inspection,
and that it was company policy for him to remain with the
inspectors. Parrott said that Johnson's response was as follows:
"Under the Act, I have full access to this mine, I can come and
qo as I damn well please and I will." (Tr. 461). According to
Parrott, Johnson further said "If this is somethinq personal,
maybe you and I can step off the property after the shift and
settle it." (Tr. 461) Parrott said that Johnson then "got anqry"
and went to the dinner hole. (Tr. 461).
Parrott stated, in essence, that the next time he saw
Johnson, he was 1'around the corner ••• out of sight of the
inspectors" (Tr. 463). He indicated that Johnson was 30 or 40
feet from the inspectors. Parrott said that he gave Johnson a
464) Parrott stated that Johnson became "real argumentative."
(Tr. 464) Accordinq to Parrott, Johnson said that "he did not
give a damn what I said" (Tr. 464), and pointed out that the
inspectors were only 15 feet away. Parrott said he then
requested Johnson to step away, as he wanted to explain to him
that if he would disobey an order, he would be suspended.
Parrott said that Johnson refused the request and at that point
he told Johnson that he was giving him a "direct order" to walk
over to him (Parrott) (Tr. 465). According to Parrott, Johnson
said "do you really want me to put some heat on your ass do you
want me to come down here and inspect this lonqwall." (Tr. 467).
Parrott said he then used the term "direct order" and asked
Johnson if he understood what follows by disobeying a "direct
order 1'n Parrott said Johnson responded by saying he did not
careo
that pointu Parrott informed Johnson that he was being
~uspended with the intent to discharge for insubordination.
3.

Discussion
Protected Activities

In essence 0 Respondent arguesu inter alia, that the
Secretary has failed to establish a prima facie case in that he
has not proven that Johnson was engaged in any protected
activities. SpecificallYu Respondent argues that there is no
evidence that Johnson was out of the presence of the inspectors
for the purpose of aiding the inspectors. Respondent also argues
that there is not any evidence that Johnson left the inspection
party at the request of the inspectors. For the reasons that
follow, I find that the Secretary has established that Johnson
was engaged in protected activities.

2592

The Section 105(c) discrimination complaint filed by the
Secretary is based upon an alleged discrimination against Johnson
while he was exercising rights under Section 103(f) of the Act.
Section 103(f) of the Act, as pertinent, provides that an
authorized representative of miners shall be given an opportunity
to accompany an inspector during an inspection" ••• for the
purpose of aiding such inspection •••• " The Legislative History
of Section 103(f) supr~ indicates the importance of the right of
miners' representatives to accompany an inspector. Congress
concluded that participation of miners in inspections "will
enable miners to understand the safety and health requirements of
the Act and will enhance mine safety and health awareness."
(Legislative History, at 616, supra). The language of Section
lOJ(f) of the Act supra, indicates that the right of a
representative to "accompany" an inspector is "for the purpose of
aiding such inspection."
(1)

Aiding the Inspection

Milton Zimmerman, a supervisory coal mine inspector,
testified that, in general, a safety committeeman (representative
of miners) assists in a dust inspection by checking sprays,
talking with miners, and checking if the shields are being
washed. Although neither Zimmerman, nor MSHA Inspector Terry
Gaither, made any specific request of Johnson to do anything to
aid them in the inspection, Zimmerman remarked as follows"··· it
didn't make any difference whether Mr. Johnson was with me or
whether he was on a tailgate because he was assisting us on the
inspection. And had he been on the tailgate or lonqwall which is
1000 feet awayu he was assisting on the inspection." (Tr. 69).
Based on this testimonyQ I find that Johnson°s presence in the
inspection party was aiding the inspection.
(2)

Accompanying the Inspector

Webster~s Third New International Dictionary (1986 edition)
defines 09 accompany 19 as follows~ ~~ (1) to go with or attend as an
associate or accompany? go along with. uu ij'With 91
defined 9 inter
alia as follows • . • 91 4a ••• used as a function word to indicate
one that shares in an action, transaction, or arrangement.'*
Applying the common meaning of the word "accompany ,eQ I find that
there is no requirement in Section 103(f) for a representative of
miners to be within a specific distance from the inspectors. It
is sufficient if the representative "shares in an action." I
find that Johnson, in the locations observed by Parrott, was part
of the general action of the inspection. It would be unduly
restrictive to find that a miner's representative is beyond the
scope of Section 103(f) supra, unless he is at a location at the
specific request of an inspector, or engaged in a specific action
to aid the inspector at the latter's request. To the contrary,

2593

as explained by Zimmerman, Johnson's presence in the general area
was aiding the inspectors. Accordingly, broadly construing
Section 103(f) supra, 2 I find that given the framework of the
specific inspection at issue, i.e., to evaluate the effectiveness
of the changes to the Plan, Johnson's presence on the section
other than within a few feet of the inspectors was within the
scope of Section 103(f) rights. Hence, I conclude that Johnson
was engaged in protected activities on November 23.
b.

Motivation
(l)

Johnson's version

In essence, according to Johnson, when he was at the
headgate at the beginning of the shift, he told Parrott that it
looked to him "that the sprays may not be at 70 percent as
required." (Tr. 138). Johnson's contemporaneous notes also
indicate that at 10:30 a.m., he pointed out as follows: "less
than 70 percent sprays on H.G. 11 • Johnson indicated that Parrott
did not say anything, but that approximately 15 or 20 minutes
later, Parrott told him that he was not to be on his own
inspection, and to quit pointing things out. In contrast,
Parrott stated that Johnson did not point out that 70 percent of
the sprays were not operating. He also denied telling Johnson
that he (Johnson} was pointing things out to the inspectors.
Parrott also stated that he was not aware that Johnson was
pointing things out to the inspectors on the lonqwall. In this
connection, Respondent argues that no other witness corroborated
Johnsonis testimony that he had pointed things out, 3 and no
citation was issued on the basis of any alleged insufficient
sprays., In this connectionv Zimmerman indicated that Johnson did
not
him that anything was wrong with the sprays. Howeverv
version testified by Johnson finds corroboration in the
2

In generalp Congress manifested its intent that the scope
protected activities under Section l05(c) be broadly
interpreted (S. Rep. No. 95-181 1 95th Cong.v 2d Sess.v reprinted
in Legislative History of the Federal Mine Safety and Health Act
of 1977 at 623 ("Legislative History"). Given this intent, it
might be reasoned that Congress similarly intended a broad
interpretation to be accorded rights under Section 103(f) sypra,
where these are the basis of protected activities under Section
l05(c) supra.
3

Johnson said that he told MSHA Inspector Terry Gaither
that he thought that some of the sprays were "stopping" up
(Tr. 140). Gaither did not testify to corroborate Johnson.
Based on my observations of Johnson's demeanor, I find his
testimony credible on this point.

2594

testimony of Richard Donnelly, who was the deputy mine manager.
Donnelly indicated that when Parrott called him between 10 and
11:00 a.m., on November 22, to ask him if a safety committeeman
is allowed to make his own inspection, Parrott told him that
Johnson was pointing things out to the inspectors. Hence, for
these reasons, and also based upon my observation of the
witnesses• demeanor, I accept the version testified by Johnson,
and find that he did point out problems with the sprays.
According to Johnson, at approximately 1:00 p.m., when he
was about 15 or 20 feet ahead the inspectors, Parrott told him
that he was relieved of his duties for not staying in the
immediate vicinity of the inspectors.
(2)

Parrott's version

According to Parrott, when he initially advised Johnson that
it was the company's "position" (Tr. 460) that he remain with the
inspectors, Johnson said "if.this is something personal, maybe
you and I can step off the property after the shift and settle
it." (Tr. 461). Parrott testified at the second time when he
spoke to Johnson and gave him a "direct order" to stay with the
inspectors, Johnson stated as follows "do you really want me to
put some heat on your ass, do you want me to come down here and
inspect this longwall." (Tr. 467). On direct examination Parrott
maintained that the fact that Johnson defied an order to stay
with the inspectors did not have anything to do with the decision
to suspend Johnson. He further said, in essence, that Johnson's
position vis-a-vis the inspectors did not result in his
discharge. Parrott said that Johnson's refusal to come over and
discuss the situation with him was the main reason for the
suspension in combination with threats that Johnson had madee
Parrottrrs contemporaneous notes corroborate his testimony
that he had given Johnson "direct orders'' to stay with the
inspectors. However, the notes do not indicate that he gave
Johnson a "direct order" to come to him and discuss the
situation. On cross-examination Parrott indicated that he was
not sure if he used the words 91 direct order" when he told Johnson
to walk over to him. Parrott also indicated that he could not be
sure if used the words "direct order", since he did not write it
in his notes. In either event, it is critical to note that on
cross-examination Parrott indicated that the fact that Johnson
defied his 1'direct orderQ1 to stay with the inspectors eo •• was
tied in" to the decision to suspended him. (Tr. 527).
o

Donnelly testified that, in the second conversation he had
with Parrott on November 23, the latter informed him that he had
a "confrontation" with Johnson and had told Johnson "that he was
again making his own inspection." (Tr. 350) (sic). According to
Donnelly, Parrott then informed him that he had told Johnson
"several times" to come and talk to him "about it" and Johnson

2595

refused. (Tr. 351). Donnelly further stated as follows: "And as a
result of that, Thom (Parrott) informed me that he had given him
five days with intent and relieved him of his job duties."
(Tr. 351). Donnelly stated that he told Parrott that he wasn't
sure if he agreed with him and he in turn contacted Willis
Coates, the mine manager of No. 7 Mine, and J.T. Piper, the
senior vice president of operations, to "discuss it." (Tr. 352).
Neither Coates, nor Piper testified. Donnelly did not testify
either as to specifically what he told Coates and Piper, or what
he asked them. Neither did Donnelly testify to what Coates and
Piper told him. Donnelly indicated that after speaking with
Piper and Coates he informed Parrott to have Johnson "go to the
end of the track." (Tr. 354). He stated that he also told John
Looney, the mine foreman, who was Parrott's superior, that there
was a personnel problem, and that he should go to the longwall
and Parrott would explain it to him. (Tr. 354). Subsequently, at
the beginning of Johnson's shift on November 25, 1991, Donnelly
instructed Looney to administer to Johnson a five day suspension
with intent to discharge. In the RECORD OF DISCIPLINARY ACTION
served on Johnson, Donnelly had Looney state the following under
the heading REASON FOR DISCIPLINARY ACTION:
Work Rule #7 Work Rule #1
Employee refused a direct order 4
Employee threatened supervisor & company. (Exh. G-19).
Donnelly indicated that the fact that Johnson had been
given a "direct order" to stay with the inspectors and not to be
making his own inspection was not the reason why he instructed
Looney to give Johnson a five day suspension with intent to
dischargeo (Tr 416) In the context of his directions to Looneyu
Donnellv was asked whether he considered the fact that Johnson
had disobeyed an order to stay with the inspectoru and had
disobeyed an order not to be making his own inspection, and he
answered as follows~ "Iud answer that no." (Tr. 416). However,
in earlier cross-examination he was asked whether it was true
that one of the bases for the disciplinary action was that
09 direct orderuo from Parrott not to be making
,J'ohnson refused
his own inspection 9 and he answered as follows: "That is part of
the circumstances that lead up to my feeling that he was
insubordinatsu yeah. 00 (Tr. 415).
n

4

Donnelly said that the order that was referred to was the
"direct order" given to Johnson to walk away from the miners who
had gathered so that Parrott could discuss the matter with him.

2596

(3)

Conclusions

Given the above sequence of events, as set forth in the
testimony of Johnson that I accept, and considering the testimony
of Parrott and Donnelly on cross-examination, I conclude that the
decision by Parrott to discipline Johnson, which was apparently
affirmed by Donnelly, was motivated in part by Johnson's refusal
to follow Parrott's order to stay with the inspectors. In this
connection, I have concluded above, II(A) (3) (a) infra, that
Johnson was engaged in protected activities, and was not outside
the scope of these activities when he was not in the immediate
vicinity of the inspectors. According to the testimony of
Parrott on cross-examination, the fact that Johnson defied his
order to stay with the inspectors was "tied in" to the decision
to suspended him. Considering this testimony and the sequence of
events, presented herein, I conclude that it has not been
established that Respondent would have fired Johnson for his
unprotected activities alone, i.e., the threats he allegedly made
to Parrott, and his refusal to follow an order to walk over to
Parrott and discuss the problems that had arisen that morning. 5
Hence, I find that the Secretary has established a prima facie
case which has not been rebutted by Respondent. Nor has
Respondent established an affirmative defense.
c.

Penalty

In essence, Intervenor argues for the imposition of a
$10,000 penalty based upon the history of violations, negligence,
and the lack of good faith of Respondent in abating the
violationo 6
5

As correctly argued by the Secretaryp the fact that
Johnson did not remain in the immediate vicinity of the
inspectors, which was not outside the scope of protected
activitiesp was the catalyst which triggered the subsequent
orders given to him by Parrott to step over and talk to him. In
other wordsu this order, and the prior direct order given by
Parrott to Johnson to stay with the inspectors and not to conduct
his own investigation were inseparable.
The defiance of either
of these orders alone cannot be isolated as a independent motive
for the discharge.
6

The Secretary seeks to bring to my attention Secretary of
Labor on behalf of Donald B. Carson v. Jim Walter Resources, Inc.
15 FMSHRC 1992 (September 29, 1993 (Judge Maurer), and Secretary
of Labor on behalf of James Johnson and UMWA v. Jim Walter
Resources, Inc., 15 FMSHRC
(Docket No. SE 93-127-D,
November 18, 1993) (Judge Fauver). Neither of these cases
involve the same violation as the case at bar, i.e., Section

2597

(1)

History of Previous Violations

Intervenor urges that cognizance be taken of adverse actions
of Respondent against UMWA officials. In this connection,
Intervenor refers to the testimony of Darrell Dewberry, District
No. 20 union executive board member that when he was a member of
the Union Safety Committee, he had been disciplined in 1981, for
reporting adverse roof conditions. Dewberry filed a Section
105(c) complaint that subsequently was settled. Also, Dewberry
testified that Union Safety Committeeman Don Nelson had been
disciplined for reporting an unsafe condition. A Section lOS(c)
complaint was subsequently brought by the Secretary on behalf of
Nelson. That case was subsequently settled, and a decision was
issued by Commission Judge Melick approving the settlement which
required Respondent to pay a penalty of $2,000. Intervenor
further cites the testimony of Larry Spencer that he was
disciplined for filing a safety complaint in April, 1991.
Spencer filed a Section 105(c) complaint which was subsequently
withdrawn when a grievance filed by him was resolved. Also,
Tommy Boyd, a member of the safety committee testified that he
was disciplined in 1989 by Parrott because he asked that a
methane monitor be calibrated. Boyd did not file a Section
lOS(c) complaint.
Among the factors required to be taken into account in
assessing a penalty by a Commission Judge is an operator's
"history of previous violations" (Section llO(i) of the Act)).
In evaluating the congressional intent in enacting this phrase, I
note the following language set forth in the report issued by the
Senate Committee on Human Resources on the bill that became the
Actg "In evaluating the history of the operator's violations in
assessing penaltiesu it is the intent of the Committee that
repeated violations of the same standard particularly within a
matter of a few inspections, should result in a substantial
increase in the amount of the penalty to be assessed." (S. Rep.
No. 181 at 43, Legislative History, at 631). (emphasis added). In
considering what evidence is to be taken into account in
evaluating an operator 1 s Q'history of previous violations," I
initially note that in order for a record of an incident to be
considered part of a 11 history of previous violations," this
incident must result in a citation that has not been vacated, 7
103(g), nor the engagement in the same protected activities that
were retaliated against. Accordingly, they were not accorded
much weight in evaluating Respondent's history of previous
violations or the gravity of the violations found herein.
7

See, Youghiogheny and Ohio Coal Company, 7 FMSHRC 200, at
203 (1985).

2598

or at least there must be a "final determination" by the
Secretary that a violation has occurred (See, Peggs Run Coal
Company, Inc.,) 5 IBMA 144, 150 (September 22, 1975).
I find that the testimony relied on by Intervenor is
insufficient to increase the appropriate penalty on the basis of
Respondent's history of previous violations. In this connection,
I note that Intervenor has not cited any "history of previous
violations" similar to the one at issue, i.e., interference with
the right of a walkaround who was not in the immediate vicinity
of the inspectors.
(2)

Negligence and Good Faith in Abatement

After Parrott ordered Johnson to go to the end of the track,
Zimmerman was informed that Johnson had been relieved. Zimmerman
informed Donnelly and Parrott that the inspection could not be
continued without miner repr~sentation, and that the "b" 8 order
would be reinstated. In essence, Parrott asked Johnson and
Zimmerman to name a replacement to serve as the walkaround, and
they each refused. Zimmerman issued a citation alleging a
violation of Section 103(f). Zimmerman informed Parrott and
Donnelly that if miner representation was not allowed, he was
going to reinstate the "b" order. 9
The following Monday, Johnson reported for work and was
instructed to go to see the foreman. Based on Donnelly's
instructions, Johnson was then given a notice of a five day
suspension with intent to discharge. The following day, Willis
Coates, the mine manager, called Darrell Dewberry, the UMWA
District Noo 20 executive board memberu and requested him to tell
Johnson to report work for his next shift. Dewberry was further
told to inform Johnson that Respondent would compensate him for
all lost waqeso Johnson was in fact so compensated.
The violation of Section 105(c), supra, initially occurred
on November 23u when Parrott ordered Johnson to leave the work
area. on JohnsonQs next regular shift on November 25 1 further
8

On November 22, 1991, Respondent was issued a Section
104(b) u Order (No. 3805276) 0 alleging excessive respirable dust
on the Noo l Longwall Section.

9

According to Parrott, Zimmerman informed him that he was
going to issue a citation and then told them they had 15 minutes
to obey it or "it becomes a "b" order." (Tr. 472). According to
Parrott at that point he then called Donnelly who told him to
reinstate Johnson.

2599

adverse action was taken against him when he was suspended for
five days with intent to discharge. However, the following day,
Johnson was reinstated and subsequently compensated for all lost
wages. Hence, Johnson did not incur any damages as a consequence
of the discriminatory action taken against him by Respondent. 10
Based on all the above, I conclude that a penalty of $2,000
is appropriate for the Section 105(c) violation.
d.

Relief
It is ordered as follows:

1.
Respondent and its agents shall comply with
Section 103(f), and shall cease and desist from seeking to
intimidate Complainant and other members of the Health and Safety
Committee from asserting rights under Section 103(f) supra.
2.
Respondent shall post a notice on the mine
bulletin board stating that it will not violate Section 105(c)
supra, in the future.
3.
Respondent shall expunge and destroy all
reference, and copies of all documents, from any and all records
of Respondent related to complainant about the events and actions
which took place from November 23 through November 26, 1991.
4.
Respondent shall pay $2,000 within 30 days of this
decision, as a civil penalty for the violation of Section 105(c),
supra.
Bo

Violation of Section 103(f)

In essenceu Section l03(f) of the Act provides for a
representative of miners to accompany inspectors to aid in their
inspection. The legislative history of Section 103(f) manifests
the importance that Congress placed on this right as it found
"chat such participation "will enable miners to understand the
safety and health requirements of the Act and will enhance miner
safety and health awareness. 01 Legislative History, supra, at 6166l7o
As set forth above, II(A) (3) (a) (1) infra, Zimmerman
indicated in general, how a walkaround aids an inspection. When
I note Intervenor•s concern that does not counteract the
chilling effect of his suspension on miners who might be
reluctant to voice safety concerns reasoning that if a Union
walkaround can be fired for engaging in protected activities,
then the operator would not hesitate to fire them for similarly
engaging in protected activities. I find this argument to be too
speculative.
10

2600

617. As set forth above, II(A) (3) (a) (1) infra, Zimmerman
indicated in general, how a walkaround aids an inspection. When
Johnson was observed by Parrott he was not in the immediate
vicinity of the inspectors. Parrott did not inquiry of him why
he was not with the inspectors, or why he was located where he
was. I found, above, II(A) (3) (a) infra, that Section 103(f) does
not require a walkaround to be, at all times, in the immediate
vicinity of the inspectors. I also found, above II(A) (3) (b)
infra, that when Parrott relieved Johnson of his duties on
November 23, he was motivated, in part, by Johnson's refusal to
follow his order to stay with the inspectors. I thus, find
Parrott's action interfered with Johnson right's as a walkaround
under Section 103(f), and hence Section 103(f) was violated.
1.

Penalty

I find that Johnson was reinstated as a walkaround after
Zimmerman threatened Respondent with the issuance of a "b" order
unless Johnson would be reinstated as a walkaround. This fact is
important in assessing Respondent's good faith in abating the
violation. Also considering Respondent's negligence as discussed
above, II(A) (3) (c} (2) infra, I conclude that a penalty of $1000
is appropriate.
2.

Relief

It is ordered that Respondent pay, within 30 days of this
Decision, $1,000 as a civil penalty for the violation of Section
103(f), supra.

/Ji;;wei~

Administrative Law Judge
Distributiong
William Lawsonu Esq. 9 Office of the Solicitoru u.s. Department of
Laboru Suite l50u 100 Centerview Drive, Chambers Building 1
Highpoint Office Centeru Birmingham, Alabama 35203 (Certified
Mail)
Barry A. Woodbreyu Jr. 9 Esq., United Mine Workers of America,
900 Fifteenth Street, N.W., Washington, D.C. (Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
David M. Smith, Esq., and Mark strength, Esq., Maynard, cooper &
Gale, 1901 Sixth Avenue, North, 2400 AmSouth, Harbert Plaza
Birmingham, Alabama 35203-2602 (Certified Mail)
'
/efw
2601

ADMINISTRATIVE LAW JUDGE ORDERS

PBDBRAL Kl:IIB SUBTY MID HEALTH RBVXBW COKIUSS:tOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 2 l 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. Lake 93-165
A.Co No. 33-00941-03757

Vo

Saginaw Mine
SAGINAW MINING COMPANY,
Respondent
ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Feldman

This case is before me based upon a petition for assessment
of civil penalties filed by the Secretary pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977
(the Act). 30 u.s.c. § 801 et seq. The Secretary has filed a
motion for the approval of settlement concerning the three
citations in issue. These citations concern a fatal roof-fall
accident that occurred at the Saginaw Mine on October 23, 1991.
A mine foreman suffered fatal injuries and a construction foreman
suffered serious injuries as a
of
accident. The
Secretary seeks my approval
reductions in the to~al proposed
penalties from $21u000 to $15u000o
The motion before me contains no specific rationale or
evidence of mitigating circumstances that would support the
proposed reduction in civil penalties. Section llO(k),
30 u.s.c. § 820(
u requires Commission approval of any
settlement agreement in this matter. The Commission must
consider whether the terms of the proposed settlement are
consistent with the six statutory criteria set forth in Section
llO(i) of the Act, 30 u.s.c. 820(i). See Sellersburg Stone
company v. Federal Mine Safety and Health Review Commission,
736 F.2d 1147 (7th Cir. 1984}o
Based upon the absence of supporting information in the
Secretary's motion, particularly in this case which involves a
fatality, I am unable to conclude that the suggested penalty
reduction is appropriate. Accordingly, IT IS ORDERED that the
motion for approval for settlement IS DENIED. IT IS FURTHER
ORDERED that the parties shall provide additional information
specific to each citation supporting their motion for reduction

2602

in civil penalty. The information provided should specifically
address the mitigating circumstances, if any, that warrant a
reduction in penalties. This information should be provided
within 30 days of the date of this order. Failure to timely
provide the requested information will result in the scheduling
of this case for hearing.

Jerold Feldman
Administrative Law Judge
Distribution:
Maureen M. Cafferkey, Esq., Office of the Solicitor, u. s.
Department of Labor, 881 Federal Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
George Basara, Esq., Polito & Smock, Four Gateway Center, Suite
400, Pittsburgh, PA 15222 (Certified Mail)
jll

2603
oU.S. GOVERNMENT PRINTING OFF!CE:l994-301-878/93381