Petition for Writ of Certiorari — Kentucky Carbon Corp. v. Interior Board of Mine Operations Appeals

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Supreme Court of the United fates ~~ -—~

OcroBen TERM, 1974

No. 74-623)

KENTUCKY CARBON CorroraTion and BiruMinous Coan

OreratTors’ Association, Petitioners,

Vv.

Invention Boarp oF MINE OverATIONS APPEALS and

FRANKLIN PHILLIPS, Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

R. G. KELLY

CHARLES Q. GAGE

JACKSON, KELLY, HoL_T anp

O*FARRELL

1601 Kanawha Valley Building

Charleston, West Virginia 25322

Counsel for Petitioner,

Keutuchy Carbon

Corporation

Guy FARMER

Patrersox, BELKNAP, FARMER

& SHIBLEY

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Counsel for Petitioner,

Bituminous Coal Operators

Association

Press OF Byron S. ApAMS PRINTING, INC.. WASHINGTON, D. C.

- _._

INDEX

Page

CPMIONE THCIOW ona ices ca scew eer aceeneceesennees 2

Rs val We vas Shab 5s ob usb) we S08 48k 08s she 2

Cmoation Presented ooo. ccc veneer ecescsenresenees 2

Statutory Provision Involved ............ss.ceceeee 2

POINT GD COMBE can cc ccc sens ccecesenetaences 3

Reasons for Granting the Writ .................00005 8

1. This Case Involves an Important Issue of First

Impression Under the Federal Coal Mine Tlealth

and Safety Aet Which Issue Affects Thousands of

Persons in the Coal Industry as Well as Persons

ee INU hac cnuad 644 h040a sean DOS 8

9) The Construction of § 110(b)(1) CA) of the Act by

the Court of Appeals Is Inconsistent With the

Construction Given by the Administrative Agency

Charged With the Enforcement of Such Provision

i DE CUE WTS bcc ey coe ciccan cada sneces 9

3. The Cireuit Court of Appeals Has So Far De-

parted From the Accepted and Usual Course of

Judicial Proceedings as to Call for an Exercise

of This Court’s Power of Supervision .......... 15

NS EPP OLET TEES CC LETET CLT CT CLEE TER CITE 15

PIE ica ican e ides rene cenneenesnreeens la

PIE TF oie Kanes riscsracicversvsvaesevaneess ova

CITATIONS

CASES:

Gateway Coal Company ve United Mine Workers, 466

F.2d 1157 (8d Cir. 1972), rev’d, 38 T..Ed.2d 585,

hos. Bi) ney ase e ee ee eee 8,11

Hoover Design Corp. v. NLRB, 402 F.2d 987 (6th Cir.

ERE renee rere y Seer reer ree Ter 10

Mimseu, et alu v. Smitty Baker Coal Co., Tne., IBMA

JON. Nee Pere Tere rer re ee 9

NLRB v. Serivener, 405 U.S. 117 (1972) ......... Pe

Red Wing Carriers, Inc., 1830 NLRB 1208 ........... 5)

il Irclex Continued

STATUTES:

St Sees ERATED Civ ahhs Neck oe ae baad eekaehaa es P

SR Res en Se cd vb ei Nek eek weer ee aes i)

Sah Ow A Oa oe ayn te eh Oe an eE aes Ss

oe Te ee OP BOR. 6c wren ven bones Khan kakaees 9

ee AAS EID 0s 5555s Xe d a SARA REE Eek eS 7

eS ens; ee OTE Aaucak cei hee eae ea de ReuA Seka Ree 13

ee AIR 58 OD A cake eS ERR ee ER een Core eae , » ©

OTHER:

115 Cong. Ree, 27948, 91st Cong, Ist Sess. (October 1,

PER a ene en eke eee Clee SO REe Shee tee eos 10

Low. History of the Coal Mine Health and Safety Act,

p. 1035 (Committee Print, 1970) ...........0006. Ss

IN THE

Suprenw Court of the United States

OcroBpEen Tham, 1OTA4

aN.

KENTUCKY CARBON Convor ation and BrremMixous Coa

OPERATORS’ AssoclATION, Petitioners,

Ixtrenion Boarp or MiIxe OrerArions APPEALS and

FRANKLIN Pruiniirs, Respoudeuts

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

The Petitioners, Kentucky Carbon Corporation and

Bituminous Coal Operators’ Association, respectfully

pray that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Ap-

peals for the District of Cohimbia entered in this pro-

ceeding ou June 20, 1974.

OPINIONS BELOW

The opinion of the Court of Appeals, not vet re-

ported, is attached hereto in its entirety as Appendix

A. The opinion of the Interior Board of Mine Op-

erations Appeals, 2 IBMA 5 (1973), is attached hereto

in its entirety as Appendix Bb.

JURISDICTION

The judgment of the Court of Appeals for the Dis-

trict of Columbia was entered on June 20, 1974. A

timely petition for rehearing with argument was de-

nied on August 26, 1974, and this petition for certiorari

was filed within 90 days of that date. This Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether a mine employee's safety complaints to

fellow employees brings him within the protection of

Section 110(b)(1) of the Act which prohibits the dis-

charge of or discrimination against any miner who has

notified the Secretary of the Diverior or the Seeretary’s

authorized representative of any alleged violation or

danger.

STATUTORY PROVISION INVOLVED

Section 110(b) (1) of the Federal Coal Mine Health

and Safety Act (hereinafter the “Act’’), 30 U.S.C.

§ 820(b) (1), provides:

“No person shall discharge or in any other way

diserimin: ate against er cause te be discharged or

discriminated against any miner or any authorized

representative of miners by reason of the fact that

such miner or representative (A) has notified the

Seeretary or his authorized representative of any

alleged violation or danger, (B) has filed, insti-

tuted, or caused to be filed or mistituted any pre-

ceeding under this Act, or CC) has testified or is

about to testify in any preceeding resulting from

the administration or enforcement of the provisions

of this Act.”’

STATEMENT OF THE CASE

This action was brought by the Respondent Phillips

against the Petitioner Kentucky Carbon Corporation

(hereinafter ‘tthe Company’), before the Secretary of

the Interior under Section 110(b)(1)(A) of the Act

[30 U.S.C. §820(b)(1)(A)J. The Respondent was

seeking reinstatement, back pay and other damages

contending he was discharged in violation of Section

110(b) (1) (A) of the Act which prohibits the discharge

of or discrimination against a miner for notifying **the

Seeretary or his authorized representative of any

alleged violation or danger....”’

The Respondent was a shuttle ear operator at a coal

mine operated by the Company in Phelps, Kentucky.

It was Respondent's duty to receive coal from a

mechanized loader working at the face of the mine and

transport that coal by shuttle car to a conveyor helt.

The loader was equipped with water sprays to wet

down the coal and rednee dust.

While on duty, Respondent refused te continue his

work because, in his opinion, the water sprays on the

loader were not working properly. The section fore-

man disagreed with Respondent's opinion and directed

him to resume work. Wien Respondent refused to

resume work, the section foreman discharged hin.’

1 Respondent was thereafter given a written discharge slip in-

forming him that he had been discharged **{F Jor interfering with

the operation of the mine and abridging the rights of management.

Also refusing te obey a direct and proper order.”’

roman

The Respondent is a .nenber of the United Mine

Workers of America, the bargaining representative of

the miners employed at the mine. The contract be-

tween the Union and the Company provides for 4

detailed grievanee procedure, culminating in binding

arbitration. A grievance was filed on behalf of the

Respondent alleging that he had been wrongfully dis-

charged. After an unsuceessfy] attempt to resolve the

matter in the grievance procedure, the dispute was re-

ferred to an umpire for final and binding decision,

After hearing testimony for both the Company and

Union witnesses, the umpire rendered his final and

binding decision, denying Respondent's grievance, The

umpire held, in pertinent part:

“Under the Management of Mines Clause of the

vontract the management of the mine, the diree-

tion of the werking force, is vested exclusively in

the operator. The « nly justitiable reason a miner

would have to refuse to obey a direct order to

eoutinue to perform his normal duties. is that such

an order would put him in danger of immediate

personal injury or danger to his life. Such danger

did not exist in this case.

“The grievant in this case was hot working c¢on-

tintously near the face of the coal where he com-

plained of excessive dust, The only time he was

there was when he was Waiting to have his bugey

loaded or his buggy was actly being loaded. The

men who were working ou the equipment at the

face of the coal were there continuously during

their shift. They continued on with their work

and did not walk off the job. There is no showing

in this case that the grievant was in any immediate

danger of great physieal harm or danger to his life

by continuing to carry out his duties as the other

employees of this section continued to do,

“Tt has in all cases known to this umpire been

held that failure to carry out an order to perform

duties assigned to a miner is a violation of the

Management of Mines provision of the contract, Tf

each miner can decide under what couditions he

would work then the Management of Mine clause

of the contract would hove ne meaning ad mice

agement would have ne coutrel of the operation of

the mines and the result would be chaos,

* * %

‘Tn this case the grievant adinits that he refused

to work and obey a direct order of taamasement

perform his duties and there is ve showing he as

in immediate danger of serieus iajurs or loss of

life. As unpleasant as it ix the umpire miret fined

that the management had the right under sueh civ-

cumstances to discharge the employee.”

The Kespondent then complained to the National

Labor Relations Board that his discharge was diserin-

inatory. On December 17, 1971, the Regional Director

vofused to issue a complaint against the Company. Phe

Regional Director wrote:

“The investigation has disclosed that there were

no employees, other than Franklin Philips [Re-

spondent ], who had eoniplaiied te their superviser

about the dust conditions in thé mine ov the date

in question. Furthermore, the then current cel-

lective bargaining azreement contained an implied

no-strike clause provisies: in the eliase which piro-

vided for arbitration cf disputes. Therefore, under

these circumstances it was decined appropriate

that Phillips was obligated to erbitrate his griev-

ance and conkd net legally go on strike. unless

there were abnormal working conditions ji the

mine on the date in question. Moreover. it las

been conehuded that the instant factual situation

does not satisfy the requirements of taboormal

working conditions’ as detined by the Board in Red

Wing Carriers, fie. WO NLR ios."

The Respondent could have appeaicd this refusal to

issue a complaint to the NLRB Generali Counsel isi

Washington, D. C., but apparently did not do so,

The Respondent next instituted this proceeding

against the Company before the Se: ‘retery of the In-

ter lor, contending that his discharge was in violation

of Section 110(b)(1)(A) of the Act [30 U.S.C,

§ 820() (1) (A) ] which provides:

“No person shall discharge or in any other way

discriminate against or enuse to be dixe ‘charged or

discriminated against any miner... by reason of

the fact that such miner... CA) hi: is notified the

Secretary or his authorize d | represent itive of any

wleged violation or danger a

There is no evidence in the record that the Respondent

or any representative of his notified either the Secere-

tary of the Department of the Tnterior of any of che

Seeretary’s authorized representatives of any danger

or safety violation inthe mine. Notwithstanding these

facts, the Hearing Examiner (now Administrative Law

Judge) held that the Company had, by its diseh: irge

of the Respondent, violated the statute beeause he hed

made certain omplaints to the mine safety committee.

The Tnterior Board of Mine Onerations Appeals

reversed the Tearing Examiner, holding that there was

no substantial evidenve in the reeord to justify the Exy-

aminer’s finding that the Company discharged the Re-

spondent for complaining about safety to the mine

safety committee, On the contrary. the Board found

the preponderance of the evidence established that the

reason for the discharge to he the refesal of Phillips

to obey the direet order of the foreman to hand coal

Furthermore, the Board held that sinee Respondent's

only complaints had been to his foreman or members

‘

of the mine safety committee, uot to the Secretary or

his authorized representative, there could uot be, in

any event, a Violation ef § T1OCb) (1) CA) of the Act.

The Board did not accept the Hearing Examiner's

view that it was suflicient for the Respondent to have

notified the mine safety committee of certain safety

conditions not related te the issue over which he ceased

work—the water sprays.

The decision of the Board was the final decision of

the Secretary of the Laterior. The Respoudent sought

review of the Board's cecision in the Court of Appeals

for the District of Columbia. Surisdiction of the Court

of Appeals was invoked under Section iO6(a) of the

Act [30 U.S.C. §816(a) |. which provides for judicial

review of a final decision of the Seeretary of the

Interior.

The Court of Appeals for the District of Columbia,

in a twe to one decision, reversed the decision of the

Board holding that the effective cause of the Respond-

ent’s discharge was his complaint about hazardous

working conditions (Appendix Avy. Ta). that a iiner

brings himself ander the coverage of the Act by re-

porting safety violations to his foreman and mine safety

committee and that a miner need not notify the Seere-

tary of the Tnterior or his authorized representative

before he is protected ander the Aet (Appendix A. p.

a). Judge Robb. in dissenting opinion, stated that

the majerity opinion overrides a clear and unambig-

uous statutory provision and, by vielating the stand-

ard of judicial review commanded by Section 106(h)

of the Act. substituted a breader protection which the

majority believed miners should have but which was

not provided by Congress in the Act.

REASONS FOR GRANTING THE WRIT

1. This Case Involves an Important Issue of First Impression

Under the Federal Coal Mine Health and Safety Act Whicn

Issue Affects Thousands of Persons in the Coal Industry as

Well as Persons in Other Indusiries.

This case involves an important issue of first im-

pression as to the coustruction of a major provision

of the Federal Coal Mine Health and Safety Act and

the role which Congress intended Scetion T10(b) to

play within the overall framework of a delicately drawn

national labor poliey? The importance of the issues

here is not unlike that of the issies presented in Gate-

way Coal Co.Vv. United Mine Workers, — U.S. —, 94

S.Ct. 629 (1974) and hes a direct impact upon the

contractual procedures of the parties for resolution of

safety disputes and other disputes over terms and een-

ditions of cmplovinent. the contractual and statutory

rights of coal mine operaters aid other emplovees to

manage their business aud direct their work foree, and

the contractual and statutory proceaures for the pro-

tection of certain activities of coal miners and other

employees,

Affected by the decision below are the rights and

obligations of not only the more than 140,000) coal

miners and the operators of some 2.000 bituminons and

anthracite coal mines in this eeuntry, but also the rights

and obligations ef every employee and emplover subjeet

to similar antidiserimination provisions of the Pair

Labor Standards Act, 29 ULS.C. § 201 ¢f seq., the Na-

“Fug. the Conference Committee in its report stated:

“Nothing in this Section {110} is intended to interfere with

or preatupt any collective bargaining agreement.”"

Legislative History of the Coal Mine Health and Safety Act,

p. 1935 (Committee Print. 1970),

tional Labor Relations Act, 29 U.S.C. § 141 ef seq. and

the Oceupational Safety and Health Act, 29 U.S.C.

$651 cf seq. In addition, a major legislative proposal

(S. 2117) is pending which would extend the protection

of the autidiserimination provision of the Occupational

Safety and Health Act to the more than 200,000 miners

now employed in over 10,000 metal end non-metallic

mines in this country.

2. The Construction cf §110(b3(1)(A) of the Act by the Court

of Appeals Is Inconsistent with the Construction Given by

the Administrative Agency Charged with the Enforcement

of Such Provision and Is Clearly Wrong.

Viewed in its narrowest seuse, the majority opinion

of the Court of Appeals conchides that an suthorized

representative of the Seeretary of the Interior, for

purposes of §1100b) (1) CN) of the Act. need not be

a coal mine inspector or other representative of the

Department of the Interior. Remarkably, the majority

holds that an “authorized representative’ may be a

fellow eniployee at the mine. This view flows from a

strained, if not centorted, reading of statutory Jan-

guage that has always been regarded as clear on its

face. and is inconsistent with existing administrative

interpretation.’

The plain language of the statutory provision re-

quires that notice be given ‘te the Secretary or his

authorized representative... 7. Tt is uneontested on

the record that no such notice on any alleged safety

violation was ever given to the Secretary, to a mine

inspector, or any other agent of the Secretary,

The legislative history supports the Board's decision

below. Senator Edward Kennedy, who sponsered

4Se0e Appendix A: Appendix B: and Munsew, cf al vy. Sinitty

Baker Coal Company, Ine., ¥ BMA 144 (1972).

§$110(b) as an amendment on the Senate floor, ex-

plained that:

**My proposed amendment would make it unlawful

for any person to discharge or otherwise diserim-

inate against a miner for bringing suspected vio-

lations of this act to the attention of authorities.”

(Emphasis supplied). 115 Cong. Ree. 27948, 91st

Cong., Ist Sess. (October 1, 1969), |

* Authorities,” of course, would in this context be

the governmental agency, the Department of Interior,

entrusted by Cougress with the enforcement of the Act,

not private individuals who had been appeinted to a

mine safety committee by the Union.

The Senator went on to liken his amendment to

§8(a)(4) of the National Labor Relations Act. bid.

But §8(a) (4) does not apply unless the employee was

discriminated against while he was assisting the Beard

in its investigative and or prosecutorial functions.

Thus, it has been held not a vielation for an emplover

to discharge an employee hecause he threatened” to,

but did not go to the National Labor Relations Board.

Hoover Desiqu Corp.Vv. NLRB, 402 F.2d 987 (6th Cir.

1968). This Court's reeent decision in NLRB y.

Serivener, 405 US. 117 (1972) merely emphasizes this

point, as that ease involved communication by an em-

ployee to an NLRB investigator concerning a pending

charge,

Henee, since the purpose of statutery prohibitions

like §110()) is to protect the integrity of the agency's

investigative proceedures once they are formally in-

voked, it is patently a rewriting of the statute to extend

§110()) to a point in time when the agency has not

even been contacted,

The argument that a complaint to the safety commit-

tee is but the first step leading to the Secretary or his

representative, aid should be similarly protected is not

only legally unsound but factually vtiue as can be

seen from this very proceeding where Respondent's

prior complaints and those of others were adjusted,

and never earried bevond Union representatives. Had

Congress desired to bring within the statutory probibi-

tion all safety complaints, to whomever made, it would

have been easy to do so. It must be presumed that the

omission Was intentional.

“et

The opinion of the majority of the Court in this

case, like the majority of the Court of Appeals in

Gateway Coal Company Vv. United Mine Workers, 466

F.2d 1157 (3d Cir, 1972), rev'd, 38 L.Ed.2d 583, 94

S. Ct. 629 (1974), conceived of the problem of indus-

trial safety as sai generis in the context of industrial

relations and, hence, warranting the development of

new labor concepts more suitable to supposedly mnique

cireumstanees. In so doing. the majority broadened

the scope of the Act well beyond the well-defined

parameters of the statute and the unambiguous intent

of Congress.

The construction of the statutory provision in ques-

tion by the Court of Appeals ignores the teachings of

Gateway regarding the impact of the national labor

poliey on safety disputes, confuses contractual pro-

eedures for resolution of safety disputes with statntory

prerequisites for employee discrimination claims, fails

to consider the discriminatory effect of its decision on

those thousands of coal miners who are not employed

under any labor agreement at all, let alone one with a

grievance procedure for safety disputes, and denigrates

the effectiveness of other statutory remedies available

to coal miners engaged in concerted or individual ae-

tivities of a protected nature.

The effect of the majority epinion is to transform

a narrow statutory provision whose purpose is to pro-

tect the investigatory procedures of the Secretary of

the Interior into one of wnimited dimensions, whose

single purpose would be the review of arbitration deci-

sions in safety disputes, the finality and conchisiveness

of which were previously agreed upon by laber and

management under prior and existing labor cortracts.

The probable consequence of the majority opinion is

that a coal miner, believing that an unsafe condition

exists, and without any attempt to gain authorization

from his foreman for such action. will proceed to at-

tempt on his own authority to correet a condition on a

piece of equipment for which he has no responsibility.

Such a conelusion is not necessary for the protection

of the miner in this or any other similar situation. The

labor agreement for the coal industry makes provision

for the coal miner to call in an employee mine safety

conmnittee to inspect a condition. Such a committee

has the contractual right to declare an imminent hazard

and cause the coal miner or miners to be renioved from

an allegedly hazardous area. The Respondent failed

to follow this procedure which provides all the pro-

tection he needs, but instead, chese to take matters into

his own hands. To sanction this kind of conduct could

only lead to a complete breakdown in diseipline and

Inanagement and to utter chaos in the nation's coal

mines,

The decision of the majority is clearly wrong. No-

Where in the statute or its legislative history is there

authority for holding that a safety complaint mide to

a fellow employee satisties the statutory requirement

of a complaint to an “authorized represeutative” of

the Secretary of the Interior. This construction clearly

is contrary to the plain language of the statute, the

administrative interpretations of that language and

legislative history reflecting a more restrictive view

and frustrates contractual proceedures agreed upon by

the union and mine management to resolve disputes,

2. The Circuit Court of Appeals Has So Far Departed from

the Accepted and Usual Course of Judicial Proceedings as

To Call for an Exercise of This Court’s Power of Super-

vision.

The majority opinion of the Court of Appeals calls

for an exercise of this Court's power of supervision

because such opinion is a clear departure from: the

express requirement in § 106Cb) of the Act [80 U.S.C.

$816(b) | which prescribes the sqpe of judicial review,

that being review of the final decision of the Secretary

of the Department of the Interior to determine whether

such decision is supported by substantial evidence in

the record considered as a whole, The Court of Ap-

peals is not permitted to review the case de nore or to

make findings of fact unless the findings of the Board

are clearly net supperted by substantial evidence.

The final decision of the Secretary of the Interior

was expressed by the Interior Board of Mine Opera-

tious Appeals. The Board concluded that the Re-

spondent was discharged because of his refusal to obey

a direct order from his foreman, a reason which is not

covered by §110(b) (1) of the Act. Accordingly, ihe

Board conchided that the Respondent was uot entitled

to any relief under the Act. The majority opinion of

the Court of Appeals docs not say that this conclusion

by the Board is unsupported by substantial evidence

but clouds the question of substantial evidence by

digressing to point out that the substantial evidence

question was no question at all. The majority opinion

concludes independently that Respondent’s discharge

was covered under the Act because he would not have

made safety complaints but for the Act and because

the mine had established reporting procedures for

safety complaints which begin with the foreman, a

report to the foreman is a report to the ‘Secretary

or his authorized representative.”” These findings are

immaterial to the basie question in the case and were

made even after the majority admitted that the Bureau

of Mines is the representative of the Secretary of the

Interior, However, the majority stated that the pro-

cedures put into effect by the union and mine manage-

ment “bridge the gap”* between the miner and the rep-

resentative of the Secretary.

The Respondent could be granted relief in th s case

only if he was discharged for reporting to the ssecre-

tary or his representative. Therefore, the basie ques-

tion in the case is “*what was the reason for the dis-

charge of the Respondent’’, i.e., was he discharged for

reporting to the Secretary. The Board concluded that

the Respondent was discharged because of his refusal

to obey a direct order from his foreman. It did not

and could not have found that he was discharged for

reporting to the Secretary because there is not one

word of evidence that he so reported. No other reason

is material. The majority of the Court does not say

that the Board's conclusion is not supported by sub-

stantial evidence but repeatedly refers to findings by

the Hearing Examiner (which were not findings of the

Board and were in fact rejected by the Board as not

being supported by substantial evidence), selectively

credits testimony and ultimately reverses the decision

of the Board without meeting head on the question of

whether the Board's decision was supported by sub-

stantial evidence. It is elementary that this is a de-

parture from the scope of judicial review commanded

by §106()) of the Act and as such, warrants supervi-

sion and reversal by this Court.

However, the majority of the Court even went fur-

ther in its holding by suggesting that the union and

mine management eau “bridge the gap” that was left

in the Act by Congress. This suggests that private

parties ean amend an act of Congress by private agree-

ment which is clearly a departure from even the most

basie hornbook law. As Judge Robb correctly noted in

his dissent,’ “the gap can be closed only by an act of

Congress. The statute cannot be amended by a collee-

tive bargaining agreement.”

CONCLUSION

This case involves an important issue which affects

thousands of persous in the coal industry a well as

other industries. The majority decision of the Court

of Appeals is a shocking instance of a divided appellate

court brazenly substituting a philosophical concept for

a clear congressional mandate by devious contortion

of language. For the reasons expressed hereinabove,

a writ of certiorari should issue to review the judgment

4See Appendix A, p. 33a.

and opinion of the Court of Appeals for the District

of Columbia.

Respectfully submitted,

November 20, 1974

R. G. Ketiy

CHARLES QQ. GAGE

JACKSON, KeLiy, Hour AnD

O'R ARRELL

1601 Kanawha Valley Building

Charleston, West Virginia 25322

Counsel for Petitioner,

Kentucky Carbon

Corporation

Guy FARMER

PaTTrerson, BELKNAP, FARMER

& SHIBLEY

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Counsel for Petitioner,

Bituminous Coal Operators

Association

APPENDIX

APPENDIX A

NOTE: The Synogsis prepared by the :.eporter is printed herewith,

preceding the opinion, as a convenience for readers, and is not part of

the opinion.

Notice: T:. opinion is subject to formal revision before publication

in the Federal Meporter or U.S, App. D.C. Reports, Users are requested

to notify the Clerk of any formal errors in order that corrections may

be made before the bound volumes go to press.

United Stairs Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-1260

FRANKLIN PHILLIPS, PETITIONER

INTERIOR BOARD OF MINE OPERATIONS APPEALS,

RESPONDENT

BITUMINOUS COAL OPERATORS’ ASSOCIATION,

KENTUCKY CARBON CORPORATION, INTERVENORS

Decided 20 June 1974

Proceeding to review decision of the Interior Board of

Mine Operations Appeals which found, contrary to deci-

sion of Administrative Law Judge, that coal miner was

discharged for refusal to obey foreman’s order to haul

coal rather than because of miner’s complaints to the

mine safety committee. The Court of Appeals, Wilkey,

Circuit Judge, held that a coal miner brings himself

within the coverage of the Mine Safety Act by reporting

safety violations to his foreman and mine safety com-

mittee; that it is not necessary to formally notify the

Secretary of Interior or his authorized representative

before he is protected; that miner’s discharge was the

result of his disagreement with his foreman on safety

of coal dust level; that the disagreement was not suffi-

cient alone to bring the Safety Act into play but the

firing of the miner without giving him an opportunity

to take the complaint to the next stage of review brought

the Safety Act into play; and that miners are protected

against discrimination because of exercise of rights under

the Safety Act.

Reversed with directions.

No’ice: This opinion is subject to formal revision before publication

in t'.e Federal Reporter or U.S. App. D.C. Reports. Users are requested

to .otify the Clerk of any formai errors in order that corrections may be

méde before the bound volumes go to press.

United States Court of Apprals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

1To. 73-1260

FRANKLIN PHILLIPS, PETITIONER

INTERIOR BOARD OF MINE OPERATI” .o APPEALS,

RESPONDENT

BITUMINOUS COAL OPERATORS’ ASSOCIATION,

KENTUCKY CARBON CORPORATION, INTERVENORS

Petition for Review of an Order of the Interior Board

of Mine Operations Appeals

Decided 20 June 1974

Joseph W. Justice was on the orief for petitioner.

Irving Jaffe, Acting Assistant Attorney General, Harold

H. Titus, Jr., United States Attorney at the time the

brief was filed, Walter H. Fleischer, and Karen K. Siegel,

Attorneys, Department of Justice, were on the brief for

respondent.

Guy Farmer was on the brief for intervenor, Bitumi-

nous Coal Operators’ Association. Lynn D. Poole entered

an appearance for intervenor.

Robert G. Kelly and Charles Q. Gage were on the brief

for intervenor, Kentucky Carbon Corporation.

Before: HASTIE,* United States Senior Circuit Judge,

Ross and WILKEY, Circui: Judges

Opinion for the Court filed by Circuit Judge Wilkey.

Dissenting opinion filed by Circuit Judge Robb.

WILKEY, Circuit Judge: In this case the court is called

upon to determine whether the discharge of coal miner

Phillips, petitioner, was violative of the Federal Coal

Mine Health and Safety Act of 1969* (hereinafter Safety

Act|. We find that Phillips brought himself within the

penumbra of the Safety Act by notifying his foreman

of defective equipment creating dangerous working con-

ditions. Such safety violations, followed by worker noti-

fication to management and an ensuing disagreement, are

not to be equated with a simple labor dispute; safety

violations bring section 110(b)(1) of the Safety Act’

into operation. We reverse the decision of the Board

and reinstate the decision of the Administrative Law

Judge.

I. THE DISCHARGE OF PETITIONER PHILLIPS

Franklin Phillips was employed for two years by the

Kentucky Carbcn Corporation [Kencar] at its Kencar

No. i Mine in Phelps, Kentucky. During the last four

months of his employment he worked as a shuttle car

operator, i.e., he received coal from a mechanized loader,

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

183 Stat. 742, 30 U.S.C. § 801 et seq. (1970).

230 U.S.C. § 820(b) (1).

transported it to a belt conveyer, and there unloaded it

into a Roscoe which fed the coal to the belt. On 28

April 1971 Phillips was discharged orally by his foreman

because of his failure to comply with an order to return

to work, despite his belief that the working conditions

were dangerous. Two days later a written discharge slip

from Kencar topside management was presented to

Phillips.’

For several months prior to the discharge Phillips

and other employees had raised complaints with their

foreman, H. E. Edwards, concerning health and safety

aspects of their work area.* Complaints centered on ex-

cessive coal dust and defective electrical wiring, serious

problems of both health and safety underground. After

the foreman failed to resolve satisfactorily these prob

lems, complaints were taken to the members of the Mine

Safety Committee. The Committee, which is provided for

in the collective bargaining agreement, consists of elected

representatives of the miners, who are authorized to in-

vestigate safety and health conditions and who may close

an area of a mine if imminent danger to the men is

threatened. The Committee was often able to insure that

dangerous conditions were properly dealt with by the

foreman, but several uncorrected conditions were reported

to the Union District Safety Coordinator.’

’ The discharge slip stated that he was fired “For interfer-

ing with the operation of the mine and abridging the rights

of management. Also refusing to obey a direct and proper

order.” Further, the slip said that “In addition you have

received 3 disciplinary action slips since 1969—two for

irreguiar work, and one for unsatisfactory work.”

‘See Decision of Hearing Examiner (Administrative Law

Judge) “8, in Appendix for Petitioner [hereinafter App.]

at 15.

‘ See ibid. The Union District Safety Coordinator has the

duty of coordinating resolution of safety complaints be-

In January 1971 a spot inspection of the mine was

made by a federal safety inspector.” He required the

shutting down of a section of the mine in which Phillips

worked because of loose coal and coal dust, and improper

splicing on electrical equipment.’ Corrections of these

safety violations were undertaken, and the mine was

reopened on the same date. However, a Federal Bureau

of Mines Notice of Violation charged Kencar with ex-

cessive respirable coal dust between 18 March and 1

April 1971.

Both before and after the federal orders Phillips per-

sonally lodged complaints concerning excessive coal dust

and improper wiring with the foreman and with the Mine

Safety Committee.* His reports to the foreman were

found by the Administrative Law Judge below to anger

the foreman, to the point of his throwing objects to the

ground and declaring that Phillips was a troublemaker.*

One method of reducing coal dust used in the mine

involved water sprays on the loader: water would be

sprayed to wet down the coal and coal dust as the coal

was poured into shuttle cars. The Administrative Law

Judge found that while Phillips was employed as a

shuttle car operator the sprays often were clogged and

thus defective, requiring frequent cleaning.”

tween miners and mine operators, federal inspectors, and

state inspectors.

‘The record does not indicate the impetus behind this par-

ticular inspection. See id. § 10, in App. at 16.

*Id. | 9, in App. at 15-16.

*Id. €§ 15, 16, in App. at 17.

*Id. £19, in App. at 19. We assume Phillips was a trouble-

maker for Kencar; the question is whether such trouble-

making was justified legally.

*° Id. JJ 19, 20, 21, in App. at 19.

On the day of the discharge Phillips reported to the

foreman that the water sprays were not operating prop-

erly. After indicating that he would investigate the mat-

ter, the foreman left that section of the mine. The men

found that the dust becaine too thick while working,

and the loader operator Ermil Justice asked Phillips to

help him clean out the sprays. When the foreman re-

turned, according to Phillips, this exchange occurred:

[T]he foreman come over while we were working on

it and asked what was the matter. I told him we

were trying to unstop the water and get water pres-

sure on the loader. He said he was tired of that

damned water situation and he was getting tired of

it, he was going to put a stop to jit one way or an-

other. I said, “I worked in the dust a long time and

I can’t get nothing done about and I’m not going to

work in it.” He said, “If you don’t want to work

in it, I’ll just take you outside.” And I said, “No,

I’ll go on my own. You're not — me anywhere.

I'll go on my own.” He said, “As far as I’m con-

cerned, you’re fired.” And I said, “Suit yourself,

I'll just go right on outside like you told me.” ™

Phillips then left the mine, and on 30 April a written

discharge was received by him.”

1 Addendum to Brief of Respondent at 4a-5a [hereinafter

Add.]}.

12 The opinion expressed by the NLRB Regional Director in

a letter, relied on by our dissenting colleague, “. . . that there

were no employees, other than Franklin Phillips, who had

complained to their supervisor about the dust conditions in

the mine on the date in question,” is irrelevant and obscures

the relevant facts. The shuttle car operator, Phillips, and

the loader operator, Justice, were the two in position to know

whether the spray was operating properly, before the other

men would necessarily be aware of the resulting increase in

dust. The spray was not operating properly and it was the

loader operator Justice who in this instance initiated the work

stoppage to clean the spray.

Significantly, the loader operator Ermil Justice was not dis-

charged, nor does he seem to have been disciplined for his

This version of the events was accepted by the Ad-

ministrative Law Judge as a correct account of what

happened. It should be noted, however, that the foreman’s

testimony conflicted with Phillips’.

It appears that Phillips then spoke with his Union, the

United Mine Workers, for the Union filed a grievance

under the National Bituminous Coal Wage Agreement of

1968 on 6 May 1971 with the Union-Corporation Joint

Board of Arbitration. The Union charged that Phillips

was wrongfully discharged “while helping the loader op-

erator clean out water sprays on the loader te prevent a

dust hazard at the request of the loader operator.” '* The

participation in cleaning the water sprays. The obvious in-

ference is that Phillips was singled out because of his previous

safety complaints, none of which were shown to be unjusti-

** The foreman’s testimony was as follows:

When I went to the loader, I asked Ermil Justice, the

loader operator, “What was the trouble,” and he said

Franklin Phillips said he didn’t have enough water. So

I told him to turn it on, to turn the water on and let

me see it, to see how much water pressure he had.

1 asked Franklin Phillips, I saw the water was good

water and I asked Franklin Phillips to get on his buggy

and he told me he wasn’t going to haul no coal.

Q: Did he give a reason?

A: Not the first time, I don’t think he did. And I

asked him again. I told him, “Get on your buggy and

haul coal,” and he didn’t give me a reason then. So I

asked him a third time and he said he wasn’t going to

haul no coal and that’s when I fired him for refusing.

Q: Did you determine at that time whether these men

had poor water pressure before they took the sprays

off?

A: No. I observed the water earlier in the shift and

it was good water.

Add. at 17a-18a.

*See App. at 22.

Arbitration Board referred the matter to an umpire for

final decision. On 29 June 1971 he determined that the

Union grievance should be denied, since evidence es-

tablished that Phillips had refused to haul coal when

ordered to do so by the foreman, and the Union had not

shown such hazards as would justify refusal. However,

the umpire also stated that he had “no authority to inter-

pret or enforce the regulations of the Federal Health

and Safety Act,” and declined to rule on Phillips’ asserted

rights under the Safety Act."

Philiips then sought aid from the National Labor Re-

lations Board in the form of a complaint against Kencar.

This was refused by the Regional Director on 17 De-

cember 1971 on the ground that arbitration was required

*% Ibid. The arbitration agreement and proceeding do not

preclude the court from taking jurisdiction of the Mine Safety

Act question. The recent Supreme Court decision in Gateway

Coal Co. v. United Mine Workers, 42 U.S.L.W. 4095 (U.S. 8

January 1974), is not to the contrary. Phillips had begun the

mine safety complaint process by notifying his foreman of

the possibility of a dangerous condition, and was then fired

by the foreman. This is very different from the situation in

Gateway Coal, where the union struck to protest the alleged

safety hazard created by retention of foremen who had faisi-

fied safety records. Furthermore, the aibiirator here spe-

cifically denied that he had authority to consider the Safety

Act. Thus, if the court does not interpret and enforce the

Act, the Act will lose any effectiveness whatever.

Our interpretation of the relationship between arbitration

and the Mine Safety Act is quite similar to the Supreme

Court’s analysis in an employment discrimination case, Alez-

ander vy. Gardner-Denver Co., 42 U.S.L.W. 4214 (U.S. 19

February 1974). There Justice Powell, writing for a unani-

mous Court, held that an employee’s right to a trial de novo

under Title VII of the Civil Rights Act of 1964 (concerning

his discriminatory discharge) was not precluded by previous

suomission of the grievance to final arbitration under the

collective bargaining agreement.

10a

before “striking,” unless there were abnormal working

conditions, which were not in fact present in this case.”

Up to this point, Phillips’ efforts through both his

Union and the NLRB had been unavailing, and it is

important to note why. The Union grievance Arbitration

Board umpire declined to rule on Phillips’ rights under

the Safety Act, which are the rights now involved here.

The NLRB Regional Director appeared tu be completely

confused as to what rights Phillips was asserting, the

Director’s rationale referring strangely to a collective bar-

gaining agreement with a “no strike clause,” that Phillips

“could not legally go on strike,” and that he “was obli-

gated to arbitrate his grievance.” This rather ignored the

obvious fact that far from trying to go on strike, all

Phillips wanted was his job back, and that he had tried

arbitration, with the result that the umpire declined to

rule on the one statute which could help him.

What this adds up to for us, as at this point it ap-

parently did for Phillips, is that if there is no right of

action under the Mine Safety Act independent of the

usual labor dispute settlement mechanisms, there is no

right of action under the Mine Safety Act at all. So,

after this legal education at some cost in time and money,

Phillips applied to the Secretary of Interior for review of

his discharge under the Safety Act. After a hearing the

Administrative Law Judge ruled on 8 June 1972 that the

discharge violated section 110(b)(1) of the Coal Mine

Health and Safety Act.’ The Administrative Law Judge

‘° See Brief of Intervenor, Bituminous Coal Operators’

Association, at 4. No appeal was taken from the Regional

Director’s decision.

"30 U.S.C. § 820(b) (1) mandates that

No person shall discharge or in any other way discrimi-

nate against or cause to be discharged or discriminated

against any miner or any authorized representative of

miners by reason of the fact that such miner or repre-

lla

found that the mine foreman had reasonable grounds to

know that Phillips had made repeated complaints both

to the foreman himself and the Mine Safety Committee

regarding electrical and coal dust violations. The ALJ

credited Phillips’ testimony as being more reliable than

the foreman’s; in particular he found that the foreman

did not check the water sprays before discharging Phil-

lips.**

From the evidence as a whole, the ALJ concluded that

the discharge of Phillips was

arbitrary and discriminatory against {Phillips} be

cause of his activities in complaining to the foreman

and the Mine Safety Committee about safety and

health conditions and because of |Phillips’] safety

activities in assisting other miners in corrective

maintenance to prevent exposure to excessive and

hazardous coal dust.’

And he further concluded

that the motivating factor in the discharge of [Phil-

lips] was an intent to penalize him for such safety

complaints and safety activities, and to set an ex-

ample for other employees not to complain of safety

and heaith conditions or interrupt production by

making necessary safety adjustments and repairs.*°

On appeal the Interior Board of Mine Operations Ap-

peals reversed the Administrative Law Judge. The Board

recognized that Phillips had lodged complaints with the

sentative (A) has notified the Secretary or his authorized

representative of any alleged violation or danger, (B)

has filed, instituted, or caused to be filed or instituted

any proceeding under this chapter, or (C) has testified

or is about to testify in any proceeding resulting from

the administration or enforcement of the provisions of

this chapter.

%* Decision of Administrative Law Judge, in App. at 24

n. 4.

19 Jd. § 33, in App. at 21.

20 Jd. § 34, in App. at 22.

l2a

foreman and the Mine Safety Committee prior to his

discharge. However, it also noted that Phillips did not

seek any immediate redress upon being fired by the

foreman.

The Board found no substantial evidence to support

the Administrative Law J udge’s findings of a discrimina-

tory discharge.*' Instead, the Board found that the rea-

son for the discharge was the “refusal of Phillips to obey

the direct order of the foreman to haul coal.” #*

Furthermore, the Board found the Administrative Law

Judge’s construction of the scope of section 110(b) (1)

to be erroneous. According to the Board, a discharge

motivated by complaints to the Mine Safety Committee

would not make a prima facie case under the Safety Act,

because the scope of protection of the Act is narrow.

Complaints must be made to the Secretary or his au-

thorized representative, not to fellow employees, super-

visors, or the management of the mine.”* Since the Board

found nothing in the record to show that Phillips had

initiated or intended to initiate a report to the Secretary

or his authorized representative, Phillips had not suc-

ceeded in bringing himself within the protection of the

Safety Act.

II. THE PROPER SCOPE OF THE MINE SAFETY AcT

A. Cause of Discharge Sufficient to Invoke the Act

The resolution of the issue here depends on the cover-

age of and the procedure under the Mine Safety Act.

The Administrative Law Judge’s findings are quoted in

text at notes 19, 20 supra.

** Decision of Board, in App. at 37.

**Id. at 39. This has been the position of the Board in

another case which is presently before this court, Munsey Vv.

Morton, No. 72-2095.

Obviousiy the Board and the Administrative Law Judge

differed in their interpretations. Specifically, we must

determine whether a miner brings himself under the

coverage of the Act by reporting safety violations to his

foreman and Mine Safety (:mmittee, or whether he must

formally notify the Secretary of Interior or his au-

thorized representative before he is protected. We be-

lieve that the answer is clear: given the mine’s procedures

regarding safety complaints, the coverage of the Act

begins when the miner notifies his foreman and/or safety

committeeman of possible safety violations.

It is important to recognize at the outset that this

case arises out of the enforcement of the Mine Safety

Act, not an ordinary labor dispute. While a simple em-

ployee discharge may be merely a labor dispute, when

allegations of safety violations are not frivolous the court

must carefully review the case to determine whether the

Mine Safety Act has been obeyed. Our review indicates

that the Act is involved here, and indeed we conclude

that Phillips has presented a valid cause of action.

Safety costs money. The temptation to minimize com-

pliance with safety regulations and thus shave costs is

always present.* The miners are both the most inter-

ested in health and safety protection, and in the best

position to observe the compliance or noncompliance with

safety laws. Sporadic federal inspections can never be

frequent or thorough enough to insure compliance. Miners

whe insist on health and safety rules being followed, even

at the cost of slowing down production, are not likely

to be popular with mine foremen or mine top manage-

** Responsible mine operators who comply with health and

safety standards have an obvious interest in seeing uniform

standards enforced throughout the industry: competitors who

get away with cutting costs by cutting safety are really en-

gaged in unfair competition; the temptation to meet it by

engaging in similar tactics is ever-present.

l4a

ment. Only if the miners are given a realistically effec-

tive channel of communication re health and safety, and

protection from reprisal after making complaints, can

the Mine Safety Act be effectively enforced.

There is no question but that Phillips felt there was a

danger due to excessive coal dust on 28 April 1971. The

previous actions of the federa] inspectors and the Mine

Safety Committee confirm that Phillips was not overly

or unreasonably worried about the dangerous conditions

in the mine. When Phillips felt that the dust condi-

tions were harmful, he did what he could to reduce the

risk—he began to clean the water sprays. It was at this

point that the foreman told him to start work, as opposed

to continuing to fix the safety equipment. After reject-

ing Phillips’ contention that it was necessary to reduce

the dust, the foreman told him either to start work or be

fired. Thus Phillips was given the choice of either work-

ing in what he felt was an unhealthy, unsafe area. or

being discharged for not accepting the foreman’s evalua-

tion of the danger. His discharge on 28 April was the

direct result of his disagreement with the foreman on

the safety of the coal dust level.

We digress here to point out that the “substantial

evidence” question is no question at all. Our dissenting

colleague adequately describes the Administrative Law

Judge’s and Board’s conclusions on this: “First, the

Board found there was no substantial evidence to sup-

port the finding of the Trial Examiner that Phillips was

discharged because of his safety complaints and safety

activities. After reviewing the evidence the Board found,

contrary to the Examiner’s conclusion, that the reason

for the discharge was the refusal of Phillips to obey the

direct order of his foreman to haul coal.” (P. 9) Of

**In the latest of the series, excessive coal dust had been

officially found within one month of Phillips’ discharge. Sec

pp. 3-4 supra.

lia

course, both the Administrative Law Judge and the Board

were right: Phillips was discharged because of his re-

fusal to obey a direct order to haul coal because in his

judgment the working conditions were unsafe and un-

healthy and Phillips and his co-worker were engaged in

an effort to repair the safety equipment (spray) before

resuming hauling coal. The Board never considered any

evidence different from the Administrative Law Judge’s

evidence; the Board simply summed up the evidence in

a conclusory way designed to characterize the issue as

an ordinary labor dispute—to which ordinary labor dis-

pute remedies would attach. To the court it seems in-

escapable that the whole dispute arises under the Mine

Safety Act and is governed by it; if there had been no

Mine Safety Act, it seems likely that Phillips would never

have registered this—and previous—safety complaints.

The Mine Safety Act protects miners who are dis-

charged as a result of their complaints concerning safety

violations in mines. Section 110(b)(1) prohibits dis-

charge of or discrimination against a miner by reason

of the fact that the miner

(A) has notified the Secretary or his authorized rep-

resentative of any alleged violation or danger,

(B) has filed, instituted, or caused to be filed or in-

stituted any proceeding under this chapter, or

ceeding resulting from the administration or en-

forcement of the provisions of this chapter.”

We believe that Phillips’ notification to the foreman of

possible dangers is an essential preliminary stage in

both the notification to the Secretary (A) and the insti-

tution of proceedings (B), and consequently brings the

protection of the Safety Act into piay.

7° 30 U.S.C. § 820(b) (1).

16a

B. Procedure

In so holding, we do not adopt either extreme urged

upon us. We do not think that merely because a dis-

charge originates in a disagreement between a foreman

and a miner that the Mine Safety Act is automatically

brought into play. Nor do we adopt the other extreme,

take the bare words of the statute with their most lim-

ited interpretation, and hoid that before a miner’s safety

complaint is accorded the protection of the Safety Act

the coal miner must have instituted a formal proceeding

with the Secretary of Interior or his representative.

Rather, we look to: the overall remedial purpose of the

stalute (discussed under C. infra); the practicalities of

the situation in which government, management, and

miner operate; and particularly to the procedure imple-

menting the statute actually in effect at the Kencar mine.

The existence of this procedure in itself was a practical

recognition that the bare words of the Safety Act. unless

implemented by some procedure at the mine to bridge

the gap between “the Secretary or his representative”

(presumably the Federal Bureau of Mines) and the coal

miner himself (the object of the Act), would be com-

pletely ineffective in achieving mine safety.

In summary, the procedure at the Kencar mine for

the processing of safety complaints was the following:

(1) miner notifies his foreman of the problem and

tries to obtain corrective action;

(2) if the foreman sy em the miner has the

right to call in the Mine Safety Committeeman to

evaluate the complaint;

(3) (a) if the Mine Safety Committeeman agrees

with the miner and the foreman fails to correct the

problem, the Committeeman can bring the case to the

entire Committee and they may order the mine sec-

tion closed;

(3) (b) if the Mine Safety Committeeman dis-

agrees with the miner, the latter can request a Fed-

17a

eral Mine — be called in. Pending that de-

termination, the miner is to be temporarily reas-

signed to another area.”

This finding of the Administrative Law Judge is not dis-

puted, and could hardly be disputed, as it rests on testi-

mony at the hearing of Kencar management that this

procedure was in effect before and on the day Phillips

was discharged.

The Administrative Law Judge further found:

It is conceded by Respondent that, pending a reso-

lution of a safety or health complaint, a miner at

the Kencar Mine had the right to refuse to work

under conditions which he believed in good faith to

be hazardous to his safety or health.”

Nothing in the Mine Safety Act or mine procedure sug-

gests that the company has a right to fire a miner for

refusing to work in a particular area of a mine when he

fears a chronic, long-term threat to his health or safety

there due to safety violations.”

27 See Decision of Administrative Law Judge 6, in App.

at 14.

28 Ibid. Emphasis supplied. The actual practice of the mine

followed steps (1) and (2) of the theoretical model, but it

varied thereafter. If the Mine Safety Committeeman could

not get the foreman to take appropriate action, he would

either call in a federal inspector or transmit the complaint

to the Union District Safety Coordinator, who might later

call in a federal inspector. Jd. 7, in App. at 14-15. Several

times in the months before Phillips’ discharge the Union

District Safety Coordinator was required to step in and re-

quest modifications for safety; the spot federal inspection

aiso unearthed safety defects.

2 "he collective bargaining agreement is inapposite because

the um; ‘re here explicitly refused to consider the Mine Safety

18a

The Administrative Lew Judge further specifically

found:

Pending a determination by the Federal inspector,

the miner was to be reassigned to other, temporary

duties. No case experienced in this mine actually

reached the stage of temporary reassignment pend-

ing a Federal inspection, but management acknowl-

edged at the hearing that under its practices and

the implementation of its bargaining agreement,

such would be the rights of the miners regarding

safety or health complaints.

7. It is evident that, although the above safety

complaint rights were acknowledged by management

at the hearing, they were not entirely understood by

the miners themselves.*°

It is clear beyond peradventure that Phillips was not

required to accept the foreman’s evaluation of danger;

it is equally clear that he was discharged for not accept-

ing the foreman’s safety determination. We reject the

Board’s suggestion that Phillips was discharged only for

a simple refusal to work. Rather, we conclude that the

effective cause of Phillips’ discharge was his complaint

about hazardous working conditions in the mine.

When the foreman told him he was fired, Phillips left

the mine. He was undoubtedly unfamiliar with the elab~

orate appeal and review procedure; he assumed that the

firing was final. In view of the discharge on improper

grounds,” we cannot hold Phillips to the standard of re-

Act and its coverage of safety threats of a non-im:nediate

nature. See p. 7 supra. And, there had been not only coal

dust but defective wiring violations recently found in this

mine (see p. 4 supra); excessive dust plus defective wiring

is an explosive safety hazard; we cannot assume that Phillips’

complaint went only to a long-term health hazard.

* Decision of Administrative Law Judge § 6, in App. at 14.

* The discharge slip was quoted in note 3 supra. The Ad-

ministrative Law Judge found that the three disciplinary

19a

quiring him to file a petition with the Mine Safety Com-

mittee, or to notify formally the Secretary or other au-

thorized person. Phillips “instituted [a] proceeding”

with the closest representative of any authority, i.¢., his

foreman, by making an effective complaint of a violation

of the Mine Safety Act, i.e., refusing to work in unsafe

conditions, for which he was promptly fired. While there

is a possibility that the foreman also was unaware of

the proper safety complaint procedures, nevertheless the

mine management should have known of these procedures

and rights, and with a greater time for reflection and in-

vestigation should have notified the miner of his rights

of appeal and quashed the discharge. In fact the manage-

ment did neither, but sent a formal discharge notice

asserting additional grounds, the validity of which the

foreman later denied. This ratification by Kencar man-

agement of the improper discharge, especially in view of

previous safety complaints, violated the Mine Safety Act.

The above discussion of the procedures necessary to

implement the Mine Safety Act makes clear our most

fundamental disagreement with the decision rationale of

the Board, espoused by our dissenting colleague here. The

method of “institut[ing] any proceeding” or “notif|ying!

the Secretary or his authorized representative” is not

spelled out in the Act, certainly not in terms cognizable

by a coal miner. The Kencar Mine management and

union representatives sensibly recognized this, and put

into effect a procedure to bridge the gap between the

miner in the pit and the Federal] Bureau of Mines, the

Secretary’s representative. That procedure had as its

action slips “were not pressed or proved by the Respondent

at the hearing. On the contrary, the foreman te: ified that

[Phillips] had been a very good worker—as good as ‘any

miner in the section.’... 1 find from the evidence as a whole

that the above added charges had no bearing upon the fore-

man’s decision to discharge.” Decision of Administrative

Law Judge {j 26, in App. at 20-21.

20a

first step the miner notifying his foreman of the problem

and trying to obtain corrective action. Phillips did pre-

cisely this in accordance with Kencar Mine’s approved

procedure to meet the standards of the Mine Safety Act.

Phillips was fired for doing so.

To hold that Phillips was not protected against dis-

charge because he took the first prescribed step under

the Kencar procedure to invoke the Mine Safety Act, to

hold that only 2 miner’s discharge after he reaches the

Bureau of Mines with his complaint is protected by the

Safety Act, would nullify not only the protection against

discharge but also the fundamental purpose of the Act

to compel safety in the mines.“

We believe that the Mine Safety Act, to be effective,

must be construed as we have here. If it is not, it will

be easy for management to avoid the prohibitions of the

Act. If every miner who complained of safety device

failures could be placed in Phillips’ situation, the Act

would be a hollow promise of protection; a foreman’s

determination of safety would become final.

C. Legislative History and Judicial Construction

Our view of the Mine Safety Act is supported by the

legislative history. Senator Kennedy, in introducing his

* See text at n. 24 supra. While previously Phillips had

filed safety complaints as an employee, after his discharge

he apparently assumed this charnel was no longer open to

him. Of course, to endorse this limited concept of the Safety

Act’s scope would be to put a premium on the company firing

first, before the employee has a chance to institute a proceed-

ing with the Secretary’s representative. To hold that only

a discharge after a formal proceeding has been instituted is

protected, but that a discharge after the miner has taken the

first step in the complaint procedure by complaining to his

foreman is not protected, would be to invite all employers to

gut the Safety Act by quick discharges of complaining em-

ployees. Yet this is where the Board’s view, endorsed by the

dissent here, would inexorably lead us.

Pla

amendment which became section 110(b) of the Safety

Act, noted the broad purpose of the provision:

the rationale for this amendment is clear. For

safety’s sake, we want to encourage the reporting

of suspected violations of health and safety regula-

tions. ...

But miners wil] not — up if they fear retalia-

tion. This amendment should deter such retaliation,

and, therefore, encourage miners to bring dangers

and suspected violations to public attention.”

Senator Kennedy also remarked that.

\ijt is especially important that miners not feel in-

hibited to point out health and safety violations be-

cause there is such a high degree of danger in the

mines.**

Given this wide scope of protection intended, a liberal

construction of the language of the Act is justified.”

The House Committee on Education and Labor in re-

porting on the Act also suggested a liberal construction:

Subsection (b) prohibits discrimination against

miners for having exercised their rights under this

Act or for having participated, in any way, in the

enforcement of the Act. The subsection provides

procedures for obtaining reinstatement and back pay

for miners discharged by operators and other reme-

dies for miners discriminated against.*

Furthermore, we note that the Third Circuit in consider-

ing a previous Mine Safety Act stressed a broad reading:

3115 Cong. Rec. 27948 (1969).

%* [bid.

> Thus we suggest it would be improper narrowly to con-

strue Senator Kennedy’s comment that his amendment would

prohibit discrimination against miners for bringing violations

“tc the attention of authorities.” [bid.

% House Comm. on Education and Labor, 91st Cong., 2d

Sess., Legislative History, Federal Coal Mine Health and

Safety Act 1122 (1970) (emphasis added).

22a

[Ijn construing safety or remedial legislation nar-

row or limited construction is to be eschewed. Rath-

er, in this field liberal construction in light of the

prime purpose of the legislation is to be employed.

This statute is remedial, with a humane purpose in

view and is therefore entitled to a liberal construc-

tion.”

The parallels between the Mine Safety Act and other

protective labor acts are significant. The Safety Act

provision which we here construe was introduced with

the announced intention of giving to miners “the same

protection against retaliation which we give employees

under other Federal labor laws.” ™* Specifically, the Na-

tional Labor Relations Act, the Fair Labor Standards

Act, and the Landrum-Griffin Act were all noted as pro-

tecting employees against discrimination because of exer-

cise of rights under the Acts.

The Supreme Court has construed the corresponding

NLRA provision broadly: in NLRB v. Scrivener, dba AA

Electric Company.” the Court held violative of the NLRA

the discharge of an employee for his giving a sworn

written statement to a NLRB field examiner who was

investigating an unfair labor practice charge. Justice

Blackmun, writing for the unanimous Court, was con-

cerned that the employee should be protected in the in-

vestigative stages as well as after filing of formal charges

or in giving formal] testimony. Such protection is neces-

sary “‘to prevent the Board’s channels of information

from being dried up by employer intimidation of pros-

27 St. Marys Sewer Pipe Co. v. Director of U.S. Bureau of

Mines, 262 F.2d 378 (3rd Cir. 1959) (citations omitted).

3° 115 Cong. Rec. 27948 (1969).

* 405 U.S. 117 (1972).

pective complainant: and witnesses.’” *° Furthermore,

Justice Blackmun stated that

the presence of th preceding words “to discharge or

otherwise discrimiiate” reveals, we think, particu-

larly by the word “otherwise,” an intent on the part

of Congress to afforc broad rather than narrow pro-

tection to the employee.’

In the Mine Safety Act tre words “in any other way

discriminate” may be similarly construed.

We believe our view of the scope of section 110(b) (1)

of the Mine Safety Act is the only practical one to en-

sure the health and safety of miners, which is the cen-

tral purpose of the Act. Holiing that miners are not

protected until they initiate formal procedure for review,

of which they may be unaware, would violate the goal of

protecting the miners’ health ani would thus violate the

Congressional intent." The resut we reach in this case

best comports with the remedial purpose of the legisla-

tion. Therefore, we reverse the decision of the Interior

Board of Mine Operations Apprals and reinstate the

decision and order of the Admin strative Law Judge.

So ordered.

“Jd. at 122 quoting John Hancock: Mut. Life. Ins. Co. V.

NLRB, 89 U.S.App.D.C. 261, 268, 191 F.2d 483, 485 (1951).

* 405 U.S. at 122.

* In stating the purpose and goals of the Act. the Congress

declared that “the first priority and concern of all in the coal

mining industry must be the health and safety of its most

precious resource—the miner; ... there is an urgen need

to proviide more effective means and measures for improving

the working conditions and practices in the Nation’s coal

mines im order to prevent death and serious physical harm,

and in order to prevent occupational diseases originating in

such miines.” 30 U.S.C. § 801 (a), (c).

25a

Ross, Circuit Judge, dissenting: I dissent on two

counts: (1) in my judgment the majority hus miscon-

strued section 110(b) (1) of the Act; and (2) assuming

that the majority rightly construes the Act, it is wrong

in overturning the findings of the Board on the facts.

The petitioner Phillips was a shuttle car operator at

a coal mine, his duty being to transport coal in his shuttle

car from a mechanized loader at the face of the mine to

a conveyor belt. The loader was equipped with water

sprays to wet down the coal and reduce dust. While on

duty Phillips refused to continue his work because in his

opinion the water sprays on the loader were not working

properly. The foreman disagreed with the petitioner’s

opinion and directed him to resume work. When Phillips

refused to obey the foreman discharged him.

Pursuant to the contract between the petitioner’s Union,

the United Mine Workers, and the company, the matter

of the petitioner’s discharge was submitted to binding

arbitration. The grievance submitted by the Union on

behalf of the petitioner alleged that he had been wrorg-

fully discharged. After hearing testimony from both cora-

pany and Union witnesses the umpire rendered his final

and bindirg decision. He held, in pertinent part:

Under the Management of Mines clause of the

contract the management of the mine, the direction

of the working force, is vested exclusively in the

operator. The only justifiable reason a miner would

have to refuse to obey a direct order to continue to

perform his normal duties, is that such an order

would put him in danger of immediate personal] in-

jury or danger to his life. Such danger did not exist

in this case.

The grievant in this case was not working con-

tinuously near the face of the coal where he com-

plained of excessive dust. The only time he was

26a

there was when he was —_ to have his buggy

loaded or his buggy was actually being loaded. The

men who were working on the equipment at the face

of the coal were there continuously during their

shift. They continued on with their work and did

not walk off the job. There is no showing in this

case that the grievant was in any immediate danger

of great physical harm or danger to his life by con-

tinuing to ca out his duties as the other employ-

ees of this section continued to do.

It has in all cases known to this umpire been held

that failure to carry out an order to perform duties

assigned to a miner is a violation of the Management

of Mines provision of the contract. If each miner

can decide under what conditions he would work

then the Management of Mine clause of the contract

would have no meaning and management would have

no control of the operation of the mines and the re-

sult would be chaos.

In this case the grievant admits that he refused

to work and obey a direct order of management to

perform his duties and there is no showing he was

in immediate danger of serious injury or loss of

life. As unpleasant as it is the umpire must find

that the management had the right under such cir-

cumstances to discharge the employee.

Phillips then complained to the National Labor Rela-

tions Board that his discharge was discriminatory. On

December 17, 1971 the Regional Director refused to issue

a complaint against the company. The Regional Director

wrote:

The investigation has disclosed that there were no

employees. other than Franklin Phillips, who had

complained to their supervisor about the dust condi-

tions in the mine on the date in question. Further-

more, the then current collective bargaining agree-

ment contained an implied no-strike clause provision

in the clause which provided for arbitration disputes.

Therefore, under these circumstances it was deemed

appropriate that Phillips was obligated to arbitrate

27a

his grievance and could not legally go on strike, un-

less there were abnormal working conditions in the

mine on the date in question. Moreover, it has been

concluded that the instant factual situation does not

satisfy the requirements of “abnormal working con-

ditions” as defined by the Board in Red Wing Car-

riers, Inc., 180 NLRB 1208.

Phillips next instituted the proceeding which is now

before us under section 110(b) (2) of the Federal Coal

Mine Health and Safety Act of 1969. (30 U.S.C. § 820

(b) (2).} Seeking reinstatement, back pay and other

damages he contended that his discharge was in viola-

tion of section 110(b) (1) of the Act which provides:

(b) (1) No person shall discharge or in any other

way discriminate against or cause to be discharged

or discriminated against any miner or any authorized

representative of miners by reason of the fact that

such miner or representative (A) has notified the

Secretary or his authorized representative of any

alleged violation or danger, (B) has filed, instituted,

or caused to be filed or instituted any proceeding

under this chapter, or (C) has testified or is about

to testify in any proceeding resulting from the ad-

ministration or enforcement of the provisions of this

chapter.

After a hearing the Trial Examiner (now called Ad-

ministrative Law Judge) concluded that the company had

violated section 110(b)(1) “by discharging the Appli-

cant . . . because he had notified his Mine Safety Com-

mittee of alleged safety violations and dangers in the

No. 1 Section of Respondent’s mine.” The examiner or-

dered the company to reinstate Phillips, with back pay

and the costs and expenses of the proceeding, including

attorneys’ fees.

The Board of Mine Operations Appeals reversed the

Hearing Examiner, holding that there was no substantial

evidence in the record to justify the Examiner’s conclu-

sion. On the contrary, the Board found the preponder-

Sow ee re

28a

ance of the evidence established that the reason for the

discharge was

the refusal of Phillips to obey the direct order of

the foreman to haul coa). Although the foreman’s

action may be looked upon as harsh or extreme, it

is not within the province of the J udge or this Board

to find that he had no authority to discharge any

miner who disobeyed an order to work or otherwise

acted in an unreasonable manner. We note that the

umpire in the arbitration proceeding concluded, “As

unpleasant as it is, the umpire must find that the

- management had the right under such circumstances

to discharge the employee” ( emphasis added) (Ex.

4(c), p. II). We are concerned here only with the

question of whether the discharge was in violation

of section 110(b)(1)(A) of the Act. The principal

objective of that section is to preserve the integrity

of the Act and not to provide a new forum for the

litigation of management and labor grievances,

(Emphasis in original. ]

II.

The majority concludes “that Phillips’ notification to

the foreman of possible dangers is an essentia] prelimi-

nary stage in both the notification to the Secretary ...

and the institution of proceedings... , and consequently

brings the protection of the Safety Act into play.” In

other words the majority says that when Phillips com-

plained to his foreman he “notified the Secretary or his

authorized representative” of the alleged violation or dan-

ger, within the meaning of section 110(b) (1) of the

Act. I cannot accept this construction of the statute.

In the first place it seems to me that the phrase “the

Secretary or his authorized representative” on its face

plainly ‘does not mean a foreman or the mine employees

serving on a safety committee. If Congress had intended

the phrase to have such an inclusive meaning, so that

any complaint by a miner concerning safety clothed him

with the protection of section 110(b) (1), I think Con-

29a

gress would have said so. If the majority opinion were

presented to a congressional committee considering amend-

ments to the Act it might persuade the committee that

section 110(b) (1) should be broadened to cover all safety

complaints no matter to whom they are made; but this

court is not a legislative committee.

My conclusion is reinforced when section 110(b) (1) is

considered in the context of other sections of the Act.

Thus the phrase “the Secretary or his authorized repre-

sentative” appears elsewhere in the statute; it is not an

isolated phrase used only in section 110(b)(1). Section

103(a), 30 U.S.C. § 813(a) requires that “Authorized

representatives of the Secretary shall make frequent in-

spections and investigations in coal mines... .” Section

103(b) (1) gives the Secretary “or any authorized rep-

resentative of the Secretary’’ a right ef entry to any coal

mine for the purpose of inspection or investigation. Sec-

tion 103(e) provides that in the event of an accident in

a coal mine where rescue and recovery work is necessary

“the Secretary or an authorized representative of the

Secretary shall take whatever action he deems appro-

priate to protect the life of any person, and he may, if

he deems it appropriate, supervise and direct the rescue

and recovery activity in such mine.” Sectiou 103(f) em-

powers “an authorized representative of the Secretary”

to issue safety orders in the event of any accident occur-

ring in a coal mine. Section 103(g! provides: “When-

ever a representative of the miners has reasonable

grounds to believe that a violation of a mandatory health

or safety standard exists, or an imminent danger exists,

such representative shall have a right to obtain an im-

mediate inspection by giving notice to the Secretary or

his authorized representative of such violation or dan-

ger.” Section i03(h) directs that at the commencen:ent

of any inspection of a coal mine “by an authorized rep-

resentative of the Secretary, the authorized representa-

tive of the miners at the mine at the time of such in-

30a

spection shall be given an opportunity to accompany the

authorized representative of the Secretary on such in-

spection.” Section 104, 30 U.S.C. § 814, deals in detail

with the findings to be made and the actions to be taken

by “an authorized representative of the Secretary”, with

respect to dangers or violations of health or safety stand-

ards discovered upon an inspection of a ccal mine.

From these numerous refereices to “authorized repre-

sentative of the Secretary” in the statute it seems plain

to me that when Congress used those words in section

110(b) (1) it meant a mine inspector or some other des-

ignated agent of the Secretary, and not some committee

or other representative of the miners. I think the pur-

pose of section 110(b) (1) is to protect the integrity of

the agency’s investigative procedure by assuring that a

miner who complained to the agency would not be penal-

ized. To hold that the section applies to a miner who

had never complained to the agency is I think to distort

the statute.

My reading of the Act is confirmed by Senator Ken-

nedy’s comments on the floor of the Senate at the time

he offered the amendment which ultimately became sec-

tions 110(b) (1)-(3). The Senator offered his amend-

ment as an addition or amendment to section 301(h) of

the Senate bill. Section 301(h) of the Senate bill became

section 103(g) of the statute as enacted. (See p. 5 supra.)

The Kennedy amendment was added to the Senate bill as

section 301(h) (2). The Senator said: “My proposed

amendment would make it unlawful for any person to

discharge or otherwise discriminate against a miner for

bringing suspected violations of this act to the attention

of authorities.” 115 Cong. Rec. 27948. (Emphasis added.)

By thus referring tc “authorities” and coupling his

amendment to those sections of the bill which dealt with

inspections by an authorized representative of the Secre-

tary, the Senator made it clear that the authorities he

dla

had in mind were mine inspectors or other designated

agents of the Secretary. See Legisiative History of the

Federal Coal Mine Health and Safety Act 540-41 (Comm.

Print 1970).

In his remarks on the floor Senator Kennedy noted

that his proposed amendment to section 301(h) “gives

to miners the same protection against retaliation which

we give employees under other Federal iabor laws.” 115

Cong. Rec. 27948. Among the other Federal labor laws

to which the Senator referred was the National Labor

Relations Act. That act provides, 29 U.S.C. § 158(a) (4),

that it shall be an unfair labor practice “to discharge or

otherwise discriminate against an employee because he

has filed charges or given testimony under this subchap-

ter.” It has been held however that this section does not

protect an employee who has not complained to the Board

or one of its agents. Hoover Design Corp. v. NLRB, 402

F.2d 987 (6th Cir. 1968). See NLRB v. Scrivener, 405

U.S. 117, 125 n.6 (1972).

I am puzzled by the majority’s suggestion that Phillips

came within the protection of section 110(b) (1) because

he was “unfamiliar with the elaborate appeal and review

procedure” established by the collective bargaining agree-

ment. Neither do I understand the suggestion that the

mine management was under a duty to explain matters

to Phillips. I think the proper interpretation of the stat-

ute should not depend upon whether Phillips understood

the collective bargaining grievance procedure. Moreover,

I believe it was the function of the Union, which repre-

sented Phillips, and not the company, to explain the pro-

cedure to him if he was unable to understand it. In any

event the record does not establish that Phillips was un-

familiar with the procedure; on the contrary he displayed

considerable expertise in that field. He persona!ly took

his complaints to the Mine Safety Committee and he

testified that he knew about this grievance procedure.

(See addendum to Gov. Br. pp. 1la-3a.)

32a

Ill.

The majority concludes that the “bare words of the

Safety Act . . . would be completely ineffective” unless

“implemented by some procedure at the mine”. I think

this argument fails when examined in the light of the

true scope of section 110(b) (1) and the additional reme-

dies available to a miner who is concerned about his

safety in the mine.

A miner who is concerned about conditions in the mine

which he considers dangerous is protected by both his

collective bargaining agreement and by section 502 of

the Labor Management Relations Act, 29 U.S.C. § 143.

In this case Phillips asserted his rights under the collec-

tive bargaining agreement and lost, because the umpire

found that his discharge did not violate the agreement.

He then invoked his remedy under section 502 of the

Labor Management Relations Act, and lost again, because

the Regional Director of the NLRB held that conditions

in the mine were not “abnormally dangerous” within

the meaning of the statute. See Gateway Coal Co. v.

UMW, 94 S.Ct. 629 (1974). Thus, before invoking the

Mine Safety Act Phillips could and he did seek redress

in two other forums, one provided by his contract, the

other by statute. He was unsuccessful, not because pro-

cedures for redress were unavailable or defective, but

because the evidence failed to support his claim.

Although the majority, citing a finding by the Exam-

iner, suggests that Phillips’ discharge did violate the

collective bargaining agreement (Op. p. 15) this matter

is not relevant to the issue before us. We are not re-

viewing the decision of the umpire. The only issue be-

fore us is whether Phillips’ complaint to a fellow em-

ployee brought him within the protection of section 110

(b)(1) of the Mine Safety Act; the question is not

whether his discharge violated the collective bargaining

agreement. Section 110(b)(1) forbids an employer to

discharge a miner because he has notified the Secretary

308

or his authorized representative of any alleged violation

or danger; it is not directed at discharges for refusal

to work or discharges in violation of a collective bargain-

ing agreement.

The majority commends the Kencar Mine management

and the Union for adopting “a procedure to bridge the

gap between the miner in the pit and the Federal Bureau

of Mines, the Secretary’s representative.” The majority

then reasons that Phillips was protected against dis-

charge because his complaint to his foreman was “the

first prescribed step under the Kencar procedure to in-

voke the Mine Safety Act”. I do not understand how an

“authorized representative” of the Secretary can be cre-

ated, and the scope of the statuie expanded, by an agree-

ment between the company and the Union. Assuming

that the hiatus perceived by the majority exists—an as-

sumption I think unwarranted, given <2ction 502 of the

Labor Management Relations Act—the gap can be closed

only by act of Congress. The statute cannot be amended

by a collective bargaining agreement.

Iv.

The decision of the Board of Mine Operations Appeals

rested on two independent grounds. First, the Board

found there was no substantial evidence to support the

finding of the Tria] Examiner that Phillips was dis-

charged because of his safety complaints and safety ac-

tivities. After reviewing the evidence the Board found,

contrary to the Examiner’s conclusion, that the reason for

the discharge was the refusal of Phillips to obey the direct

order of his foreman to haul coal. Second, the Board

found that even if the discharge were motivated by Phil-

lips’ safety complaints to the foreman and the Mine

Safety Committee, as a matter of law this would not

bring him within the scope of section 110/b) (1).

Holding that the Board’s second independent ground

was wrong, the majority is nevertheless bound by the

34a

Act to affirm the decision of the Board if the Board’s

conclusions of fact are supported by substantial evidence.

Section 106(b) of the Act, 30 U.S.C. § 816( b), relating

to judicial review of any order or decision issued by the

Secretary or the Panel, provides: “The findings of the

Secretary or the Panel, if supported by substantial evi-

dence on the record considered as a whole, shall be con-

clusive.”

Instead of examining the Board’s findings to determine

whether they are supported by substantial evidence, the

majority selectively credits testimony, and proceeds to “re-

ject the Board’s suggestion that Phillips was discharged

only for a simple refusal to work.” The majority then

finds as a fact “that the effective cause of Phillips’: dis-

charge was his complaint about hazardous working con-

ditions in the mine”; and the majority orders Phillips to

be reinstated with back pay, costs, expenses and attor-

ney’s fees.

In my judgment the majority opinion violates the

standard of judicial review commanded by section 106

(b). There was conflicting testimony in the record, but

considering all the evidence introduced at the hearing, I

cannot say there was no substantial evidence to support

the Board’s conclusion. Although my colleagues have

drawn a different conclusion from the same facts this

does not authorize them to upset the Board’s findings and

substitute their own. See Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951).

The impact of this decision on mine operations will be

substantial. Even more important and significant, in my

opinion. is the determination of my colleagues to over-

ride a clear and unambiguous Statutory provision and

substitute the broader protection which they believe

miners ought to have as a matter of policy. This is an

intrusion into the legislative domain in which I cannot

join.

I respecifuiiy dissent.

37a

APPENDIX B

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

INTERIOR BOARD OF MINE OPERATIONS APPEALS

4015 wILsoN BOULEVARD

ARLINGTON, VIRGINIA 22205

Fraxkunx PHiLurrs

Kentucky Carnon Corporation

IBMA 72-28 Decided January 30, 1973

Appeal from a decision of William Fauver, Adminis-

trative Law Judge (formerly Departmental Hearing Ex-

aminer), reinstating the employment of a coal miner pur-

suant to section 110(b) of the Federal Coal Mine Health

and Safety Act of 1969.

Reversed.

Federal Coal Mine Health and Safety Act of 1969: Entitle-

ment of Miners: Discharge: Burden of Proof

Proof by a discharged miner that he has notified only

a member of the mine safety committee of an alleged

violation or danger without =howing a notice or insti-

gation thereof to the Secretary or his authorized rep-

resentative fails to sustain the burden of proving a

violation of section 110(b)(1) (A) of the Act.

Federal Coal Mine Health and Safety Act of 1969: Adimin-

istrative Procedure: Generally

The Board may be persuaded by the findings of fact

in an-arbitration proceeding where they are made a

part of the record, but the Board is not bound or con-

trolled thereby.

Apreanaxces: R. G. Kelly, Exquire, Charles Q. Gage,

Exquire, of Jackson, Kelly, Holt, & O'Farrell, attorneys

CBr. er

38a

for Kentucky Carbon Corporation; Joseph W. Justice,

Esquire, of Burke & Justice, attorneys for Franklin Phil-

lips; and Guy Farmer, Esquire, attorney for Bituminous

Coal Operators’ Association, amicus curiae.

OpiINion BY THE BoarpD

Procedural Background

On May 28, 1971, Franklin Phillips (applicant) filed a

Petition for Reinstatement to Employment as a Result of

Discriminatory Discharge under section 110(b)(1)(A) of

the Federal Coal Mine Health and Safety Act of 1969 (the

Act) ' with the Office of Hearings and Appeals, Arlington,

Virginia. On June 22, 1971, Kentucky Carbon Corpora-

tion (Kentucky Carbon) filed a Motion to Dismiss and

Answer, and on October 15, 1971, filed a Motion for Sum-

mary Decision. The Administrative Law Judge, on Octo-

ber 15, 1971, ordered Phillips to amend or to show cause

why his application should not be dismissed, to which

Phillips responded on November 12, 1971. On November

18, 1971, Kentucky Carbon filed its Statement in Response

to Applicant-Petitioner’s Response to Order to Show

Cause. The Judge denied Kentucky Carbon’s Motion to

Dismiss and Motion for Summary Decision on November

22, 1971. A hearing was held December 10, 1971, and a

decision was issued in favor of Phillips on June 8, 1972.

Kentucky Carbon filed a Notice of Appeal with this Board

on June 28, 1972, and Bituminous Coal Operators’ Asso-

ciation (BCOA) filed a petition on July 18, 1972, to parti-

cipate as amicus curiae, which was granted by the Board.

Timely briefs were filed by the parties, and oral argument

before the Board was held August 24, 1972.

Factual Background

Franklin Phillips was a regular employee of Kentucky

Carbon Corporation at its Ken-Car No. 1 Mine at Phelps,

*P. L. 91-173, 83 Stat. 742-804, 30 U.S.C. $§ 801-960 (1970).

39a

Kentucky. On April 28, 1971, he reported for work on the

second shift (4 p.m.) to perform duties as a shuttle car op-

erator? in the No. 1 section. Phillips had hauled several

loads of coal when it became apparent to him that water

sprays on the loading machine were operating inadequately.

The loading machine operator, Mrmil Justice, also recog-

nized that a problem existed and requested Phillips to get

some tools with which the malfunctioning water sprays

could be disassembled. The loading machine, which trans-

ferred coal from the working faces to the shuttle ears, was

provided with water sprays to retard coal dust from ‘‘boil-

ing up’’ as the coal hit the bottom of the shuttle cars.

(Tr. 13) Ermil Justice and Phillips removed several

water spray heads and were in the process of cleaning

them when the section foreman, H. E. Edwards, appeared

on the scene. Phillips and the foreman exchanged words

relating to the temporary work stoppage and tempers grew

short. Edwards ended the conversation by firing Phillips,

who then left the mine.

There is some evidence in the record that Edwards had

at times displayed to some of the miners a short temper

and an intolerance of safety complaints related to the

mine’s operation. It also appears that Phillips had made

various complaints to Edwards and to a union mine safety

committee member prior to hix discharge.

Phillips did not seck any immediate redress of the in-

cident and two days afterward was given a discharge slip—

2Shuttle Car Operator: ‘‘In bituminous coal mining, one who

drives an electrically powered truck (shuttle car) in a coal mine

to transport coal from the excavation point to the conveyor belt.”’

A Dictionary of Mining, Mineral and Related Terme at 1007 (P.

Thrush ed, 1968).

3 References to pages of the transcript of hearing will be abbre-

viated as ‘* (Tr. ——)”’ in this decision. References to exhibits

which were accepted as part of the record will be noted as (*‘ Ex.

—).’’

40a

“‘For interfering with the operation of the mine and abridg-

ing the rights of management. Also refusing to obey a

direct and proper order” (Ex. 1). On May 6, 1971, the

United Mine Workers of America (UMWA), on behalf of

Phillips, filed a grievance under the applicable arbitration

provisions of the National Bituminous Coal Wage Agree-

ment of 1968, alleging that Phillips had been unjustly dis-

charged. The final decision by the umpire on this griev-

ance, dated June 21, 1971, was in favor of management

(Kentucky Carbon), and was based in part on Phillips’ own

admission (Ex. 4(a), p. 65) 4: “In this ease the grievant

(Franklin Phillips) admits that he refused to work and

obey a direct order of management to perform his duties

°°. (Ex. 4(e), p. 11).

Contentions of the Parties

Kentucky Carbon contends that Phillips failed to prove

by a preponderance of the evidence that he was discharged

because he had notified the Secreta ry or his authorized rep-

resentative of any alleged violation or danger, but in fact

was discharged for another reason, i.e., that he refused to

work. The strict interpretation of the term **Seeretary”’

as defined in section 2(a) of the Act is urged,

Phillips argues that his complaint to a member of the

mine safety committee or to the union safety coordinator

of an alleged safety violation is equivalent to a complaint

to the Secretary under section 110(b}(1)(A) of the Act

and contends that the remedial purposes of the Act require

that section 110( b)(1)(A) be given a broad and liberal

interpretation. In sum, his ease is that he was discrim.

inatorily discharged in violation of section 110 of the Act

for having made a report to a mine safety committeeman

*Q. 22. “Did you hear the section foreman tell you to get back

on your shuttle car and haul coal?

A. “Ile told me to haul, but T said I wouldn’t haul in that dust

—it was too dusty.”’

4la

and that the Judge’s decision and findings of fact are sup-

ported by substantial e. icence.

The points argued by BCOA as amicus curiae are: first,

that Phillips made no report to the Secretary or his author-

ized representative and that the Judge erred by interpret-

ing section 110(b)(1)(A) to mean that an employee’s ¢om-

plaint on a safety matter to a member of the local union

safety committee is equivalent to making a safety com-

plaint to the Secretary or his authorized representative ;

and second, that the Judge erred in refusing te find the

umpire’s ruling controlling where, in an arbitration pro-

ceeding instigated by Phillips, his discharge was found to

be justified.

Issues Presented on Appeal

Did Phillips prove by a preponderance of the evidence

that he was discharged for the reason that he had notified

the Seeretary or his authorized representative of any al-

leged violation or danger so as to bring his discharge uader

the protective provisions of section 110(b)(1)(A) of the

Act?

Is a determination miade by an umpire pursuant to a

colleciive bargaining agreement on the matter of a miner’s

discharge binding upon an Administrative Law Judge or

this Board in a proceeding brought under section 110(b)

of the Act?

It is undisputed that Franklin Phillips was discharged

by Kentucky Carbon on April 28, 1971. The Administra-

tive Law Judge made the following Findings of Fact with

respect to the reason for the discharge:

33. I find from the evidence as a whole that the

foreman’s discharge of the Applicant was arbitrary

Getrews ss ---

42a

and discriminatory against the Applicant because of

his activities in complaining to the foreman and the

Mine Safety Committee about safety and health con-

ditious and because of the Applicant’s safety activi-

ties in assisting other miners in corrective maintenance

to prevent exposure to excessive and hazardous coal

dust.

34. I find further that the motivating factor in the

discharge of the Applicant was an intent to penalize

him for such safety complaints and safety activities,

and to set an example for othey employees not to

complain of safety and health conditions or interrupt

production by making necessary safety adjustments

and repairs.

We find no substantial evidence in the record to support

the above two findings. We find instead that the prepon-

derance of the evidence manifested by the testimony of

Phillips before the Administrative Law Judge (Tr. 14-15)

and before the umpire (ix, 4(a), p. 65). Ermil Justice

(Tr. 31), and H. KE. Edwards, the foreman (Tr. 110), and

Exhibit 1 establishes the reason for the discharge to be

the refusal of Phillips to obey the dircet order of the fore-

man to haul coal. Although the foreman’s action may be

looked upon as harsh or extreme, it is not within the

province of the Judge or this Board to find that he had

no authority to discharge any miner who disobeyed an

order to work or otherwise acted in an unreasonable man-

ner. We note that the umpire in the arbitration proceed-

ing concluded, ‘‘As unpleasant as it is, the umpire must

find that the management had the right under such circeum-

stances to discharge the employee’? (emphasis added) (Ex.

4(c), p. 11). We are coreerned here only with the ques-

tion of whether the discharge was in violation of section

110(b)(1)(A) of the Act. The principal objective of that

section is to preserve the integrity of the Act and not to

provide a new forum for the litigation of management and

labor grievances.

43a

Included among the Administrative Law Judge’s Con-

clusions of Law were the following:

3. An employer’s discrimination against a coal

miner because the miner has notified his Mine Safety

Committee (or one of its members of an alleged safety

violation or danger at the mine is a violation of See-

tion 110(b)(1)(A) of the Act.

4. Respondent violated Section 110(b)(1)(A) of

the Act by discharging the Applicant on April 28, 1971,

because he had notified his Mine Safety Committee of

alleged safety violations and dangers in the No. 1 See-

tion of Respondent’s mine.

We hold these two Conclusions of Law to be an erroneous

construction of the Act for reasons set forth herein.

In this appeal, Phillips contents that hix frequent safety

complaints to foreman Edwards and occasionally to mem-

bers of the mine safety committee motivated his discharge.

Assuming arguendo, that the foreman did know of such

reports to a safety committecman and was motivated by

them, this alone would not make a prima facie case under

section 110 of the Act. The scope of the protection afforded

by section 110(b)(1)(A) is narrow. See Munsey v. Smitty

Baker Coal Co. Inc., 1 ABMA 144 at 154, 79 LD. 501, 505

(1972), wherein we steted:

* * * However, the plain language of clause (A) of

subsection 110()(1) limits the protection to reporting

alleged violations or dangers to the Seeretary or his

authorized representative. If does not protect the

making of general safety protests or the reporting of

alleged violations or dangers to fellow employers, su-

pervisors, or the management of the coal mine. * * *

(emphasis added)

We find nothing in ‘he record to support a finding or an

inference that Phillips either reported or intended to initi-

ate a reporting process to the Seeretary or his authorized

representative, or that management in discharging him was

44a

motivated by such belief. We hold, therefore, that Phillips

failed to prove entitlement to reinstatement or back wages

pursuant to section 110(b) of the Act and that the contrary

ruling of the Judge must be reversed,

BCOA, as amicus curiae, contends that the Judge erred

by refusing to find as controlling the umpire’s determina-

tion that Phillips was discharged for refusing to work. In

support of its contention, BCOA submits that Phillips had

contracted to arbitrate his grievance pursuant to the union

Wage agreement, supra, and points out that the arbitrator’s

ruling was subsequently appealed to the Regional Director

of the National Labor Relations Board (NLRB), who re-

fused to assert jurisdiction (ostensibly on the ground that

the arbitration proceeding was determinative of the issue),

BCOAN submits that there are sound policy considerations

why the Board should follow the lead of the NLRB and

defer to the umpire’s decision. We cannot agree with this

View.

In reversing the Judge’s decision in this case, it so hap-

pens that we have reached the same result as that of the

umpire, but we did so by virtue of the reeord before us and

not because we were controlled or bound by the umpire’s

findings and determination, He made his decision pursu-

ant to the arbitration provisions of the union wage agree-

ment and the record presented to him. He expressly stated

in his decision that he had ‘‘no authority to interpret or

enforce the regulations of the Federal [Coal Mine] Health

and Safety Act’’ and declined to rule on the question as to

whether the discharge violated any rights granted to the

applicant under that Act (Ex. 4(c), p. 10). We may very

well consider and weigh the findings of fact of an arbitrator

for whatever they may be worth as persuasive in reaching

our decision provided such findings are made a part of the

record before us, but we are not bound by his decision. Our

duty, unlike his, is to rule only on the question of whether

45a

the discharge violates the provisions of section 110(b) of

the Act.

As delegates of the Secretary, we are obliged by the

mandate of section 110(b)(2) of the Act to: (1) see that

an investigation is made of alleged violations of section

110(b)(1); (2) provide an opportunity for a public hear-

ing; and (8) make a decision, independent of other admin-

istrative forums, determining the rights of the parties un-

der the provisions of the Act. Should we defer to an um-

pire’s decision made under the National Labor Relations

Act of 1947 (NLRA), or an arbitration agreement, as con-

trolling upon us, we would be abdicating the statutory obli-

gations assigned to the Seeretary by the Congress. These

two public laws (NLRA and the Act) are inherently differ-

ent, designed to accomplish different objectives, and have

been assigned by Congress to different agencies for admin-

istration and enforcement. In NLRB vy. Pacific Intermoun-

tain Express Co., 228 F.2d 170, 176 (8th Cir. 1955) the

Court said:

* * * Each fact-finding agency is entitled to make

its own decision upon the evidence before it, and the

fact that another tribunal has reached a different con-

clusion upon the same issue arising out of the same

transaction does not invalidate any decision which has

proper evidentiary support. * * *

BCOA also expresses concern that our Departmental de-

cisions may have the effect of undermining the grievance

and arbitration procedures promulgated under the union

wage agreement. This is neither the intent of the Act nor

of the Board. As we stated in Munsey, supra, 1 [BMA at

158 and 79 I.D. 507:

* * * Section 110 of the Act may not he broadened

to provide relief for all unfair or unjust labor prac-

tices, and may not be used as a vehicle for resolving

grievances which are subject to arbitration under a

labor contract or disputes under general labor law.

rer st mets

46a

Although ihe Board may be influenced by the persuasive-

ness of an umpire’s findings in an arbitration proceeding

if, as stated above, it is incorporated into the record of a

case before us, we hold that this Board is not bound or con-

trolled thereby in determining the rights of the parties un-

der the Act. We reverse the Administrative Law Judge

on the merits of this case, but we find no error committed

by him in failing to treat the umpire’s decision as binding

or controlling upon him,

OrpDER

Wuererore, pursuant to the authority delegated to the

Board by the Secretary of the Interior (43 CFR 4.1(4)),

It Is Heresy Orverep that the Order of the Administrative

law Judge, issued June 8, 1972, reinstating applicant,

Franklin Phillips, to employment and awarding other dam-

ages, Is Reversev and the application Is Dentep.

Boarp or Mixe Overations Apress

By: /s/ C. E. Rocers, Jr.

C. E. Rogers, Jr., Chairman

/s/ Daviw Doaxe

David Doane, Member

/s/ Howarp J. ScHue_tenserc, Jr.

Howard J. Schellenberg, Jr.

Aliernate Member

47a

Distribution:

Cuarves Q. Gace, Esquine

Jackson, Kelly, Holt & O’Farrell

1601 Kanawha Valley Building

Charleston, West Virginia 25322

Counsel for Kentucky Carbon Corporation

Joseru W, Justice, Esquire

Burke & Justice

P. G. Box 50

Pikeville, Kentucky 41501

Counsel for Franklin Phillips

Lyx» D. Poor, Esquire

Patterson, Belknap, Farmer & Shibley

850 Bender Building

1120 Connecticut Avenue, N.W.

Washington, D. C. 20036

Counsel for Bituminous Coal Operators’ Association

J. Pup Sairu, Esquire

Assistant Solicitor

Office of the Solicitor

U.S. Department of the Interior

Washington, D. C. 20240

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.