<DOC>
[DOCID: f:va94-64.wais]
MICHAEL GRIFFITH, II, Employed by TEAL MINING, INCORPORATED
June 7, 1995
Docket No. VA 94-64
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 7, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-64
Petitioner : A.C. No. 44-06483-03536 A
v. :
: Mine No. 1
MICHAEL GRIFFITH, II, Employed :
by TEAL MINING, INCORPORATED, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-65
Petitioner : A.C. No. 44-06483-03538 A
v. :
: Mine No. 1
MICHAEL GRIFFITH, Employed by :
by TEAL MINING, INCORPORATED, :
Respondent :
DECISION
Appearances: Edward H. Fitch, Esq., Office of the Solicitor,
Arlington, Virginia, on behalf of the Secretary
of Labor;
Michael Griffith and Michael Griffith, II,
Jewell Ridge, Virginia, pro se.
Before: Judge Melick
These cases are before me upon petitions for civil penalty
filed by the Secretary of Labor pursuant to Section 110(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq., the "Act" charging Michael Griffith and his son, Michael
Griffith, II as agents of corporate mine operator Teal Mining,
Incorporated (Teal Mining) with knowingly authorizing, ordering
or carrying out three admitted violations of mandatory standards
and seeking civil penalties of $2,200 and $2,800 respectively.
The general issues before me are whether Michael Griffith and/or
Michael Griffith, II were agents of the corporate mine operator
as alleged and, if so, whether they knowingly authorized, ordered
or carried out the admitted violations. If the above issues are
resolved in the affirmative, then it will be necessary to
determine appropriate civil penalties to be assessed considering
the relevant criteria under Section 110(i) of the Act.
As a preliminary matter it should be noted that seven exhibits
(Government Exhibit Nos. 11 - 17) offered by the Secretary and
admitted at hearing under Commission Rule 63, 29 C.F.R. �
2700.63, are given no weight in this decision. The exhibits
consist of summaries of witness interviews prepared from the
notes of an investigator for the Mine Safety and Health
Administration (MSHA). The subjects of these interviews were
neither subpoenaed nor called to testify at hearings on the
charges against these pro se Respondents nor does it appear that
Respondents had any notice before hearing that the Secretary
would be offering these interview summaries as evidence. The
Respondents are also each charged with three quasi-criminal
violations under Section 110(c) of the Act[1] subjecting them to
$150,000 in penalties each under Section 110(a) of the Act.
Under the circumstances they are entitled to a federal
constitutional right of confrontation. Maryland v. Craig, 497
U.S. 836 (1990); Greene v. McElroy, 360 U.S. 474 (1959); Goldberg
v. Kelly, 397 U.S. 254 (1970). See also David B. Sweet,
Annotation, Federal Constitutional Right to Confront Witnesses -
Supreme Court Cases, 98 L. Ed. 2d 1115.
The inability of the Respondents to confront and cross examine
these critical witnesses at hearing and thereby test their
recollection and the accuracy of their purported statements and
to compel them to stand before this tribunal to test their
demeanor would constitute a denial of due process.
As the Supreme Court stated in Greene v. McElroy:
"Certain principles have remained relatively immutable in our
jurisprudence. One of these is that where governmental action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he
has an opportunity to show that it is untrue. While this is
important in the case of documentary evidence, it is even more
important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might
be perjurers or persons motivated by malice, vindictiveness,
intolerance, prejudice, or jealousy. We have formalized these
protections in the requirements of confrontation and
cross-examination. They have ancient roots. They find
expression in the Sixth Amendment which provides that in all
criminal cases the accused shall enjoy the right "to be
confronted with the witnesses against him." This Court has been
zealous to protect these rights from erosion. It has spoken out
not only in criminal cases, e.g., Mattox v. United States, 156 US
237, 242-244, 39 L ed 409-411, 15 S Ct 337; Kirby v. United
States, 174 US 47, 43 L ed 890, 19 S Ct 574; Motes v. United
States, 178 US 458, 474, 44 L ed 1150, 1156, 20 S Ct 993; Re
Oliver, 333 US 257, 273, 92 L ed 682, 694, 68 S Ct 499, but also
in all types of cases where administrative and regulatory actions
were under scrutiny. E.g., Southern R. Co. v. Virginia, 290 US
190, 78 L ed 260, 54 S Ct 148; Ohio Bell Tel. Co. v. Public
Utilities Com. 301 US 292, 81 L ed 1093, 57 S Ct 724; Morgan v.
United States, 304 US 1, 19, 82 L ed 1129, 1133, 58 S Ct 773,
999; Carter v. Kubler, 320 US 243, 88 L ed 26, 64 S Ct 1; Reilly
v. Pinkus, 338 US 269, 94 L ed 63, 70 S Ct 110. Nor, as it has
been pointed out, has Congress ignored these fundamental
requirements in enacting regulatory legislation. Joint
Anti-Fascist Refugee Committee v. McGrath, 341 US 123, 168, 169,
95 L ed 817, 852, 71 S Ct 624 (concurring opinion).
Professor Wigmore, commenting on the importance of
cross-examination, states in his treatise, 5 Wigmore on Evidence
(3d ed. 1940) � 1367:
"For two centuries past, the policy of the Anglo-American
system of Evidence has been to regard the necessity of
testing by cross-examination as a vital feature of law. The
belief that no safeguard for testing the value of human
statements is comparable to that furnished by cross-
examination, and the conviction that no statement (unless by
special exception) should be used as testimony until it has
been probed and sublimated by that test, has found
increasing strength in lengthening experience."
The limited exception to the right to confrontation provided
under certain circumstances for the admission of written reports
by an examining physician in certain administrative proceedings
set forth in Richardson v. Perales, 402 U.S. 389, (1971), is, of
course, not applicable to these cases. Under the circumstances
and within the above framework of law, it would be
constitutionally impermissible to give any weight to the seven
interview summaries at issue.
Even assuming, arguendo, there is no constitutional infirmity
in giving weight to these exhibits, they are, in any event,
untrustworthy and entitled to no weight. These interview
summaries were not taken under oath, were not signed nor
apparently reviewed by the purported authors, and, indeed, are
not even verbatim statements but only summaries of interviews
based upon the investigator's notes. It appears, moreover, that
language attributed to witnesses may have actually been authored
by the special investigator himself -- for example, the reference
to "the controversial conversations" attributed to Richard
Roberts (Government Exhibit No. 14, page 2). The investigator
also acknowledged that on at least four occasions in the
statement of one witness he failed to accurately attribute
statements to their true author, i.e. statements purportedly of
Michael Griffith, II, attributed to Michael Griffith, Sr.
(Government Exhibit No. 10, page 2). In addition, the
investigator acknowledged that, while apparently relying upon the
statement of Howard Cordle in reaching investigative conclusions,
he did not find the statement to be "100 percent truthful".
Accordingly, the inaccuracy and lack of credibility of these
exhibits undermines their potential probative value. They would,
therefore, in any event, be entitled to no weight.
As previously noted, the underlying violations charged in these
cases and incorporated in Citation No. 4002030, and Orders Nos.
4002031 and 3799489 are not disputed. Citation No. 4002030
alleges a February 9, 1993, violation of the approved mine
ventilation plan under the mandatory standard at 30 C.F.R. �
75.370(a)(1) and charges as follows:
The main return from the surface to the 2nd right mains was not
maintained to ensure safe passage at all times of persons, in
that water was allowed to accumulate 18 inches to 32 inches in
depths, at approximately five (5) locations. The mining height
is approximately 40 inches. Foreman Howard Cordle stated that he
knew of the conditions, water accumulations was observed and
citations issued during the last inspection. The approved
ventilation, methane and dust control plan requires that return
entries be maintained free of water to ensure safe passage.
In relevant part the applicable ventilation plan provides as
follows:
Water which will inhibit safe travel or bleeder function shall
not be permitted to accumulate in bleeders. It shall be pumped
or drained. (See Government Exhibit No. 6).
Order No. 4002031 alleges a violation of the same provisions of
the mine ventilation plan on February 9, 1993, but charges as
follows:
The ventilation, methane and dust control plan was not being
complied with. The bleeder entries provided for the 3rd left
panel (pillar out area) off of the mains were not adequately
maintained and free of water to permit safe travel. Water was
allowed to accumulate from 15 inches to 40 inches in depth,
beginning 60 feet inby survey station number 553 and extended
[sic] inby for an unknown distance. The results of the weekly
examinations conducted by Edward Cordle, Foreman, on 02-07-93
stated he could not traveled [sic] all of the bleeder because of
water.
Order No. 37949489 alleges a June 3, 1993, violation of the
mine operator's roof control plan under the mandatory standard at
30 C.F.R. � 75.220 and charges as follows:
The approved roof control plan was not being complied with in
that the No. 6 entry (left conveyor entry) 001 Section is 21 to
22 feet wide for a distance of approximately 150 feet. Starting
70 feet inby survey station No. 1351 and extending inby to the
face. Also the last row of roof bolts in the face is 6 to 8 feet
outby the face. The approved roof control plan sketch shows the
entry not to exceed 20 feet in width and roof bolts installed
within 4 feet of the face.
It is undisputed that the operator's roof control plan limits
entries, including the belt conveyer entry at issue herein, to a
width of 20 feet (Government Exhibit No. 18).
There is no dispute that as of March 18, 1993, Michael Griffith
(senior) became a corporate officer of Teal Mining, namely
Secretary/Treasurer and remained in that capacity at the time of
the June 3, 1993, violation charged in Order No. 3799489.
(Government Exhibit No. 19). He was, therefore, in a category of
agent specifically set forth in Section 110(c) of the Act as of
the date of the June 3, 1993, violation. The Secretary maintains
that Griffith (senior) was also an agent of Teal Mining when the
two violations were committed on February 9, 1993, based upon the
observations of the issuing inspector (Inspector Roger Vance) and
upon the interview summaries (Government Exhibit Nos. 11-17)
which I have found to be entitled to no weight.[2]
The term "agent" is defined in section 3(e) of the Act as "any
person charged with responsibility for the operation of all or a
part of a coal or other mine or the supervision of the miners in
a coal or other mine." In attempting to show the agency status
of Michael Griffith (senior) the Secretary argues, but without
explanation or record support, that the "relationship that
existed between him and his son clearly implied an agency in
fact." In addition, the Secretary maintains that Griffith's
presence at the mine was "consistent throughout the time that the
mine was opened." The secretary again fails, however, to cite
any credible record evidence to support this conclusion or show
how that evidence in any event supports a finding of "agency".
Indeed, aside from his own admissions that he was around the mine
beginning in October 1992 and in January, the only credible
evidence that Griffith (senior) was present on any particular
date came through the testimony of MSHA Inspector Roger Vance.
Vance testified that, at the time of his inspection on October
21, 1992, he saw Griffith (senior) at the mine but at that time
he was performing only work as a mechanic. The only other time
Vance had observed Griffith (senior) at the mine was during the
February 9 inspection when Griffith, who was then apparently
incapacitated by injuries, was present but apparently not
performing any work. While this evidence does indicate that
Griffith (senior) was present at the mine on occasion this
presence, standing alone without any evidence that he was then
"charged with any responsibility for the operation of all or a
part" of the mine or with the "supervision of the miners" is
hardly sufficient to establish his agency under the Act at the
time of the February 9, 1993, violations.
Griffith's lack of involvement in a responsible capacity is
further supported by his own testimony that he had nothing to do
with his son's mine until around October (presumably 1992) when
he volunteered to help as a mechanic/electrician to keep the
equipment operating. Michael Griffith, II corroborated his
father's lack of authority at the mine characterizing his initial
participation as that of an advisor. Griffith, II hired
certified mine foremen, Coleman, Cordle and later Dye to run the
mine since he personally had no knowledge of the mining business.
He maintains that his father was never an employee and was not
paid for any work at the mine.
The Secretary next argues, but without specifying any relevant
time period, that Griffith (senior) was "clearly viewed as an
owner of the mine by many of the miners as well as by an
inspector". The basis for the Secretary's conclusion in this
regard appears, however, to be the interview summaries which I
have found to be entitled to no weight, and the testimony of
Griffith himself that, at some point in time Randy Dye, one of
the other foremen, may have thought of him as a supervisor (Tr.
279-280). This somewhat ambiguous testimony is hardly
sufficient, however, to establish the status of Griffith (senior)
as an "agent" as of the February 9, 1993, violations.
Finally the Secretary maintains that Griffith (senior) was an
agent because he and his son "never sought to tell the miners
that the father was not an owner of the mine." Under this novel
argument the Secretary is impermissibly attempting to shift his
burden of proof to the Respondent himself to prove he was not an
agent. Carried to its logical conclusion, the Secretary would
argue that the failure of Respondents to have declared to miners
that they were not "agents" makes them agents by default. Under
all the circumstances I find that the Secretary has failed to
sustain his burden of proving that Mr. Griffith (senior) was an
"agent" of the corporate operator on February 9, 1993.
Accordingly, the charges against him for activities as an "agent"
on that date as set forth in Citation No. 4002030 and Order No.
4002031 must be vacated.
With respect to the violations, charged against Michael Griffith,
II in Citation No. 4002030 and Order No. 4002031, the Secretary
argues that he "knowingly" acted or committed the violations
based on his testimony that he knew the water was being pumped
out of the mine.[3] In this regard the Secretary relies on the
following colloquy at hearing:
"Q. [by attorney Fitch] Well, why didn't you have the returns
clear of water?
A. Well, I didn't know they wasn't clear of water, to be honest.
I knew there was water in there, but every time --- there's water
coming outside, I'd call inside and tell them that there wasn't
water coming out, to work on the pump, make sure it's pumping
water." (Tr. 255)
I do not agree that the above testimony supports a finding that
Griffith, II knowingly acted or violated the ventilation plan.
To the contrary, the testimony shows that Griffith was aware that
water was continually being pumped outside and, indeed, that they
were making continuing efforts in an attempt to comply with the
ventilation plan. Moreover, the cited provision of the
ventilation plan may reasonably be construed as requiring only
that "water which will inhibit safe travel or bleeder function .
. . shall be pumped or drained."
In these cases the Secretary does not dispute that mine
production had already been discontinued and that the water was
being pumped out of the mine, but argues only that, in his
opinion, the pumps being used were inadequate to pump the water
fast enough. This determination is clearly a judgment call
about which reasonable persons may disagree and is not the sort
of judgment sufficient to warrant a "knowing" violation under
Section 110(c). When this evidence is considered in conjunction
with Respondent's clear lack of knowledge and experience in the
industry and the reliance he placed upon the certified mine
foremen he hired, I find the Secretary has not sustained his
burden of proving the charges herein. Under the circumstances,
both charges against Michael Griffith, II, set forth in Citation
No. 4002030 and Order No. 4002031 must be vacated.
With respect to the violation alleged to have occurred on
June 3, 1993, (Order No. 37949489) the Secretary, in his post-
hearing brief, cites no evidence to support a finding that the
Respondents "knowingly" acted or violated the law or that they
were even aware of the conditions cited. Inspector Paul McGraw,
testified that he discovered the violation during his June 3,
1993, inspection and found that the entry was 21 to 22 feet wide
over 150 feet in linear distance. McGraw acknowledged that he
did not have an opportunity to talk to either of the Griffiths
about this violation. According to McGraw, section foreman
Howard Cordle told him that he thought the belt entry could, in
fact, be cut 22 feet wide.
Michael Griffith, II testified that he had no mining experience
before entering into the business herein and later hired and
relied upon Howard Cordle to run the mine. Michael Griffith
(senior) confirmed that his son knew nothing about mining and,
indeed, initially warned his son to stay away from the mine since
he knew nothing about the business. Griffith (senior) testified
that at first he had nothing to do with the mine but, beginning
around October, helped by trying to keep the equipment operating.
Around March 1993, apparently after he became Secretary/Treasurer,
he began signing pay checks along with his son. After the instant
violation was issued, he asked Cordle about mining with a 22-foot-
wide entry. According to Griffith (senior), Cordle stated that he
thought it should be 22 feet wide because that was the way he cut
it at another operation.
Based upon the paucity of evidence regarding Michael Griffith,
senior's authority, participation and knowledge surrounding the
instant violation, I cannot find that he "knowingly" acted or
violated the cited requirements of the roof control plan.
Accordingly, the charges against Michael Griffith (senior) in
this regard, must be vacated.
With respect to the allegations that Michael Griffith, II
knowingly violated the roof control plan under Order No.
37949489, the Secretary has again failed to cite any evidence to
support the charges. Indeed, this appears to be for good reason
for there is, in fact, insufficient evidence to support charges
against Michael Griffith, II for knowingly acting or violating
the requirements of the corporate operator's roof control plan as
charged.
ORDER
The charges set forth herein against Michael Griffith and Michael
Griffith, II, are hereby vacated and these civil penalty
proceedings are dismissed.
Gary Melick
Administrative Law Judge
FOOTNOTES
[1] Section 110(c) provides as follows:
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).
[2] The parties were advised by notice issued April 5, 1995,
that their briefs should be based upon evidence other than
Government Exhibit Nos. 11-17).
[3] The term "knowingly" is evaluated within the framework of
the Commission decision in Secretary v. Kenny Richardson, 3
FMSHRC 8 at 16 (1981) aff'd on other grounds 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983). In that case the
Commission stated as follows:
"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."
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Michael Griffith, II, HCR 63, Box 7, Jewell Ridge, VA 24622
(Certified Mail)
Michael Griffith, HCR 63, Box 7, Jewell Ridge, VA 24622
(Certified Mail)
/jf