Cecil Matney, Jr. v. Rockwell Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Cecil Matney developed black lung disease and exercised his Part 90 right to work in a lower-dust environment. The judge found that Rockwell Mining kept him as a move crew foreman whose required duties exposed him to excessive dust and changed his work conditions while dust sampling occurred. Rockwell did not fully comply until it moved Matney to outside work on May 24, 2023. The judge sustained the section 105(c)(3) complaint and notified the Secretary to seek a civil penalty, but rejected Matney's claims that a short-lived raise discrepancy was discriminatory or that he proved entitlement to additional Saturday pay. The Commission later affirmed the Part 90 violation in result, applying an interference analysis rather than the ALJ's discrimination rationale.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c) and 30 C.F.R. Part 90
• Outcome: The Part 90 complaint was sustained, while the raise and supplemental-pay claims were rejected.
• Subsequent review: The Commission affirmed the Part 90 violation in result in weva-2023-0126-commission.
• Key point: An operator cannot leave a Part 90 miner in a job whose required duties make compliant dust exposure impracticable.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

|
CECIL MATNEY, JR., Complainant
v.
ROCKWELL MINING, LLC, Respondent |
|
|
DISCRIMINATION PROCEEDING
Docket No. WEVA 2023-0126
Mine: Gateway Eagle Mine Mine ID: 46-06618 |

__DECISION __

This matter involves a complaint of discrimination arising under Section 105(c)(3) of the Mine Act. 30 U.S.C. § 815(c)(3). For the reasons which follow, the Court finds that Respondent Rockwell Mining discriminated against Complainant Cecil Matney, Jr. by virtue of repeated violations of the requirements of Part 90 and that as a consequence the Secretary should consider seeking a civil penalty for those violations.

Apart from the Part 90 violations, the Court finds that Mr. Matney suffered no financial loss in connection with a short-lived and non-malevolent clerical error associated with a bonus. Further, the Court finds that Matney is not entitled to his claim of compensation for any supplemental income from Saturday work for two reasons: He is a salaried employee and has been paid in full per that salary, and assuming arguendo that he was entitled to Saturday pay while on the mine’s decision to place him on paid leave of absence, he failed to meet his burden of proof to establish with any precision those Saturdays he would have worked had he not been on the extended leave of absence from his section foreman position.

Introduction:
Cecil Matney’s Discrimination Complaint

---

The Respondent has stipulated
that Mr. Matney is a Part 90 miner. Tr. 6. Briefly stated, Matney’s complaint
began upon submitting his statement to MSHA on September 26, 2022. The
statement initially alleged[1]
that he was not afforded the same pay raise as other similarly situated
foremen, but it was later amplified to include allegations of exposure to
excessive dust in violation of the protections afforded under Part 90. Complaint
at 10. Thereafter, on October 10, 2022, he signed his statement. On November
23, 2022, MSHA issued a letter to Matney stating that it investigated his
complaint but determined that there was not “sufficient evidence to establish
by a preponderance of the evidence that a violation of Section 105(c) occurred.
… However, [MSHA informed that Matney] continue[s] to have the right to file a
discrimination case on [his] own behalf with the [Federal Mine Safety and
Health Review] Commission.” November 23rd
letter at 1. Mr. Matney did just that, filing this Section 105(c)(3) claim
presently before this Court.

On December 23, 2022, Matney, through his legal counsel, filed his formal 105(c)(3) complaint. That document tracked his 105(c) statement, as outlined above. Per the second element in his statement, the Complaint asserts that the mine “fail[ed] to maintain Mr. Matney at all times in a work environment that complies with the respirable dust standards for Part 90 miners.” Complaint at 1. The relief sought in the Complaint is for the Mine Review Commission to

find that the Respondents did violate Section 105(c)(1) of the Mine Act, 30 U.S.C. Section 815(c)(1) through their interference, discrimination, and retaliation in reference to his Part 90 rights, that MSHA issue an appropriate citation, and that the Commission enjoin Respondents from further discrimination and interference, and further relief as set forth herein.

*Id. *

• *

• *Matney asserted in
  his complaint that

when he is not being sampled, he does not receive comparable help. Consequently, he is required to perform excessively dusty job tasks that he is not required to perform while his dust [sampling] pumps are running [on him]. Matney just wants the same number of people assigned to him at all times, on the section, as when he is wearing the dust sampling pumps. Or alternately, he requests that he moved to an outby or outside location that complies with the applicable dust limits at all times.

Complaint at 4.

As will be discussed, ultimately Rockwell did take the appropriate action, as required by Part 90, by moving Mr. Matney to outside work at the mine.

The
essence of Matney’s complaint has two aspects:

**First,
Matney asserts that the company withheld a pay full raise from him that they
afforded to all section foreman at the mine. **

Second, he asserts that the company
interfered with his Part 90 rights by failing to transfer him to a job that
complies with the dust exposure limitations for Part 90 miners.

Matney asserts
that his initial dust sampling was not representative of the work on his shift
because he was told to refrain from his normal tasks when wearing a dust pump
but that, when not being sampled, he is required to do the dusty jobs on his section.[2]
He asserted that the mine provided the help he needed to do his job only when
he was wearing a dust pump.[]

---

Findings
of Fact

Cecil Matney Jr. is 49 years
old. He has more than 24 years of employment with underground coal mining. His
employment with Rockwell began with its Black Oak Mine. In late 2020, or early
2021, he began working where he is currently employed, at Rockwell’s Gateway
Eagle Mine. He was hired as a non-production move foreman on the mine’s third
shift. Tr. 34-36. In sum, his work consisted of fire bossing,[3]
rock dusting and periodic roof bolting. Later, his job was changed to
production foreman. Tr. 46. In March 2022, his health was deteriorating and he
became eligible for Black Lung benefits. At that time he requested a return to
his prior job on the third shift, that move was for the purpose of reducing the
amount of dust he would be inhaling. Tr. 50. His supervisor, Shannon Dolin,
tried to dissuade him from returning to his former position, but Matney told
him his

health is not going to get no better walking across the section. Being downwind of these miners every two hours, it's killing me. I literally could hardly breathe, and I was spitting up blood and coughing up -- I had to do -- I had to do something to make a difference.

Id.

Matney’s
Return to the Move Crew Foreman position.

---

Following a talk with the
general mine foreman, Scott Thompson, Matney was reassigned to his former job
as the move crew foreman.[4]
However, the return to that third shift position still presented too much for
him and consequently on June 25, 2022, he then exercised his Part 90 transfer
rights. Tr. 51-52. At some point in early July 2022 the mine was notified that
Matney had elected Part 90 status. Tr. 138. At the end of the first week of
July, he was then deemed a Part 90 miner and was so informed of that status by
the mine’s safety director, Bill Hardin. Tr. 57.

The mine then ran test
samples, also referred to as ‘engineering samples’[5]
on Matney; two were done on the section and one was outby. Tr. 138-140. Dolin,
Matney agreed, told him that he [Matney] would remain on the section as the
move crew boss, telling him to take care of himself. Tr. 140. Matney agreed
that following that, the mine ran the regular quarterly samples on him in July
2022. *Id. *

However, the return to the
move crew foreman position was not a panacea. Matney informed that he still had
to conduct the fire boss run[6]
every two hours. And, he still had to rock dust the section and he still had
to operate the roof bolt machine periodically. Tr. 54. This prompted him to
start a journal reflecting the tasks he had to perform though he was then a Part
90 miner. Complainant’s Ex. 1 is a copy of Matney’s Journal,[7]
reflecting the tasks he had to perform after becoming a Part 90 miner.

[Matney
first wore a dust pump to measure his dust exposure on July 21, 2022]. The
mine’s safety director, Bill Hardin, was with him then and Matney was told that
the mine was going to keep him outby that night. While Matney was making belt
splices and installing bottom rollers, Hardin told him that work was too dusty.
Matney asserted that when wearing the pump he was told to “take care” of it and
the mine only wanted him to walk across the faces. Tr. 59. Matney’s
interpretation of the “take care of the pump” remark was that it was made for
the purpose of making sure the dust sample would show compliance, an
interpretation supported by his claim that he “was even told on occasions to go
to the intake and sit in fresh air.” Id.

The Court finds Matney’s claim about being directed to sit in fresh air to be credible. Matney contended that, when he was being dust sampled, management provided somebody else to perform the rock dusting duties for him or they wouldn’t dust. Tr. 60. On that July 21st dust pump test, he was not working downwind of the roof bolting machine, nor did he spread rock dust, nor did they cut bottom. Thus, Matney contended that his work activities when wearing a dust pump were not representative of his dust exposure. Tr. 67.

[On
July 28, 2022, Matney’s exposure to respirable dust was measured at .667, an
amount over the allowable limit. Tr. 84]. According to Matney, his journal
entry for July 28-29 recorded that Hardin was with him that evening when he
moved belt, and that for the next night, July 29, Matney cleaned faces, worked
on ventilation, and hung cables. Id. The dust pump failed that night
when he was doing those tasks. Tr. 85.

In further support of his
claim that things were different when being dust sampled from times when no
sampling was being made, Matney asserted that there were instances when he was
not wearing a dust pump and he refused to spread rock dust. His decision to
refuse that task was based on how much dust he’d inhaled that night. There were
also instances when he requested someone to rock dust, but no one was sent, and
he would not rock dust. Matney asserted that there were several such occasions
when management told him that he will rock dust. Thus, it was an order for him
to rock dust. Matney stated that mine superintendent Shannon Dolin told him
that, emphatically. Tr. 60. According to Matney, Dolin “pointed his finger in
[his] face and told [him] that [he] would rock dust every night and grabbed his
hair and shook his head.” Tr. 61. This instance of a command occurred after
Matney had been designated as a Part 90 miner.[8]
Id. The Court credits Matney’s account.

• *

Matney’s stance was that,
unless he had sufficient help, his job was incompatible with being a Part 90
miner. Tr. 62. This is because he would be downwind of many tasks such as roof
bolting, drilling, cutting or trimming bottom, and rock dusting. Id. It is
helpful to visualize the effect of being downwind:

Laboratory and Field Testing (Figure 2), in
Mobile Dry Scrubber Provides Cleaner Air for Downwind Roof Bolter, The National Institute for Occupational Safety
and Health, https://www.cdc.gov/niosh/mining/content/dryscrubber.html.

These dust-related obstacles
meant that Matney was unable to complete all his tasks, and he asserted that
management did not take well to that, inquiring why tasks were not done. Tr.

64. He maintained that this dust exposure problem was frequent, sometimes
    lasting all night. Tr. 65. Matney stated, and the Court notes that this is
    undisputed, that upon his return to the move crew foreman position, there were
    occasions when his crew was short. There was a difference between Matney and
    the mine management as to what that meant. To Matney, it meant that he had to
    do dusty jobs. Matney testified that on such occasions he would have to roof
    bolt, scoop, and flinger dust.[9]
    Challenging that claim, mine management contended that if things couldn’t get
    done with the crew Matney had, and given his need to avoid excessive dust, then
    those tasks simply didn’t get done. Matney told Shannon Dolin about the problem
    with the latter advising that the mine was working on the issue. Tr. 80.

Matney’s Journal reflects that
on August 12th and August 15th, he worked on the section, performing tasks such
as cleaning and dusting, loading out the gob, and operating the bolter. Id. In
contrast, the Journal for August 16th reflects that he wore a PDM
[personal dust meter] ‘dust pump,’ but did not perform roof bolting that
evening. Instead, a ‘red hat’ [i.e. a novice miner] did the bolting so that
Matney could remain in fresh air. Tr. 80-81. The Court finds that this supports
Matney’s assertion that, when wearing a PDM, it was not business as usual, as
accommodations were made for Matney’s known and serious health condition.

Respondent’s Counsel
questioned Matney about his work as the move crew boss during September 2022. Matney
agreed that there were three days in that month, September 22nd, 26th, and the
27th, that he was shorthanded or had to do tasks that were dusty. Tr. 150. Matney
informed that on September 22nd, his crew consisted of himself, two roof
bolters, and a scoop/utility man, but that the scoop man was needed outby. Matney
had no idea why the scoop man was needed outby. Id. Regarding September
26th and 27th, Matney’s crew consisted of two utility men and two roof bolters,
but the utility men were taken outby. Tr. 151.

On redirect, speaking to his September 24th - 25th shift, his journal remarks that he had a work order to dust a section and that Chris Holstein advised that his two utility men would be outby at that time and Matney would have to dust the section. Tr. 189. Matney’s journal stated that on September 26th maintenance chief Pete Green relayed Holstein’s message that Matney had to dust. Tr. 189-190.

With regard to all those three
dates, Respondent’s Counsel asked Matney if the reason those miners were moved
outby was important. Matney did not know why the miners were moved outby. Id.
Still pressing on that issue, Respondent’s Counsel asked if Matney knew if the
reason was that a beltline had ripped and had to be replaced. Again, Matney
stated he did not recall that. Id.

From the Court’s perspective,
those questions did not aid the Respondent’s position, because they support
Matney’s claim that, despite his Part 90 status, he was shorthanded. That the
mine, as suggested by Respondent’s Counsel, had important matters to
address does not excuse the conditions Matney then faced, shorthanded as he
was. Though witnesses for the mine later testified that if Matney was unable to
have tasks completed, they simply would not get done, the Court finds it difficult
to accept that management would have such a cavalier view. This put Matney in
an uncomfortable position, virtually a Hobson’s choice,[10]
as he would either have to accept that tasks would not be done, or he would
have to do them himself. The Court’s assessment of Matney’s character, through
his credible testimony, was that he was not built to dismiss tasks.

Similarly, Matney’s responses
to questions from Respondent’s Counsel concerning events during October 2022
support Matney’s position. Matney agreed that, as with the September crew
issues, there were three days that month, October 13th, 27th, and 31st, when he
was shorthanded or had red hats and consequently that he personally had to do
tasks that were dusty. Tr. 152. For example, on October 13th, Matney had only
an electrician, a greaser, and a Joy representative on his section. His journal
noted that everyone else was outby working on violations. Tr. 153. Matney
disputed that no work involving cleaning, dusting or roof bolting occurred that
night, stating that he might not have done flinger dusting but that he ran a
scoop and cleaned. Id. He maintained that he did ventilation and
cleaning on the 13th. Id. The Court credits Matney’s account of his work
that evening.[11]
Matney agreed with Respondent’s Counsel that MSHA sampled him for dust on
October 24, 2022. Tr. 155.

---

Matney agreed that for
November 2022, there were two days for which he was shorthanded and did tasks
that were dusty. Those days were November 1st and 2nd. Tr. 157-158. On November
1st, there were only two roof bolters. Matney was unsure if the utility man was
off work or needed outby, though he conceded that his journal would have noted
such an absence. Id. He also agreed that on November 2nd, he had two red
hats to clean and dust, a situation that Respondent’s Counsel characterized as
“not a lack of people.” Tr. 158-159.

• *

On November 15, 2022, Matney’s received an order from mine management directing him to stay at home. Tr. 85. According to Matney, this came about because it was time for the mine to conduct the quarterly escapeway walk and, as Matney was the move crew foreman, he had to do that. Tr. 90. The stay-at-home direction arose from Matney’s inability to walk the airways out. Tr. 87. The stay-at-home order lasted until March 3, 2023. However, upon returning to work that March he did perform that walk along with Shannon Dolin on March 4, 2023. Tr. 90-91. It was Matney’s view that walking the intake escapeway to the outside would be a dusty experience, with the dust created by the miners walking the route. Tr. 94.

---

Regarding the mine operator’s decision to impose a paid leave of absence on Matney for the period of November 15, 2022, through March 3, 2023, an approximate leave of some three and half months, Matney agreed that escape drills are required for all miners and that he informed the mine that he could not perform the drill scheduled for November 2022. Tr. 160.

On direct examination of
Respondent’s witness, Christopher Holstein, who was the section boss at that
time, about the circumstances prompting Matney’s leave of absence, Holstein’s
related that Matney informed him that others would have to do the intake drill
and in effect warned that if he had to do it, they would need an ambulance outside
waiting for him. Tr. 236-237. The upshot was apparently that Holstein had his
third shift fire boss[12]
do the task. Tr. 237. Holstein agreed that he was referring to a fire drill and
the weekly intake exam. Id. As for the intake examination, that is to be
done once every seven days, with the purpose being to look for hazards. Agreeing
with his Counsel’s description, Holstein stated there was a misunderstanding of
what was required by the work list. Tr. 238 and 279. In any event, in a
subsequent talk that Holstein had with Shannon about Matney’s reference to
needing an ambulance, Shannon expressed he was “worried about the guys” as it’s
the section boss’ job to get his crew outside. Tr. 239. While Matney was on his
paid leave the mine had Johnny Wriston perform that task with the work crew.
*Id. *

• *

While Holstein asserted that
all management wanted was to have one of the fire bosses conduct, i.e. ‘boss,’
the intake, Shannon Dolin’s testimony contradicted this, with Dolin stating
“[t]hey ended up not doing the fire drill.” Tr. 280. Given his remarks, it
would seem that in fact, management did want a fire drill, then backed off. Dolin
did understand that Matney had conveyed that he would not be able to do such an
escapeway drill and that it was based on his medical condition. *Id. *

In further support of the Court’s finding that indeed, initially, management did want a fire drill to occur, was this exchange: “So, at that point, what are you -- what duty do you think you have towards Mr. Matney?” Dolin responded,

Well, it kind of makes you -- it worries you, because, you know, if he's not able to do that exam -- or that walk, then once he expressed that and told us, as managers, like I said, I go to my bosses. And we had a meeting on it and we decided that is putting us in a lot of liability knowing that the man said he couldn't do it and we still sent him in there knowing that he said he couldn't walk the intake out. So they decided, as a group, that we needed to get him evaluated.

Id.

At that point, the group
decided that it needed to have Matney take a physical to see if he was capable
of doing a fire drill. Tr. 280-281. Matney was then told not to return
to work, though he would continue receiving his pay. As it turned out, Matney
never did have a physical exam before returning from his stay at home with pay
suspension. Tr. 314.

---

When Matney returned to work,
Holstein kept Wriston on the section to help Matney. Id. In the Court’s
estimation, Wriston’s role was essentially an admission on the part of Rockwell
that Matney could not do his job and still be Part 90 compliant. Holstein then
agreed with Respondent’s Counsel’s words that Matney then made the faces and
managed the workforce. Tr. 240. He also agreed that, not long after that,
Matney left the third shift. Id. Once that occurred Holstein had no more
supervisory role over Matney. Id. Holstein flatly denied that he had a
conversation with someone in which he asserted that he wouldn’t have given
Matney a ride, nor pick him up somewhere. Tr. 240-241.

It is reasonable to conclude that Matney’s Part 90 status produced some resentment with management. Matney’s journal for May 17th reflects that Chris Holstein, then the mine’s shift foreman, made a remark to others when Matney requested a ride out of the mine, allegedly stating that he [Holstein] “[s]hould have left his [Matney’s] sick old ass walk out.” Tr. 118. While Matney heard about this remark second-hand, the Court finds the claim to be credible. However, the Court does not have to resolve whether Holstein made either of the hostile remarks since, taking the testimony as a whole, it is reasonable to conclude that Rockwell management could not have been pleased with Matney. It’s clear the job wasn’t working out as management had hoped, and as it ultimately realized, as demonstrated by the Respondent’s late-arrived decision to place Matney outside.

Upon the mine’s direction that
Matney return to work in March 2023, he agreed that he was required to make the
escapeway drill. This occurred on March 6, 2023, when he walked the escapeway
with Shannon Dolin. Tr. 163. During Matney’s absence Johnny Wriston was on
Matney’s section and when Matney returned to work Wriston remained on the
section. *Id. *

• *

• *When back at work Matney’s
  tasks consisted of making the required checks, doing the fire boss run of the
  faces and to pre-shift and make any ventilation changes. Tr. 163-164. Further,
  Matney agreed that at that time Wriston had largely taken over the other duties
  on the section. These included moving belt and power and cleaning and dusting,
  though Matney qualified the latter tasks as “if [Wriston] had people
  available.”[13]
  Tr. 164.

[Matney
was dust sampled by MSHA on March 13, 2023, with MSHA’s Bill Meddings traveling
with him that day. No mine representative traveled with them that day. Tr. 165.]Later in March, (March 23rd) the mine ran PDM’s on Matney. Id. Referring
to Respondent’s Ex. B, a 19-page compilation of Dust Data Cards, page 9 of that
exhibit, reflects that the sample was over the maximum dust level, coming in at
.745. Matney agreed that the exceedance was because the mine was cutting bottom
on that date. Tr. 166. Matney discussed with Bill Hardin, from the mine’s
safety department, as to the reason for the exceedance. There was a spike in
the dust during that shift and the two tried to determine what Matney was doing
at the time that occurred. Tr. 167. Further regarding the dust sample
exceedance, Bill Hardin advised Matney as to how he should position himself
regarding curtain and ventilation control. Tr. 170.

Matney stated that upon returning to work, the mine’s first dust sample of him occurred on March 20, 2023. While the dust sample for that day did not exceed the allowable limit, Matney stated that the pump shut off three hours early that day, and therefore the result did not reflect a full-shift exposure. Tr. 96-98. As mentioned, Matney’s dust sampling for March 23, 2023, recorded at .745, did exceed the limit, a significant exceedance over the .5 limit. Tr. 99-101. It was Matney’s testimony that on March 23rd he still continued to be required to spread rock dust as move crew foreman and was required to do roof bolting and to perform his fire boss runs. Tr. 106.

---

A
square peg in a round hole

---

In the Court’s view, the larger point is that Mr. Matney was again exposed to a dust exposure above the maximum allowable level. The evidence does not show, nor does the Court believe that the mine was purposely exposing Matney to excessive dust levels in any of the instances of exceedances, but rather that the mine was not facing up to the fact that, by continuing to have Matney work as move crew foreman on the non-production shift, it was attempting to fit a square peg in a round hole. Motives aside, the mine was still not achieving the required level of protection for Matney’s status as a Part 90 miner. As discussed later, eventually, the mine realized this when it reassigned Matney to outside work. It is fair to conclude that Matney’s discrimination complaint eventually brought about the mine’s recognition of the true remedy required.

On April 4, 2023, Matney’s job
duties changed from foreman to fire boss.[14]
Summing up his new arrangement, Matney agreed that his tasks initially were to
fire boss the belts, roadways, and the return pumps, and that prior to the
mine’s corrective action on May 10th, it had removed his duty to check the
return pumps. Matney elaborated that Scott Thompson stated that he (i.e.
Matney) didn’t need to be in the return air course. That left him with the
duties of fire bossing the belts and roadways and the weekly airways. Tr. 172.

[Following
those job duties’ change, he was next tested for dust exposure on May 8, 2023.
On that date he fire bossed the belts, and roadways, while wearing a company
PDM dust pump. At the shift’s end the pump read .46 on that occasion. Tr. 109
and Ex.2. The following day, MSHA’s Bill Meddings traveled with Matney on his
shift. Matney fire bossed the roadways and belts that night. His dust inhalation
that evening exceeded the maximum exposure, the result coming in at .65. Tr.

110. Thus, for his May 9th sample, he was over the .5 standard. The mine took
     corrective action the next day. Tr. 172-173.]That exceedance resulted in
     reducing Matney’s fire bossing duties to roadways. This corrective action
     involved removing his fire boss runs on the belts and also changing the route
     of travel to fire boss the roadways. The latter involved taking a different
     travel route in order to minimize dust. Tr. 173. This corrective action is
     reflected in Respondent’s Ex. C. Id. With his fire bossing duties
     removed, Doug Lamb, a shift foreman took over that task. Following that change,
     Matney wore a dust pump on May 15, 2023, and he fire bossed the roadways during
     that shift.

May
24, 2023: A significant change occurs for Matney’s work duties

A significant change in
Matney’s duties occurred starting on May 24, 2023, as he then began greasing
the stacker belt, checking splices in the 1 belt and fueling rides outside.[15]
Tr. 120. By Matney’s account, the belt splice checking duty still exposed him
to excessive dust. He conceded however that the mine had since been watering
the roadways heavily, to reduce dust. Tr. 126. Matney had the same view
regarding greasing the stacker,[16]
stating that during that task he is hit on his head with loose coal and stuff
coming off the belt while he is greasing it. Tr. 123. The stacker task is done
once a week and performed completely outside. Fueling up rides is done entirely
outside too and the office position is on the surface. Tr. 175.

As for the task of checking a
belt for splicing, Matney was assigned to check the No. 1 belt. That belt
sticks out of the portal. Tr. 176. This task of checking the belt takes about
30 minutes at most. Per his journal, Matney agreed that being exposed to dust
while checking the splices occurred on one occasion, not other times. Id.
Matney concurred that as of May 10th, the vast majority of his work has been
either outside or the mine’s office, which is also outside. Tr. 177.

The
nature of Matney’s duties from Respondent’s perspective.

Respondent’s first witness,
Christopher Holstein, nicknamed ‘Oz,’ was the section foreman[17]
at the time Matney began working on the third shift. Tr. 220. After Holstein
was informed that Matney was a Part 90 miner, mine superintendent Shannon Dolin
met with Holstein and others[18]
in the mine office about having Matney “staying out of the dust” and that
“[a]nytime the [flinger] duster starts up, [Matney] should be in the intake.” Tr.

225. Thus, Holstein stated that anytime the dust flinger was running, Matney
     would go to the intake to be in fresh air. Id.

According to Holstein, when
Matney would advise that he “had to do this or had to do that” Shannon would
tell him “[a]bsolutely not,” and further that this issue “got to the point that
he told [Matney] if he heard of it again, he'd write him [Matney] up.” Id.
Holstein stated that he expected Matney to “[m]ake sure his faces are fire
bossed.” Tr. 226. He added that Matney had supervisory authority over anyone on
the section. Id.

Holstein informed that when he
worked as a shift foreman, in fact he did pull employees from the move crew to
work outby. Id. This was for “anything that might not have the mines
ready to run the next morning.” He agreed with Respondent’s Counsel description
of these as “bigger tasks that had to be taken care of.” Id. He
described these events as infrequent, “[t]wo, three times a month.” Tr. 227. When
such events occurred, Holstein described what he expected Matney to do: “he has
to be in the face every two hours; [i.e. fire bossing, making his runs]… have
[the] day shift ready to run. … I mean, you know, have, you know -- 'cause
usually always the bolt men was up there. Have them move the equipment and have
it set up in a new cut or, you know, whatever it has to be.” Id.

In the Court’s view, Holstein’s testimony demonstrates that the mine would have “bigger tasks” that had to be done. The effect was that Matney’s ability to do his tasks would on occasion take a back seat to those bigger tasks. Also undercutting the relaxed tone presented about Matney being unable to perform all his tasks on some nights, Holstein’s remark that Matney was to have the “day shift ready to run” put Matney in an impossible position – perform his tasks and be exposed to dust or let them slide. Rockwell was not facing up to the fact that the requirements for Matney’s Part 90 status and his move crew foreman position were in conflict.

Holstein maintained that he did not expect Matney to do the other actual tasks and he asserted that his approach with Matney was the same whether he was wearing a dust mask or not. Tr. 227-228. It was Holstein’s view that if a miner was pulled off a section, Matney still had other people, such as bolt men, or a utility man, on the section to do dusty tasks. Tr. 228. Yet, in his next remark, when asked what happened if Matney couldn’t get a task done, Holstein remarked “He didn't get it done. Multiple times I didn't get it done.”

In the Court’s view, this was
a contradiction with Holstein’s earlier remark that Matney had others on the
section who could do such tasks. In what seemed to the Court as an odd, and
impractical state of affairs for Matney’s job, Holstein agreed with his
attorney’s characterization that it was “fairly regular” that tasks that needed
to be done, couldn’t be done. Id. In fact, Holstein remarked that
situation occurred “[s]eventy-five percent of the time.” Id. Respondent’s
Counsel then received Holstein’s agreement that the mine’s ‘task list’ was
“more aspirational.” Tr. 229. To the Court, such an arrangement seemed to
constitute an odd ‘to do’ list.

Asked about the night shifts of September 25th-26th and the following night, September 26th-27th, Holstein recalled those occasions. While he confirmed that the mine needed two utility men to perform a big task, putting up a thousand feet of belt and that the task would take all night, his account differed from Matney’s. Holstein agreed that rock dusting needed to be done, but that he spoke with Matney about the rock dusting task, telling him that he had two roof bolters to do that and that Matney was not to personally do the dusting. The same situation existed the following night with Holstein taking Matney’s utility men from the section.

The Court notes that Holstein
agreed that the rock dusting had to be done and to that end he had bags
of rock dust delivered to Matney’s section and further that the belt line work
was essential or the mine would not be operational. In the Court’s view, apart
from determining whether to credit Matney’s version or Holstein’s, the problem
highlights that Matney was ill-suited as the move crew foreman, restricted as
he was due to his Black Lung disease. If the roof bolters were diverted from
rock dusting, that meant other tasks would not be completed. Roof bolting is
not optional, it too must be done for mining to continue. The ‘aspirational’
view of the tasks to be completed for those on the section can only be taken so
far. Both roof bolting and dusting had to be done.

Matters were much the same for
October 13, 2022. Holstein did not dispute that Matney’s journal referenced
that “everyone was working outby on violations, except for Matney, a Joy
(mining equipment) representative, and a greaser.” Holstein agreed that the
mine was addressing violations at that time. Tr. 232. For October 27, 2022,
Matney wrote that he moved power with three red hats. Holstein did not dispute
Matney’s journal about this either, but stated that such work was not
particularly dusty. Id. Holstein asserted that there would not have been
any rock dusting performed that night, “not if you only had three red hats.” Id.

October 31, 2022 was addressed next. Matney’s journal stated that he cleaned and dusted the section with one black hat and one red hat, but this question was of little value because Holstein did not recall that night. Despite that absence of recollection, Holstein agreed that Matney should have been able to clean and rock dust that night with one black hat and one red hat. Tr. 232.

Holstein was then asked about November
1, 2022, a date for which Matney’s journal recorded that he cleaned and rock
dusted the faces and that there were only two roof bolter operators on the
section with him. Tr. 234. Asked why the utility man was not present, Holstein
remarked that he may have had the man outby or he could’ve been absent. The
Court notes that the larger point is that he couldn’t recall. Id. However,
Holstein still maintained that Matney still had two miners bolting and he
could’ve used them “however he need[ed] them.” Tr. 235.[19]

---

It is fair to observe that Holstein agreed with the accuracy of Matney’s journal for the dates just mentioned. The other work was in fact being done, subtracting from Matney’s available help on the section. The dispute boiled down to whether, as Holstein contended, there was still sufficient help for Matney and, alternatively, whether it mattered to Holstein if tasks could not be completed. The Court finds, crediting Matney, that there was not sufficient help and that it did matter to the mine that tasks were not completed.

Shannon Ray Dolin,
the mine superintendent at Gateway, also testified. Dolin learned of Matney’s
Part 90 status in July 2022. Tr. 270. Respondent’s Ex. Tab A, letter from MSHA,
informing the mine of Matney’s exercise of the option to work in a low dust
area. As mentioned, to meet that requirement, the mine conducted engineering
samples for the purpose of determining the location on the section with the
least amount of dust, with the goal of finding out where the mine would be in
compliance. Tr. 272. The mine ran three samples, two outby and one on the
section. The sample on the section came back less dusty than the outby
sections, and that led the mine to leaving Matney on the section, as the
section foreman. Id. Matney was shown the sample results.

In line with the testimony of other witnesses for the Respondent, Dolin stated that management had discussions with Matney. As he put it “we did have several meetings with Cecil on his -- how he had to change his culture and mindset of getting things done. Dolin contended that by ‘mindset,’ he was asserting that foremen tend to think they can do tasks better, so they have a tendency to take over tasks. Tr. 273.

Dolin’s description of Matney’s duties in that role as the move crew foreman made it sound as if they were very easy to achieve: “[Matney] ha[d] to put his DTIs [dates, times and initials] up. He ha[d]to examine the section every two hours and manage the people, manage the men.” Tr. 274. By ‘managing the people,’ Dolin stated that meant “[Matney] has a list of things that's left for him to try to get done. And he just has to manage the people that he has at that time to get -- try his best to get it done.” Tr. 275.

Dolin stated that Matney “voiced
several times that “[he] just can't handle not getting it done [adding that
Matney was] used to getting everything done.” Id. Dolin’s emphasis was
that Matney “ha[d] to manage the people. And if he don't have the people and if
he don't get it done, then he just don't get it done.” Tr. 276.

To the Court, the mine’s asserted very forgiving approach to work not getting done and Dolin’s testimony that work not getting done happened regularly on every shift and further that miners were never reprimanded for not getting things done, is difficult to accept as an accurate depiction of the mine’s attitude.

Dolin agreed that people were
pulled from the move crew to work outby to deal with things “more pressing than
things on the section to get done.” However, he asserted that management
continued to tell Matney to stay out of the dust. Tr. 277. Dolin maintained
that Matney’s work was the same, whether or not he was wearing a PDM. Id.
In describing the instance when Matney was tested for dust exposure by the
mine, and Bill Hardin, the mine’s safety director, was with him, Dolin asserted
that Hardin was there “[t]o train him. Train him where to -- how to do his job
and staying out of the dust, how to manage the people.” Tr. 278. The Court also
finds this assertion as difficult to accept, given the mine’s high regard for
Matney, that he would need ‘training’ on how to keep out of the dust.

In support of the Court’s
skepticism, was Dolin’s testimony when asked about Matney’s remarks in his
journal for November 2, 2022. That entry referred to the left return at 3 head
being flooded, and Matney’s assertion that Dolin and Holstein wanted him to
clean and dust the section, plaster stoppings, clean the tail, and pull slack
on the 450-roof bolter. The journal also stated that Matney had only two roof
bolters and two red hats that night. Dolin asserted that he did not recall that
instance. Tr. 278. Despite the lack of recollection, Dolin expressed that the
work Matney described in his journal for that date was not a big task. Id.
As to whether he, Dolin, personally told Matney to do any of those tasks, again
Dolin’s memory failed him, stating he “[didn’t] recall telling Matney to do
it.” Id.

Upon Matney’s
return to work in March 2023, his job duties had changed, as the mine decided
that Johnny Wriston, who had taken over Matney’s work during his absence, would
remain on the section. Under this new arrangement, Wriston was to do the ‘dead
work,’ the term Dolin used to mean the “cleaning and dusting and ventilating,
the maintenance of the section.” Tr. 282. Matney would fire boss the section. Id.
In March MSHA sampled Matney, but Dolin said he did not know exactly the
results. Id.

In late March, Matney was
tested for dust exposure again, this time by the mine. Id. Dolin
conceded that one of those samples taken by the mine exceeded the .5 limit.[20]
Id. That resulted in the mine learning that the overage was from the
roof bolter and once again they instituted a corrective action, making sure
Matney was not downwind from the bolter and further that the bolter was shut
off before he went downwind to date the faces.[21]
Tr. 283.

The Court construes the unified responses from the Respondent’s witnesses as expressing their view that the problem with the instances of non-compliance with the dust exposure level was Matney’s fault. The Court finds otherwise – the source of the problem with exceedances was the nature of Matney’s position. In the Court’s view, it simply didn’t work – the efforts to contort Matney’s duties and locations during the shift were impractical and the realities of performing that job exposed him to the documented dust exceedances.

In questioning by the Court, Dolin repeated that he had many meetings with Matney on the issue of getting his tasks done. In sum, his testimony had two themes: that Matney had to ‘manage’ his people, implicitly meaning manage his people better. With that, and in the Court’s view, contradicting his remark was that “that's what you normally want, to get everything done” on the list, if you “don't get the list done, then you just don't get it done.” Tr. 336-337. The Court finds it hard to accept Dolin’s assertion that “we got to where we thought we was going to have to reprimand, I guess you would say, as far as writing it down and write him up to make sure he didn't do it.” Tr. 336-337. Yet, Dolin asserted that the meetings were initiated by Matney, not by the mine. Tr. 337.

Rockwell makes a major change in Matney’s work duties

Dolin was asked
about the spring of 2023. He affirmed that Matney then became an outby foreman,
also described as a fire boss. Dolin stated that the mine was not required to
move him to the new position. He thought the change occurred in April 2023. The
offer to the new position as fire boss consisted of fire bossing the belts and
roadways and some pumps but not the return pumps. Tr. 285. Matney was then
sampled in his new role but again one of the samples was non-compliant,
exceeding the .5 limit. Tr. 285-286. The mine then took corrective action by
removing Matney from fire bossing the belts. Id. Respondent’s Ex. C. The
mine determined that the belts were the source for Matney coming out of
compliance. Tr. 286. Thereafter, Matney fire bossed only the roadways. Id.
He was then sampled again and this time was below the .5 limit. Tr. 287. MSHA
was present during that new sample. The mine did not receive a citation in
connection with this event. Id.

• *

Dolin described Matney’s new March 2023 duties as follows:

Most of his duties, or all of them, are outside. He does some paperwork outside for Doug Lamb. He fills up the diesel rides when they're sitting outside. And he checks belt splices on No. 1 belt, which is outside. Or it comes outside. He can check it outside. And he greases the stacker belt once a week outside.

Tr. 289. Respondent’s Ex. K.

At that point, the
only genuine issue in terms of dust exposure, would be associated with checking
splices in the No. 1 belt. That task is performed outside. This is done to
determine if there are defects with the belt in need of repair, such as a
splice. Id. Dolin stated that task takes less than five minutes, the
time it takes for the belt to make a complete revolution. Tr. 291.

The Respondent then called Billy Hardin, a safety technician at the mine. Hardin’s testimony was in line with other witnesses for the Respondent in that in their view the burden was on Matney to avoid the dust on his section, stating, “[y]ou know, [Matney] has to assess the situation, look for dust.” Tr. 346. He stated that he was ‘training’ Matney how to stay out of the dust. Yet, while ‘training’ him, Matney exceeded the dust limit. Tr. 348. The dust sample on Matney for July 28, 2022 exceeded the .5 level.

Based on the entirety of the
evidence, the Court finds that the essential problem was the mine’s effort to
keep Matney in the section though the job really could not be done without
exposing Matney to excessive dust. Hardin’s various reasons – a belt crew
making a splice, the crew performing rock dusting, the process of moving a
belt, and Matney passing through some fly pads and curtains that had dust on
them[22]
– for Matney’s exposure to dust demonstrate the unsuitability of keeping him on
the section. Tr. 348-353, 357. While additional examples to demonstrate the
inappropriateness of having Matney continue to work on the section are not
necessary, Hardin testimony about the May 9th dust sample, which sample was
above the exposure limit, is revealing of the insolubility of having Matney
remain on the section. Though Hardin stated that the mine investigated this, he
didn’t remember what happened, nor did he know about any corrective action. Tr.

358. Hardin acknowledged that the dust sample for May 9th was above the limit.

[Douglas
Lamb, the mine’s evening shift foreman was the final witness for the
Respondent. Tr. 376. He only began working with Matney in March 2023. Id.
At that time Matney’s job was to fire boss and check belts. Tr. 377. Initially,
Matney fire bossed everything, meaning roadways, beltlines and pumps. Tr.
377-378. Later, they removed checking the pumps from Matney’s tasks. Lamb
agreed that one sample was above the limit, at .65. He added that an MSHA
inspector was with Matney on that occasion. It was his belief that the
inspector had Matney do more than he normally would, expressing “that
inspector, he wanted him to go in and do an on-shift on the belts and then they
come back out, and then they had to go back in and fire boss.” Tr. 379. This,
Lamb stated, increased Matney’s dust exposure that day. Tr. 380.]

As for the roadway fire
bossing, Lamb informed they had Matney “fire boss his way in and let it
clear up, and then he could come back down the roadways.”

[Referring
to the mine’s May quarterly samples, Lamb stated that the mine exceeded the .5
limit with an exceedance at .65. Id. The ‘corrective action’ for that
was for Matney to only fire boss the roadways. Tr. 381. This was when Wriston
came on to do those former tasks of Matney.] Thus, after that, Matney’s
duties became “do[ing] paperwork, fill[ing] up the diesel rides, a weekly
greasing of the stacker belt, and then, Lamb’s recollection was that a few
weeks later, the mine decided that Matney could be outside and check splices on
1 belt.”

The Court inquired of Matney what his job title has been since May 16, 2023, to which he replied “outby foreman.” The Court also asked Matney if it is correct that the only remaining issue with dust exposure since May 2023 now stems from splicing belts, an issue about which Matney stated that the mine had now started watering down the area. Matney essentially agreed that the dust exposure issue for him is now limited to the belts. Tr. 131-132. But, he added that there is some dust exposure when he is on the stacker belt too. Tr. 132. The stacker belt task is performed once a week and is done entirely outside. Tr. 175. The Court tried to have Matney describe the extent of his present dust exposure from those sources, and he responded that it was 20 percent of the workday. Tr. 132. To state the obverse, Matney tacitly agreed that presently his job duties do not expose him to excessive dust for 80% of his workday. Tr. 133.

The Court inquired further
about Matney’s present work environment, asking if he still had Part 90 issues
going forward with his present work duties or whether looking ahead, if his
present job duties still present Part 90 issues or if they are now resolved. Tr.

196. Matney responded that he couldn’t answer the question because he has not
     yet been sampled for dust by the company under his new tasks. Id. He
     elaborated that for checking belt splices, fueling up rides and greasing the
     stacker belt, and when the roads are dusty, without having a dust pump
     sampling, he couldn’t know if those tasks were above the .5 dust limit. Tr.
197. Yet, Matney agreed that those dust concerns constituted about 20% of his
     day, with 80% not presenting a dust exposure issue, as he is in an office or
     otherwise outside apart from the dust exposure sources he just mentioned. Id.
     The Respondent’s dust testing at the belt splice location and the greasing
     task evidence that one performing those tasks would not be exposed to dust levels
     over the maximum. As noted supra, the mine
     conducted an engineering dust sample for the belt check task and for the
     stacker belt greasing task and both came back below the .5 level. Tr. 292, and
     Respondent’s Ex. L. Neither task requires much time in Matney’s current
     position, with the stacker task involving an hour once a week and the splice
     check task taking less than five minutes, the time it takes for the belt to
     make a complete revolution.

ANALYSIS

---

Subpart B – Dust Standards, Rights of Part 90 Miners; provides:

After the
20th calendar day following receipt of notification from MSHA that a part 90
miner is employed at the mine, the operator shall continuously maintain
the average concentration of respirable dust in the mine atmosphere during each
shift to which the part 90 miner in the active workings of the mine is exposed,
as measured with an approved sampling device and expressed in terms of an
equivalent concentration, at or below: (a) 1.0 milligrams of respirable dust
per cubic meter of air (mg/m 3). (b) 0.5 mg/m 3 as of August 1, 2016.

30 C.F.R. § 90.100; 79 Fed. Reg. 24989, (2014).

There is no dispute that for the time periods in issue in this matter Cecil Matney was a Part 90 Miner, nor is there a dispute that, on more than one occasion of dust sampling, the sampling revealed exceedances of the maximum dust exposure. As discussed above, the demonstrated exceedances were on July 28, 2022, March 23, 2023, and May 9, 2023.

As noted in Mullins v
Beth-Elkhorn Coal Corp., 9 FMSHRC 891, 897 (May 1987), (“Mullins”),

[t]he Part 90 transfer option encompasses three basic rights: (1) to be assigned work in “an area of a mine” where the required Part 90 dust concentration levels are continuously maintained (30 C.F.R. §§ 90.3(a), 90.100 & 90.101); (2) in “an existing position” at the same mine on the same shift or shift rotation or, if the miner agrees in writing, in “a different coal mine, a newly-created position or a position on a different shift or shift rotation” (30 C.F.R. § 90.102(a)); and (3) at no less than the regular rate of pay earned by the miner immediately before exercise of the transfer option (30 C.F.R. § 90.103). It is the duty of operators to effectuate these rights as applicable with respect to their Part 90 miners.

Id.
at
897.

Mr. Matney had it right when, during cross-examination, he was asked about the MSHA dust standard, correctly expressing that the dust standard for a miner who is not [covered by] Part 90 is 1.50 whereas for one who is under Part 90, it is .50. And that if one is above the .50 level, the operator has “to do a corrective action and they have to remove you from that job or figure out a way to keep you in fresh air, keep you out of the dust.” Tr. 181.

And that is the central deficiency on the part of Rockwell – it failed to keep Matney out of the excessive dust. Rockwell’s noncompliance with Part 90 vis-à-vis Mr. Matney continued until May 24, 2023.

DISCRIMINATION
DECISIONS UNDER THE MINE ACT BASED ON PART 90 CLAIMS[23]

---

While
Part 90 involves particular rights, the analysis of a claim stemming from those
rights has been routinely assumed to be no different from any discrimination
case under the Mine Act. The Court believes that, at least in this instance,
the atypical violation of Mr. Matney’s right to be protected from excessive
dust does not fit the one-size-fits-all formula presented in [the Commission’s Pasula–Robinette test].

In the Part 90
discrimination case noted above of Mullins v. Beth-Elkhorn Coal Corp., 9
FMSHRC 891, 895-896 (May 1987), the Commission stated:

The
general principles governing analysis of discrimination cases under the Mine
Act are settled. In order to establish a prima facie case of discrimination
under section 105(c) of the Act, a complaining miner bears the burden of
production and proof in establishing that (1) he engaged in protected activity
and (2) 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, 2797–2800 (October 1980) rev’d on other grounds sub. nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd 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. If an 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. Pasula,
supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir.1987); Donovan v. Stafford Construction Co.,
732 F.2d 954, 958–59 (D.C.Cir.1984); Boich v. FMSHRC, 719 F.2d 194,
195–96 (6th Cir.1983) (specifically approving the Commission’s Pasula–Robinette
test).

Id.

In
this Matney v. Rockwell matter, the Court examined all the pertinent Commission
cases for Part 90. It also reviewed the lone Part 90 decision issued by the
United States Courts of Appeals. The Commission has issued 11 decisions
involving Part 90. Two of the 11 are related to the D.C. Circuit’s reversal of
the Commission decision in Sec’y of Labor ex rel. Bushnell v Cannelton
Indust., 867 F.2d 1432, (D.C. Cir.1989) (“Bushnell”) and
therefore they are not discussed.

[Bushnell]involved
Secretary’s interpretations of 30 C.F.R. § 90.103 and section 101(a) of the
Mine Act. The Commission “held that the regulations and the Mine Act protect a
miner against pay reductions only upon his transfer to a low-dust work area
after exhibiting evidence of pneumoconiosis (black lung disease), and not upon
subsequent transfers for other reasons.”

That Court noted that Section 101(a)(7) of the Mine Act, specifically provides:

Where
appropriate, the mandatory standard shall provide that where a determination is
made that a miner may suffer material impairment of health or functional
capacity by reason of exposure to the hazard covered by such mandatory
standard, that miner shall be removed from such exposure and reassigned.
Any miner transferred as a result of such exposure shall continue to receive
compensation for such work at no less than the regular rate of pay for miners
in the classification such miner held immediately prior to his transfer. In the
event of the transfer of a miner pursuant to the preceding sentence, increases
in wages of the transferred miner shall be based upon the new work
classification. Id. § 811(a)(7).

Id.
at 1433, quoting 30 U.S.C. § 811(a)(7). (emphasis added).

The
Court believes that only one of the Commission’s Part 90 decisions, Goff v. Youghiogheny & Ohio Coal Co.,
8 FMSHRC 1860, (Dec. 1986) (“Goff”), is useful to the analysis of the
matter at hand. For the sake of completeness, a brief recap of the other
Commission Part 90 decisions are footnoted here.[24]

Goff
involved a discrimination complaint in which the Commission, upon finding that
Goff’s complaint did state a cause of action, remanded the matter to the judge
to determine whether the miner was discriminatorily discharged. The judge then
found that the miner’s discharge was not made in in violation of section
105(c)(1), a determination upheld by the Commission.

Although
Goff did not shed light on the particular issue in this matter, the
underlying decision, in which the Commission determined that the miner
did state a cause of action, is of value. There, it held that:

a miner may state a cause of action under section 105(c)(1) of the Mine Act by alleging discrimination based on the miner’s being ‘the subject of medical evaluations and potential transfer’ under 30 C.F.R. Part 90 [as] [those] provisions contain mandatory health standards governing transfer of miners evidencing the development of pneumoconiosis.

7 FMSHRC 1776, 1776-1777 (Nov. 1985).

The
Court notes that the Commission, examining the updated discrimination provision
under the Mine Act, stated that it [“ granted miners
broader protection and relief for a wider range of discriminatory actions and
was intended by Congress to be interpreted expansively.” Id. at
1780-1781. (emphasis added).] Further, the Commission observed that

Based on the decisions cited
above, it seems clear that the operative Part 90 provisions apply to Mr.
Matney. Indeed, the operator has agreed that Matney is a Part 90 miner. Per the
Court of Appeals decision in Bushnell, the applicable mandatory
standards required that Matney should have been “removed from such exposure and
reassigned.” Bushnell at 1433.

The Commission’s decision in Goff
is completely in line with Bushnell, with its statement that “where
[as with Matney’s condition] it is determined as a result of a physical
examination that a miner may suffer material impairment of health or functional
capacity by reason of his exposure to a hazard covered by a standard, the
miner shall be moved from such exposure and reassigned.” Goff at
1781. (emphasis added). In applying that requirement, the Commission noted that
the Mine Act discrimination provision “granted miners broader protection and
relief for a wider range of discriminatory actions and was intended by
Congress to be interpreted expansively.”

In the
Court’s view, a strict application of the Commission’s
Pasula–Robinette test does not work well in this unusual set of facts. Yes,
per the first part of that test, Matney certainly engaged in protected
activity, but to say that the adverse action – keeping Matney in the section
foreman position despite several dust samples showing that he was exposed to
levels above the maximum allowed – was motivated by Matney’s engaging in the
protected activity, would be a stretch. While Rockwell attempted to invent a
contorted, and demonstrated to be unworkable, section foreman role for Matney,
the Court cannot conclude that its motivation was due to Matney’s protected
activity.

Instead,
Rockwell’s motivation was exposed by Rockwell itself. Shannon Dolin, Matney’s
supervisor, gave Rockwell’s motivation away, when he expressed that with
Matney’s background and experience he was more valuable to the mine in the
section position.[25]
Tr. 339. To the Court, that explains why the mine did not take the action it eventually
did, transferring Matney to the outside – he was more valuable in his move crew
foreman position.

**ROCKWELL’S
ATTEMPT TO LIMIT MATNEY’S COMPLAINT TO THE INITIAL BASIS ASSERTED. **

---

** **Though Respondent
has attempted to make much of the one-issue basis for Matney’s first filing,
his Discrimination Report, that argument fails. This is because the Commission
has long held that a miner is not limited to the initial basis stated in a
discrimination complaint.

As stated in Sec. obo
Callahan v. Hubb Corp., 20 FMSHRC 832, 837 (Aug. 1998)

Section 105(c)(2)
both authorizes the Secretary to bring discrimination complaints
under the Mine Act and governs that complaint process. According to the
language of section 105(c)(2), the Secretary's decision to proceed with a
complaint to the Commission, as well as the content of that complaint, is based
on the Secretary's investigation of the initiating complaint
to her, and not merely on the initiating complaint itself. See
also Secretary of Labor on behalf of Dixon v. Pontiki Coal Corp., 19
FMSHRC 1009, 1016-18 (June 1997) (scope of complaint Secretary
may pursue before Commission not circumscribed by matters addressed in original
complaint filed with her, but by subject matter of investigation conducted by
Secretary in response to that complaint). Section 105(c)(2) also clearly states
that the hearing held and the order subsequently issued by the Commission are
on the Secretary's complaint and proposed order for relief. The
provision in section 105(c)(2) that a complainant miner “may present additional
evidence on his own behalf” is a further indication that the
Secretary's case may be separate and independent from the
complainant's.

Id. at 837.

See also, Sec. v. Hopkins
County Coal, 38 FMSHRC 1317 (June 2016) at n.15, wherein the Commission
noted that:

if the content of a discrimination complaint filed with the Commission is based on that which is uncovered during the Secretary's investigation, then it follows that the Secretary's authority to investigate in the first instance cannot be circumscribed by the early and often uninformed statements made by a miner in his charging complaint.

Id. at n. 15.

Accordingly, Respondent’s effort to limit Matney’s action to his pay disparity issue fails.

COMPLAINANT MATNEY’S CLAIM THAT HE WAS
GIVEN A LESSER RAISE BECAUSE HE WAS A PART 90 MINER

---

Matney’s “Discrimination Report,” dated September 13, 2022, addressed one issue only: his assertion that he received a smaller raise than others in the same position because he had declared Part 90 status on June 25, 2022. Complainant’s Ex. 3, designated as PINE CD 2022-04. It is undisputed that section foremen received a $5,000 raise and outby foremen received $4,000.

The problem arose in the context of what may be described as a conflict or confusion over the raise due Matney.

The testimony is undisputed that Mr. Matney did not receive the appropriate pay raise he was due for his position. Matney was a section foreman, but his raise was the amount for an outby foreman. Tr. 67-68. Thus, he did not receive the same pay amount as the rest of the foremen in his classification.

The Respondent called Michael
Gosnell, the general manager of the Rockwell complex on the subject of these
raises. Tr. 212. The raises went into effect on August 1st. Id. The
raises were not equal. For example, the pay for a section foreman was more than
an outby foreman.[26]
Tr. 213. Gosnell believed that Matney came to the mine as an outby foreman;
however the computer showed him as a section foreman. Tr. 214. Later, after
Matney told Varney that he did not receive the correct raise, Varney told
Gosnell about the problem and Gosnell stated that the pay would need to
corrected, if Matney was in fact employed in the role of section foreman. Tr.
215.

Aaron Kent Varney, the
regional HR manager for Rockwell, testified about the pay issues in this
matter. Varney had Matney listed as an outby foreman, which is the role Matney
was listed as having on the mine’s staffing sheet when Matney began working at
Gateway. Tr. 251. No one advised Varney otherwise about Matney’s position
description. Id. The amount of the raise, which was the initial basis
for Matney’s complaint in this matter, was to be effective as of August 1,
2022. Id. Varney affirmed that the employees’ raises varied; however
every section foreman or outby foreman got the same dollar amount of a raise. Tr.

252. Matney’s raise was at the outby foreman rate, at 2.4%. Subsequently,
     Matney came to Varney’s office about the raise issue, and it was then that he
     informed Varney that he was a section foreman. Varney advised that his list
     showed him as an outby foreman. Tr. 254. Varney said it wasn’t until that
     conversation with Matney that he learned he was a Part 90 miner. Subsequent to
     that conversation, Dolin confirmed that Matney was indeed a move
     foreman/section foreman. Id.

The error was corrected promptly. Tr. 256. In less than a month, Matney’s received the full raise he was due. Tr. 141. Though Matney believed that his insufficient raise stemmed from his new status as a Part 90 miner, he had no evidence to support that view, other than it made sense to him, as every other foreman got the full raise. Tr. 142.

However, based on the credible testimony of Varney and Gosnell on this issue, it is clear to the Court that not only was the error quickly corrected but also that it was brought about by a misunderstanding of Matney’s true position. The Court finds that the error was accidental, without malice, and not brought about by any animus over Matney’s Part 90 miner status.

**COMPLAINANT
MATNEY’S CLAIM THAT THE MINE DEPRIVED HIM OF INCOME FROM HIS WEEKEND WORK. **

---

** Part of Matney’s
damages arise from his claim of the “every other weekend” pay he would often
receive. Tr. 86. **More particularly, Matney asserts that during the time
he was on paid leave absence, from November 15, 2022, through March 3, 2023, he
would often work on Saturdays every other weekend, and was paid $400.00 for
each such weekend work. Pay stubs support that Matney was indeed paid for extra
shifts. See, for example, Ex. 7, November 2022, at stamped page 87.

---

In his attempt to show that he lost such income during his paid absence, Matney relied upon a letter from Kent Varney, the human resources manager at Rockwell. That letter included the statement “[a]s of today, 9/14/2022, year-to-date pay, out of the above bonuses are retention bonus 5,700 [and the remark that] Mr. Matney is required to work weekends, which are scheduled for every other weekend, but it does depend, and the pay is $400 per shift.” Tr. 77-78.

However, to be fair, and for
the purpose of limiting the apparent concession that Matney was paid for
Saturday work every other weekend, the letter was created essentially as a
favor because Matney was applying for a home loan. Varney was directed to Tab
4 from Complainant’s exhibit notebook. That exhibit reflects Matney’s request
for Varney to issue the letter reflected in that exhibit. Matney was purchasing
a house and the bank wanted specific information in connection with the loan
application. Dated 9/14/2022, the letter, which was for the bank, reflected
Matney’s salary at that time. Tr. 258. The last paragraph of that letter for
the bank states “Mr. Matney is required to work weekends which are scheduled
for every other weekend, but it does depend, and the pay is $400 per shift.”
Tr. 259. This amount referred to “extra shifts” and Varney stated that the mine
tries to project two Saturdays every month, but he added that, in fact,
sometimes it’s more, sometimes less. Id. Thus, he maintained that the
shifts are not guaranteed, though they usually do happen. Id.

Matney confirmed that he did
work every other weekend. This was in connection with his role as a certified
EMT. On such weekends when he worked, the mine called it an extra shift and he
would be paid $400 for that work. Thus, he worked two of the Saturday shifts
each month in that capacity, unless the mine was idle. Tr. 78-79. This practice
began when he started working for Gateway Eagle. Id. Matney acknowledged
that there were times he would have a Saturday off. Such days off would be
especially true in November and December as well as during January through
March. Tr. 160-161.

As Matney expressed it, though
paid his full salary during the four months he was told to stay home,[27] he did not
believe that he had been made whole because he “did not get [his] extra shift
paid that [he] would have received if [he’d] normally been at work working,
…[he contended this amount would be] somewheres between $2400 and $3200.” Tr.
127.

While Matney undoubtedly would have worked some, indeterminate number, of those every other weekend times, earning the extra income from that, Counsel for Matney failed to identify the particular weekends when such work, as Matney often performed, was performed by someone else during November 2022 through March 2023. At the hearing the Court directed Counsel for Matney to calculate the sums asserted to be due during this time period. Tr. 130. This did not occur. The Court would also point out that Mr. Matney was a salaried employee and that he received his full compensation during his stay-at-home period. Tr. 377.

Accordingly, because Matney was paid his full salary while on paid leave of absence and because the Saturday work was ‘extra’ work and not guaranteed to occur every other weekend, by not establishing the specific work that was done by someone else and the specific Saturdays such work occurred, he failed to meet his burden of proof.

ROCKWELL’S **ATTEMPT
TO LIMIT MATNEY’S COMPLAINT TO THE INITIAL BASIS ASSERTED. **

---

** **Though Respondent
has attempted to make much of the one-issue basis for Matney’s first
submission, his Discrimination Report, that argument fails. This is because the
Commission has long held that a miner is not limited to the initial basis
stated in a discrimination complaint.

As
stated in Sec. obo Callahan v. Hubb Corp., 20 FMSHRC 832, (Aug. 1998)

Section 105(c)(2)
both authorizes the Secretary to bring discrimination complaints
under the Mine Act and governs that complaint process. According to the
language of section 105(c)(2), the Secretary's decision to proceed with a
complaint to the Commission, as well as the content of that complaint, is based
on the Secretary's investigation of the initiating complaint
to her, and not merely on the initiating complaint itself. See
also Secretary of Labor on behalf of Dixon v. Pontiki Coal Corp., 19
FMSHRC 1009, 1016-18 (June 1997) (scope of complaint Secretary
may pursue before Commission not circumscribed by matters addressed in original
complaint filed with her, but by subject matter of investigation conducted by
Secretary in response to that complaint). Section 105(c)(2) also clearly states
that the hearing held and the order subsequently issued by the Commission are
on the Secretary's complaint and proposed order for relief. The
provision in section 105(c)(2) that a complainant miner “may present additional
evidence on his own behalf” is a further indication that the
Secretary's case may be separate and independent from the
complainant's.

Id. at 837

The Court also takes note of Sec.
v. Hopkins County Coal, 38 FMSHRC 1317 (June 2016) wherein the Commission
noted that:

if the content of a discrimination complaint filed with the Commission is based on that which is uncovered during the Secretary's investigation, then it follows that the Secretary's authority to investigate in the first instance cannot be circumscribed by the early and often uninformed statements made by a miner in his charging complaint.

Id. at n.15

Accordingly, the Respondent’s attempt to limit Matney’s Complaint to the initial basis asserted is rejected.

---

Conclusions

---

** Based on the
foregoing, and the Court’s assessment of the credible testimony, the Court
finds that Rockwell exposed Complainant Cecil Matney to excessive dust by
keeping him in the position of move crew foreman. This violated Part 90. Instead
of complying with the Part 90 exposure requirements, Rockwell attempted to
contort Matney’s position putting him in an impossible position – as a
practical matter Matney could not perform his job without being exposed to
excessive dust and Rockwell had to know this. Its recalcitrance in properly
placing Matney in a Part 90 compliant position was admitted by Respondent’s own
witness who admitted that Matney’s value to the mine was best served by keeping
him as the move crew foreman. As noted above, as of May 24, 2023**, Rockwell
finally came into compliance with Part 90 by placing Cecil Matney Jr. in a
position which stopped exposing him to excessive dust.

For the many reasons discussed above in support of the Court’s findings, and in accordance with Commission Rule 44(b), 29 C.F.R. § 2700.44(b), the Court is notifying the Secretary of this decision, sustaining the discrimination complaint brought by miner Cecil Matney pursuant to section 105(c)(3) of the Act, so that the Secretary may file a petition for assessment of a civil penalty with the Commission.

As discussed above, the Court concludes that Complainant Cecil Matney’s temporary inadequate raise was a clerical error, unrelated to his Part 90 status. Apart from the brief error relating to the raise due Matney, all aspects of his salary and benefits were paid in full.

Further, for a failure of proof, Matney did not establish that he was entitled to the indefinitely identified Saturday work, which potential work was unrelated to his salary.

---

/s/ William B.
Moran

William B. Moran

Administrative Law Judge

Distribution:

Samuel
B. Petsonk, Esq., Petsonk PLLC, 417 East Main Street, Oak Hill, WV 25901 ([email protected])

Jonathan
R. Ellis, Esq., STEPTOE & JOHNSON PLLC, 707 Virginia Street, East, P.O. Box
1588, Charleston, WV 25326 ([email protected])

Robert
S. Wilson, Esq., Office of the Solicitor, Mine Safety and Health Division, 201
12th Street South, Arlington, VA 22202-5450 [email protected]

[1] In its initial
form Matney’s Complaint expressed “On June 25, 2022, I elected to exercise my
Part 90 transfer rights. I was classified as a foreman both before and after
exercising my Part 90 rights. My employer customarily provides periodic
across-the-board raises to all salaried employees. All foremen have always
received the same raise in my experience there. On the week of August 4, 2022,
all outby and section foreman received a raise of $4,000. However, my raise was
only $2,000.00. The raises became effective on the next payday. On that payday,
it would reflect one week of the new raise and one week of the old salary rate.
Human Resources (Kent Varney) confirmed that all section foreman did receive
the same raise. I am currently a move crew foreman, which has always been
treated the same as a section foreman for purposes of raises. As a Part 90
miner, I seek an order affording me the same raise that all other similarly
situated foremen received.” As explained infra, the Court rejected the
Respondent’s claim that Matney’s Complaint is limited to his initial statement.

[2] The term
‘section’ refers to the ‘working face.’ Tr. 244.

[3] Matney described
his work as fire boss as follows: “A fire boss, in accordance [with] the State
of West Virginia, [requires one] to walk across your faces every two hours. That
means your headings. You have to check for methane. You have to check for
airflow and any hazards that you find in that face, whether a ventilation
curtain be tore down, you have to replace it and fix it.” Tr. 38. At that time
the mine had nine entries. His fire boss duties encompassed “try[ing] to spend
at least five minutes in each entry to make sure that you're catching
everything: Loose bolts, kettle bottoms, bad ribs, et cetera. … just anything
that you can find that's a violation … [and this has to be done] every two
hours.” Tr. 39. The job is done on foot. Matney added that “three hours prior
to the day shift starting, [one has] to do what's called a pre-shift that MSHA
and the State of West Virginia requires to be done three hours prior to the
shift starting. You're going across the section, you're getting air readings in
your -- return air reading air forces to make sure you have enough air going
down your returns. You're making sure that you've got plenty of air in your
non-idle faces. And you're making sure the ventilation is correct. And you're
saying that this section of this mine is safe for the day shift to come in to
perform their duties on that shift for the day shift.” Id.

[4] To avoid any
confusion when dates are referenced about Matney’s shift, on a given night he
would start work near the end of a day, with the majority of his hours
occurring after midnight. Therefore, references to dates will often reflect two
days, but involve a single shift. For example, the reference infra to
July 28th to July 29th, pertains to a single shift.

[5] The test or
‘engineering’ dust samples were conducted in mid-July 2022, and they were
uploaded to MSHA. Tr. 326. These were done to help the mine determine the best
location for Matney to work on the section. Tr. 327. One of those samples,
which was outby, was over the exposure limit. Tr. 328. The mine did not keep
those results. Id. Though the Court found it troublesome that the mine
did not keep the results, it does not find that it was malicious. The mine
reviewed the samples and went over them with Matney. Id.

[6] Holstein would
later testify that there were times when he, Holstein, was doing his fire boss
run and be downwind of the bolt crew when doing that, but he added that he had
the right to tell his crew to shut off the bolting, and he stated that he has
done that. Tr. 242. He then stated that he would tell the bolt crew to stop if
downwind and close to them. Id. Holstein asserted that, when dusting the
section, one side becomes clear within 15 minutes of dusting it. It was his
contention that Matney could have told his crew not to bolt when he was fire
bossing, especially if his practice was to do that task the same time each
night. Tr. 246-248. Having observed Matney and Holstein closely during their
testimony, the Court concluded that Matney was the more credible witness.

[7] Though
Respondent’s Counsel attempted to have Matney endorse the idea that his journal
was gospel, reflecting the entirety of a given day and from that premise that
anything omitted from it did not occur, the Court does not agree. Tr. 143. The
journal did not purport to be a compendium of each day’s events. As Matney
stated, he created the journal to help him remember events, an understandable
and prudent practice, given his concerns about his duties post his Part 90
designation. The Court also asked Matney why he created a journal. He answered,
“[t]o protect myself as a Part 90 miner.” Tr. 199. By protect, he elaborated
his purpose was “[t]o show that, if the company is not being compliant with the
laws of a Part 90 miner, I have proof of it instead of word-of-mouth…. [he]
figure[ed] if [he] could put dates and times down on paper, it's easier than .
. . trying to remember, okay, on this date -- it's hard to remember exactly
what you did or have done on that date.” Id. He testified that the
journal was his good faith effort to record what occurred and not an attempt to
tell only his side of the events. Tr. 199-200. The Court concludes that the
journal was not an exercise of fabrication, but rather a good faith attempt to
note the events on a given day. Thus, overall, the Court finds that Matney’s
journal was credible and not a selective recounting.

[8] In a challenge to
the completeness of Matney’s journal, Matney agreed that some friction between
him and Shannon Dolin was left out from it. The friction involved Dolin asking
if Matney had rock dusted. Matney told him he had not, and according to Matney, Dolin “blowed off his handle and throwed his
little temper tantrum, grabbed his head, and said, ‘You will rock dust every night,’
and pointed his finger at my -- towards my face … And I asked him, I said, ‘Are
you giving me a direct order to dust?’ He walked off and come back and said,
‘No, but you have to dust every night.’ If I don't have somebody on the section
to dust, how am I supposed to dust every night?” Tr. 179. In the Court’s
assessment of this dispute, Matney’s omission from his journal certainly did
not help the Respondent’s perspective, as his disclosure about the incident
reflected underlying irritation between management and Matney.

[9] A ‘dust flinger’
refers to a machine that dispenses rock dust, not a person literally flinging
dust by hand. Tr. 198.

[10] It is
interesting, at least to the Court, that the origin of the familiar term
‘Hobson’s choice,’ is of 17th century origin, named after Thomas
Hobson (1554–1631), a Cambridge carrier who hired out horses, giving the
customer the ‘choice’ of the one nearest the door or none at all. Hobson’s
choice, Wikipedia, (Dec. 6,
2023), https://en.wikipedia.org/wiki/Hobson%27s_choice.

[11] Although
Respondent’s Counsel asserted that Matney in fact had only two days in October
for which he asserted working in dusty conditions, Matney never agreed with
that assertion. Tr. 156. To the Court, the claim is beside the point. The
protection to be afforded to Part 90 miners is to be free of excessive dust on
every shift. Put another way, excessive dust exposure is not waived if it only
occurs on a few days during a given month.

[12] A point of
clarification, a ‘fire boss’ is another term for ‘outby foreman.’ Tr. 263.

[13] Respondent’s
Counsel asked Matney about certain dates in March and April 2023, but the Court
considered the following aspects to be inconsequential to this matter. For
March 11th, Matney asserted that he was exposed to rock dust from the flinger
duster, but he acknowledged that he resolved the issue with Wriston and that
the problem did not arise again. Tr. 164. For March 28th and April 3rd, his
journal reflects that he operated the flinger duster, but he agreed that his
journal did not assert that he was shorthanded on the section on those dates. Id.

[14] It is noted that
MSHA issued citations associated with these dates, but they did not involve
dust exceedances. Citation No. 9592733 was issued for the mine not submitting
five valid representative dust samples. Tr. 111. Complainant’s Ex. 5. Another
citation, No. 9591268, was issued for records regarding the length of each
shift worked for the Part 90 miner [Matney] not being maintained as required.
Tr. 111-112.

[15] Matney remarked
that Respondent’s Counsel’s description of his new work duties left out his
work on Saturdays, such as on May 20th, when he did the roadways’ on-shift, and
the belts and fire run belts. Tr. 174. They ran coal on that day, Matney
stated. Id.

[16] As its name
implies, the stacker moves fresh or raw crushed coal into a pile. Tr. 122. As
Matney described it, the stacker “hauls the coal -- it dumps the coal out into
the stockpile in the yard where they load coal trucks.” Id. When
greasing it, Matney is beside the stacker belt all the way up to the top. Id.
During that task he is hit on his head with loose coal and stuff coming off the
belt while he is greasing it. Tr. 123. Though he complained about the dust
exposure from those tasks, Matney stated that neither Doug Lamb nor Shannon
Dolin did anything about it. Id. However, he conceded that the next time
a splicing was required, the day shift did it and he has not had to do a splice
since his complaint. Id.

[17] The term ‘section
foreman’ is used interchangeably as ‘move foreman.’ Tr. 254.

[18] The ‘others’ were
not identified by Mr. Holstein.

[19] Continuing with
his testimony that was not particularly helpful to the Respondent’s case,
Holstein was next asked about November 2, 2022, for which Matney’s journal
recorded, as described by Respondent’s Counsel, that the “left return at the
No. 3 head flooded and that you [Holstein] and Shannon wanted him to clean and
dust the section, plaster stoppings, clean the tail, pull slack on the 450 roof
bolter [and that Matney] claim[ed] that he had two roof bolter operators and
two red hats.” Tr. 235. However, Holstein stated that he didn’t recall that
there was flooding at the No. 3 that particular
night, yet he added “But I mean, sure.” Id. Despite that lack of
recollection, he denied telling Matney to do any of those tasks. Id. Holstein
asserted that the tasks would just be listed on the work clipboard. Tr.
235-236. As for whom Matney had working for him that night, Holstein stated
that Matney said he had two bolt men on the section. As to whether a utility
man had been pulled to work outby that night, Holstein also could not recall. Tr.
236.

[20] Dolin stated that
the mine did not receive any dust sample compliance violation for March 2023,
informing that there have to be two or more exceedances. Tr. 283-284.

[21] The record is
unclear whether the Respondent actually meant 2023. The transcript reflects
2022, but as Respondent’s Counsel remarked, “Was there another time -- and I
think we might be confused as to dates now. I apologize. I just want to refresh
your recollection as to referring to a roof bolter corrective action. Was there
a corrective action in July of 2022? Tr. 283. Dolin responded “[t]here was one
on adjusting curtains.” Id. Asked if that was in March 2022, Dolin
answered it could have been and that he and Scott Thompson undertook the
corrective action. Id. 2023 makes sense as the correct year.

[22] The last example,
simply passing through some fly pads and curtains, exemplifies the error of
having Matney continue to work in the section and the ‘corrective action’
serves to underscore the error with Hardin advising Matney to “watch where you
position yourself walking through curtains.” Tr. 357.

[23] The Court read
and considered the parties’ post-hearing briefs and all contentions raised
within them. Either directly or implicitly in this decision, such contentions
were addressed, including for example, Respondent’s assertions regarding the
elements of an interference claim. R’s Br. at 20-21.

[24] Mullins
v Beth-Elkhorn Coal, 9 FMSHRC 891 (May 1987).

The Commission’s own introduction for this decision shows that it is of no value to the issues in this matter:

This proceeding involves a discrimination complaint filed by Jimmy R. Mullins pursuant to the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 801 et seq. (1982) (“Mine Act”). The complaint alleges that Mullins’ removal from a dispatcher’s job pursuant to an arbitration award resolving a seniority grievance violated section 105(c)(1) of the Mine Act by contravening his rights under 30 C.F.R. Part 90 (“Part 90”).1 Former Commission Administrative Law Judge Richard C. Steffey *892 found that the removal of Mullins from the dispatcher’s job constituted unlawful discrimination, ordered that Mullins be reinstated to that position, and awarded back pay, expenses, and attorney’s fees. 7 FMSHRC 1819 (November 1985) (ALJ). … Because we conclude that miners’ Part 90 rights do not entitle miners to particular transfer positions, we reverse.

Id.

Perando v. Mettiki Coal Corporation,
10 FMSHRC 491 (April 1988).

This decision is
similarly not instructive. There, the miner’s work refusal “would not have been
protected under the Mine Act. Such an action by Perando would have to be
interpreted as a refusal by a miner (not suffering from pneumoconiosis) to
report to work unless and until assigned to a dust-free area. Such a right is
not granted by the Mine Act. Section 101(a)(7) of the Act, 30 U.S.C. §
811(a)(7), authorizes the Secretary to develop improved mandatory health or
safety standards providing that miners whose health has been impaired by
exposure to a designated hazard “shall be removed from such exposure and
reassigned” and that such transfer shall be without loss of pay. To date, the
Secretary has implemented this statutory mandate by providing under 30 C.F.R.
Part 90 that a miner who has been determined by the Secretary of Health and
Human Services to have evidence of the development of pneumoconiosis shall be
afforded the option to transfer without loss of pay to a mine area where the
average concentration of respirable dust is at or below 1.0 mg/m3. 30 C.F.R. §§
90.3, 90.100, & 90.103; See generally Jimmy R. Mullins v. Beth–Elkhorn
Coal Corp., et al., 9 FMSHRC 891, 896–98 (May 1987). As the Secretary
emphasizes in her amicus brief on review, the Department of Labor has not
promulgated any similar transfer-pay retention standards applicable to miners
with industrial bronchitis, the illness suffered by Perando. Also, even a miner
who falls within the protections of Part 90 does not have the right to refuse
to work pending transfer to a job in a mine atmosphere totally free of
respirable dust. Gary Goff v. Youghiogheny & Ohio Coal Co., 8 FMSHRC
1860, 1865 (Dec. 1986). Exposure to some amount of respirable dust is inherent
in virtually all underground coal mining. Thus, even if the Secretary had
included miners suffering from industrial bronchitis within the scheme of the
present Part 90 transfer-pay retention regulations, Perando would not have had
a right under those provisions to transfer with pay retention to a less dusty
position since her underground work areas at Mettiki were consistently below
the required Part 90 respirable dust level of 1.0 mg/m 3. M. Exh. R–2, Tr.
74–77, 100–102 (May 1, 1986). To accord Perando the right asserted in this case
would confer upon her greater transfer-pay retention protection than that
enjoyed by Part 90 miners, an anomalous result. Id. at 495-496.

Canterbury
Coal Co., 20 FMSHRC 718 (July 1998)., involving a citation
issued by MSHA charging Canterbury with violating 30 C.F.R. § 90.102(a)1 “when
it transferred a Part 90 miner without his written consent, to a position on a
different shift rotation in a low dust area of the mine,” similarly is not
useful to this matter. The Commission upheld the administrative law judge’s
determination that the operator violated the provision by so acting. Id.
at 723.

Rochester
& Pittsburgh Coal Corp., 12 FMSHRC 189 (Feb.
1990), is also inapplicable. There the Commission upheld the administrative law
judge’s determination that R&P failed “to compensate a Part 90 miner at not
less than the regular rate of pay received by that miner immediately before his
exercise of the Part 90 option.” Id. at 193.

[25] Dolin’s candid
remark came with his acknowledging that Matney had asked about whether he could
take the dispatcher job. Dolin admitted “we talked about it. But, you know,
with Cecil's knowledge and his ability and certified, you know, we tried to
utilize him better for the mines and make sure that he was in a safe location.”
Tr. 339.

[26] As noted earlier,
the terms ‘outby foreman’ and ‘fire boss’ are used interchangeably. Tr. 263.

[27] Matney agreed
that during his leave of absence he was paid everything due him; his regular pay, and all bonuses. Tr. 163. Matney
is not an hourly employee. Tr. 314.