Allan Goode, Employed by Consolidation Coal Company

Plain-English summary

Allan Goode, a section foreman at Consolidation Coal Company's Ireland Mine, faced an individual penalty under section 110(c) of the Mine Act. During roof-support work, Goode helped advance a continuous miner and steady materials while the temporary roof support system was not firmly against the roof, contrary to the mine's roof control plan. Judge William Fauver found that Goode's conduct, anger, and the surrounding conditions gave him reason to know the crew was working beyond the last permanent roof support without adequate temporary support. The Judge concluded that Goode knowingly authorized, ordered, or carried out a violation of 30 C.F.R. § 75.220(a)(1) and assessed a $1,000 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The section 110(c) violation was found and Allan Goode was ordered to pay a $1,000 civil penalty.
• Subsequent review: The Commission later issued a decision in weva-91-2096-commission.
• Key point: A supervisor's conduct can support a knowing-violation finding when the surrounding facts gave the supervisor reason to know that roof-control requirements were not being followed.

Full text (FMSHRC public release)

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 91-2096
Petitioner : A.C. No. 46-01438-03900A
:
v. : Ireland Mine
:
ALLAN GOODE, Employed by :
CONSOLIDATION COAL COMPANY, :
Respondent :

                            DECISION

Appearances: J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
David J. Hardy, Esq., Charleston, West Virginia,
for Respondent.

Before: Judge Fauver

  This is a petition for a civil penalty against a foreman

under 110(c) (Footnote 1) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

1 Section 110(c) provides: "Whenever a corporate operator
violates a mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order issued
under this Act or any order incorporated in a final decision
issued under this Act, except an order incorporated in a decision
issued under subsection (a) or section 105(c), any director,
officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall
be subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and (d)."

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FINDINGS OF FACT

 1.   At all relevant times, Consolidation Coal Company

operated Ireland Mine in West Virginia, producing coal for sale
or use in or substantially affecting interstate commerce.

 2.   Respondent, Allan Goode, was employed by Consolidation

Coal Company as a section foreman at the Ireland Mine for 23 of
his 26 years at the mine, supervising seven to nine miners. His
typical crew consisted of two roof bolters, a continuous miner
operator, a loading machine operator, two shuttle care operators,
a mechanic and sometimes two center roof bolters.

 3.   On or about March 8, 1990, (Footnote 2) Goode's crew

was cutting an overcast in the 3 North Face Section. An overcast
requires a higher cut than normal because two entries will cross
over the area. In addition, 12 foot planks are installed on 2
1/2 to 3 foot centers with wire mesh. Without an overcast, roof
planks are normally on 4 foot centers and wire mesh is not used.

 4.   Goode's crew was using a 1036 Jeffrey Continuous Miner

Machine. George Holmes was the miner operator, the left bolter
was Donald Conner, and the right bolter was Charles Minor. The
continuous miner was equipped with a mounted, or "integral," roof
bolting machine and plank jack on each side of the miner, and an
automated temporary roof support system ("ATRS") of four jacks
(two jacks on each side of the miner).

 5.   Permanent roof support in the overcast required double

planks with wire mesh and, if necessary, cribbing boards to fit
irregular places in the roof. To build an overcast, the
continuous miner cuts down existing roof support and cuts into
the roof to raise the height for the overcast. The miner is then
backed up to a supported roof area, where a double plank, a
section of wire mesh, and if necessary cribbing boards are
stacked on the plank jacks. The miner is then trammed forward
and the ATRS jacks are raised firmly against the roof. After
that is done, the roof bolters raise the plank jacks, drill the
roof holes and install roof bolts pinning the double plank and
materials to the roof. The ATRS is then lowered and the cycle is
repeated.

 6.   The two plank jacks on the continuous miner were

between the front and rear ATRS jacks. The roof control plan
provided that the roof bolters "will not advance inby the last
permanent [roof] support until the ATRS system is placed firmly
against the roof." Each crew member was fully aware of this
requirement.

2 The petition alleges a violation on March 9, 1990. The
witnesses were not in agreement whether the incident in question
was on March 8, 1990, or March 9, 1990. My finding is that it
was on or about March 8, 1990. This is not a significant
variance.

~2108

 7.   On the night in question, the crew installed the first

plank without incident. When they were installing the second
plank, pieces of the roof fell, knocking down the mesh, cribbing
boards and plank. Goode came upon the scene when members of the
crew were trying to free the wire mesh from rocks that had fallen
from the roof.

 8.   Goode was known for having a short temper, and became

angry on the spot. He asked the miners "What in the hell is
going on?" and impatiently stated that "one man" could do the
job. With that, Goode climbed up on the continuous miner and
helped to restack the plank, mesh and cribbing boards on the
plank jacks. The miner was trammed forward to the new plank
position. The ATRS jacks were raised. Goode, on top of the
continuous miner and crouching between the front and rear ATRS
jacks, steadied the stacked material on the plank jacks, waiting
for the bolters to raise the plank jacks and bolt the plank. The
stack held by Goode came loose, and a plank fell against Charles
Minor, hitting him on the head. Minor told Goode, "This is
unsafe" and Goode replied, "So is walking down the street, but we
have to do it." Tr. 80. Minor and other members of the crew
were intimidated by Goode's angry tone and manner; they had come
to recognize Goode's displays of temper as permitting no response
or explanation from a subordinate, evoking only silence and
motivation to "keep out of his way."

 9.   Goode and the crew restacked the material on the plank

jacks and Goode again steadied the material, crouching between
the ATRS jacks, while the bolters lined up the auger holes and
raised the plank jacks. Goode left as the bolters were drilling
through the plank between the ATRS jacks.

 10. During the bolting of the second plank, the ATRS system

was not firmly placed against the roof. The left ATRS jacks were
not touching the roof because of the cavity left by the roof
fall. The left front jack was 12 to 18 inches from the roof and
the left rear jack was not touching the roof. This meant that
Goode and the two roof bolters worked outby the last permanent
roof support when the ATRS jacks were not firmly placed against
the roof. This was a violation of the roof control plan.

 11. Page Whorton was on the left side of the miner and

observed that the two left-side ATRS jacks were not touching the
roof. He told the left roof bolter, Conner, that the left jacks
were not touching the roof. Conner immediately said "something"
to Goode but Wharton could not hear the words. Goode continued
with the process of having the crew install and bolt the second
plank outby the last permanent roof support.

 12. Wharton did not tell Goode the ATRS system was not

firmly against the roof because (1) he told Conner and Conner
immediately spoke to Goode, (2) he assumed Goode knew the ATRS
was not firm against the roof and that Goode decided to install
the second plank despite this fact, and (3) he was intimidated by
Goode's angry manner and voice.

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 13. Charles Minor, the right bolter, observed that at least

one of the left ATRS jacks was not touching the roof. He did not
tell Goode because (1) he felt intimidated by Goode's angry
remarks to him and (2) he assumed that Goode knew the ATRS system
was not firmly against the roof and that Goode decided that,
despite this fact, he wanted the crew to drill and bolt the
second plank. They did so, even though this violated the roof
control plan.

 14. Donald Conner, the left roof bolter, testified that he

did not see the ATRS jacks and could not tell whether or not they
were touching the roof. He testified that he told Goode they
were having problems and that if the ATRS did not reach the top
they should get jack extensions or put blocks under the miner
cleat tracks, to raise the ATRS to reach the top. Tr. 150.
Goode testified that no one said anything to him about jack
extensions or suggested to him in any way that the ATRS was not
firm against the roof, and that he could not see the ATRS jacks
because he was crouched on top of the miner, steadying the stack
of materials on the plank jacks.

 15. Charles Minor reported the incident to David Clarke,

the UMWA Safety Committeeman, because he felt that Goode was
responsible for violating the roof control plan. The union
requested MSHA to investigate the matter under 103(g) of the
Act. On March 19, 1990, an MSHA inspector investigated and cited
the corporation for a violation of the roof control plan. On
March 22, 1990, the company notified Minor and Conner they were
suspended with intent to discharge for violating the roof control
plan. The company did not take action against Goode. The
company paid a civil penalty of $1,300.00 for the roof control
violation, without contest.

 16. The discharge decision went to arbitration under the

labor management contract. The arbitrator found that the company
had cause to discipline Minor and Conner but "compelling
extenuating circumstances" mitigated against discharge.
Specifically, the arbitrator found that "Foreman Goode, acting on
behalf of, and as mine management, had such knowledge of the
precipitant commission of the violation as to constitute culpable
fault by management." Exh. G-12, p. 7. The arbitrator reversed
the discharges and ordered suspensions of Minor and Conner
without pay from March 22, 1990, until their next scheduled
workshift after his decision on April 3, 1990.

            DISCUSSION WITH FURTHER FINDINGS

 On or about March 8, 1990, Goode and his crew installed a

plank, mesh and cribbing boards outby the last permanent roof
support when the ATRS was not firm against the roof. The crew
had never done this before. They knew it violated the roof
control plan and that if ATRS jacks did not reach the roof, they
should use jack extensions or put blocks under the cleat tracks
of the miner to be sure that the ATRS was firm against the roof.
The main explanation for the crew's conduct that night is Foreman

~2110

Goode's behavior. His demeanor in losing his temper and
screaming at employees made it very difficult for subordinates
to tell him the ATRS was not engaged properly. His actions
indicated to the crew that he was angry about the delay in
installing the second plank; by angrily standing on the miner and
steadying the plank for drilling, he indicated that he wanted the
crew to advance the miner, line up the augers, drill the roof
holes, and bolt the plank to the roof without further comment or
delay. The arbitrator found that Goode displayed "culpable fault
by Management" in connection with the violation by the roof
bolters. I similarly find that Goode was at fault based on the
evidence in this case.

 Although Goode contributed to a violation of the roof

control plan by his conduct (intimidating the crew and showing an
angry, aggressive intention to install the second plank without
further comment or delay by any of the crew), the question under
110(c) of the Act is whether, as an agent of the corporation
he "knowingly authorized, ordered, or carried out such
violation ...."

 Section 3(c) of the Act defines "agent" as "any person

charged with responsibility for the operation of all or part of a
coal or other mine or the supervision of the miners in a coal or
other mine." This includes section foremen.

 The Commission has interpreted the term "knowingly" as

follows:

      "Knowingly," as used in the Act does not have
      any meaning of bad faith or evil purpose or
      criminal intent. Its meaning is rather that
      used in contract law, where it means knowing
      or having reason to know. A person has
      reason to know when he has such information
      as would lead a person exercising reasonable
      care to acquire knowledge of the fact in
      question or to infer its existence. 92 F.
      Supp. at 780. We believe this interpretation
      is consistent with both the statutory
      language and the remedial nature of the Coal
      Act. If a person in a position to protect
      employee safety and health fails to act on
      the basis of information that gives him
      knowledge or reason to know of the existence
      of a violative condition, he has acted
      knowingly and in a manner contrary to the
      remedial nature of the statute.

Secretary v. Richardson, 3 FMSHRC 8, 16 (1981), 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983).

 There is no testimony that anyone told Goode directly that

the ATRS did not reach the roof, and the evidence is unclear
whether Goode could see the jacks from his crouched position on

~2111

the miner. I credit Whorton's testimony that he told Conner that
the left ATRS jacks did not reach the roof and that Conner
immediately spoke to Goode. However, Conner testified that he
told Goode if or in case the ATRS jacks did not reach the roof
they should get jack extensions or put blocks under the miner
cleat tracks.

 The deciding issue is whether Good had reason to know that

the ATRS was not firmly placed against the roof. Goode knew that
there was a roof fall that left a cavity about 1 1/2 feet deep by
about 6 to 8 feet long, and the cavity ran from the left side of
the miner to the right (as Goode looked inby). Tr. 217. He had
reason to believe that at least some of the ATRS jacks would go
into the cavity and might fail to press against the roof. Also,
the wire mesh above the left ATRS jacks did not audibly "crunch"
against the roof and in the circumstances Goode had a reasonable
duty to listen for the crunch. Ordinarily, he could expect the
roof bolters to observe the ATRS jacks and to be sure that they
were pressed against the roof before they advanced to raise and
bolt the plank. However, by his demeanor in (1) screaming at
employees and displaying intense anger at the crew's delay in
installing the second double plank, and (2) angrily climbing up
on the continuous miner to steady the plank while waiting for the
bolters to raise the plank, drill the roof and bolt the plank,
Goode created a safety risk that his crew would be intimidated
and not tell him if the ATRS did not reach the roof.

 I find that Goode's unsafe conduct, combined with a

reasonable likelihood that the ATRS jacks in the cavity would not
reach the roof and the fact that the wire mesh on the left side
did not audibly "crunch" against the roof, gave Goode reason to
know (Footnote 3) that the roof control plan was being
violated. I therefore find that Goode "knowingly authorized,
ordered or carried out [a] violation" within the meaning of
110(c) of the Act.

 Impatience and anger by a supervisor are not conducive to a

safe working environment or compliance with safety standards.
Goode's conduct endangered Goode, who steadied the plank outby
the last permanent roof support, and endangered the two bolters,
who drilled the roof and bolted the plank outby the last
permanent roof support. (Footnote 4)

3 "A person has reason to know when he has such information as
would lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its existence."
Secretary v. Richardson, supra, 3 FMSHRC 16.

4 I do not accept the suggestion by Conner's testimony that the
bolters were under supported roof when they drilled and bolted
the plank. He suggested that they did not have to extend their
bodies beyond the last roof support and could steady the plank,
drill the roof, and bolt the plank within "arm's length" of the
last roof support. I find that the roof control plan forbade

~2112

 Considering the applicable criteria in   110(i) for

assessing a civil penalty, I find that a penalty of $1,000.00 is
appropriate for this violation.

                      CONCLUSIONS OF LAW

    1.   The judge has jurisdiction.

 2.   Respondent knowingly violated 30 C.F.R.   75.220(a)(1)

(roof control plan) within the meaning of 110(c) of the Act.

                             ORDER

 WHEREFORE IT IS ORDERED that Respondent, Allan Goode, shall

pay a civil penalty of $1,000.00 within 30 days from the date of

                                     William Fauver
                                     Administrative Law Judge

Distribution:

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Fourth Floor, Arlington,
Virginia 22203 (Certified Mail)

David J. Hardy, Esq., Jackson and Kelly, 1600 Laidley Tower, Post
Office Box 553, Charleston, West Virginia 25322 (Certified Mail)

/fcca

advancing beyond the last roof support -- whether by an arm, a
leg or the entire body.