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[DOCID: f:ct9724x.wais]
F & E ERECTION COMPANY
April 25, 2000
CENT 97-24-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 25, 2000
BRYCE DOLAN, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. CENT 97-24-DM
: MSHA Case No. SC MD 96-05
F & E ERECTION COMPANY, :
Respondent : Mine ID No. 41-00230-B96
: Bayer Alumina Plant
DECISION ON REMAND
Before: Judge Feldman
The captioned matter is before me based on a discrimination
complaint filed on December 27, 1996, pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977 (the
Mine Act), 30 U.S.C. � 815(c)(3), by the complainant, Bryce
Dolan, against the respondent, F&E Erection Company (F&E). The
initial decision granted Dolan's discrimination complaint based
on a finding that Dolan engaged in a work refusal protected by
section 105(c) of the Mine Act. 20 FMSHRC 591 (June 1998) (ALJ).
On February 29, 2000, the Commission, although finding that
"substantial evidence supports the judge's conclusion that F&E
failed to address Dolan's concerns in a way that should have
alleviated his fears," vacated the initial finding of
discrimination and remanded this matter for further consideration
concerning whether Dolan's protected work refusal constituted a
constructive discharge. 22 FMSHRC 171, 177-78. Relying on
Simpson v. FMSHRC, 842 F.2d 453, 461-63 (D.C. Cir. 1988), the
Commission concluded "the key inquiry in a constructive discharge
case is whether intolerable conditions existed such that a
reasonable miner would have felt compelled to resign." Id. at
176. Thus, the Commission remanded this matter for me to
determine whether Dolan's work refusal constituted a constructive
discharge. For the reasons discussed below, I find that F&E's
inadequate response to Dolan's reasonable, good faith safety
complaints constituted a discriminatory constructive discharge.
In remanding this matter, the Commission noted that I stated
at the hearing that I considered this a work refusal case, rather
than a constructive discharge case, because F&E's actions were
not calculated to induce Dolan's resignation. 22 FMSHRC at 177-
78. I was referring to a retaliatory constructive discharge. A
retaliatory constructive discharge occurs when an operator, who
is prohibited by section 105(c) of the Act from directly firing a
miner who has engaged in protected activity, seeks to effectuate
the miner's termination indirectly by creating intolerable
working conditions.[1]
Since termination of the miner must be accomplished
indirectly, invariably a retaliatory constructive discharge
involves working conditions that are unrelated to safety hazards
because exposing the miner to hazardous conditions would give
rise directly to section 105(c) protection. Secretary of Labor
o/b/o Bowling v. Mountain Top Trucking Company, 21 FMSHRC 265,
275-81 (March 1999) pet. for review docketed, No. 99-4278 (6th
Cir. Oct. 22, 1999) (truck drivers who quit after they had been
called back to work after a discriminatory discharge were the
victims of a retaliatory constructive discharge because they were
subjected to forced idleness as well as to other forms of
harassment). However, the anti-discrimination provisions of the
Mine Act have been interpreted to prevent employers from
accomplishing indirectly what is directly prohibited by law. Id.
at 272, citing Simpson 842 F.2d at 461; Secretary of Labor o/b/o
Nantz v. Nally & Hamilton Enters., Inc., 16 FMSHRC 2208, 2210-13
(November 1994). The evidence does not reflect, and Dolan does
not contend, that Dolan's working conditions were created by F&E
in retaliation for Dolan's protected activity in order to
encourage him to resign.
The facts in this case are set forth in the initial decision
as well as in the Commission's remand decision. Briefly stated,
Dolan was an iron worker employed by F&E, a construction company
that performed work at an alumina smelter in Point Comfort, Texas
operated by the Aluminum Company of America (Alcoa). From late
1994 until March 1996, to ensure a good weld on stiffeners, Dolan
and five to six other crew members were removing paint from the
angle irons of trusses in the R35 tank farm before affixing the
stiffeners. Despite the fact that Jones & Neuse, Inc. (J&N),
F&E's environmental and engineering consultant, had recommended
"[r]emoval and containment of abated lead will be accomplished by
using needle guns, roto penes and grinders attached to high
efficiency vacuums," Dolan's crew removed the paint by burning it
off with a cutting torch. 20 FMSHRC at 594. During this period
Dolan's crew was not provided with any personal respiratory
equipment or protective clothing.
In March 1996, Dolan learned that Alcoa employees performing
similar work in the R35 tank farm were furnished with protective
clothing and respirators, and, that the entire R35 tank farm was
supposed to be treated as a lead abatement area. Dolan
complained to several F&E officials, including general foreman
Steve Whitehead, about the hazards of removing lead based paint
without personal protective gear.
**FOOTNOTES**
[1] A "retaliatory discharge" is "a discharge that is made
in retaliation for the employee's conduct (such as reporting
unlawful activity by the employer to the government) . . . ."
Black's Law Dictionary 476 (7th ed. 1999).
In response to Dolan's complaint, F&E contracted with Health
and Safety Management, Inc. (HSM) to perform air sample
monitoring on crew members who, in the meantime, had been given
Tyvek suits[2] and half-face respirators. Based on HSM's air
sampling results, HSM recommended that the crew member using the
cutting torch wear a full-face respirator, while the remaining
crew could continue to wear half-face respirators. F&E
implemented HSM's recommendation.
On or about March 25, 1996, Dolan complained that the entire
crew should wear full-face respirators due to their proximity to
the person using the cutting torch. Dolan also complained that
the Tyvek suits were inadequate to prevent lead contamination
because they were easily torn and because sparks from the cutting
torch burned holes in the suits. In response, F&E provided a
large quantity of Tyvek suits so that the crew could wear double
layers and replace them when needed. In addition, F&E required
the crew to vacuum their clothing with high efficiency vacuums
before leaving the work area.
Dolan continued to complain about the inadequacy of the
half-face respirators and Tyvek suits. On April 16, 1996, F&E
held a meeting to address Dolan's concerns. At the meeting,
Whitehead stated F&E would continue to use half-face respirators
and Tyvek suits, and he offered to transfer any employee who
wanted to perform non-lead based work. No employees accepted
Whitehead's offer of reassignment. At the conclusion of the
April 16, 1996, meeting, Dolan quit his job because he believed
that the personal protective equipment provided by F&E was
inadequate to prevent lead exposure to himself and his family.
As noted above, the Commission, in its remand decision, has
determined that:
There is no doubt that Dolan's initial fears in March
1996, at a time when F&E had provided no personal
protective gear to Dolan's crew, were reasonable. As
the judge noted, F&E conceded as much at the hearing.
20 FMSHRC at 599-600. Nor is it disputed that Dolan
made protected safety complaints to F&E based on his
fears. The question is whether a reasonable miner in
Dolan's position would have had his fears quelled by
the measures taken by F&E in response to Dolan's
initial complaint. We find that substantial evidence
supports the judge's conclusion that F&E failed to
address Dolan's concerns in a way that should have
alleviated his fears.
22 FMSHRC at 179. The Commission, having concluded that Dolan's
work refusal was protected, has directed that I determine, using
an objective standard, whether the working conditions at the time
of Dolan's April 16, 1996, resignation constituted a constructive
discharge. On April 16, 1996, F&E already had responded to
Dolan's complaints by (1) performing air sampling; (2) providing
a full-face respirator to the cutting torch operator; (3)
providing a half-face respirator to the remaining crew; (4)
initially providing Tyvek suits; (5) subsequently providing
greater quantities of Tyvek suits; (6) providing high efficiency
vacuums; and (7) offering Dolan a temporary reassignment to non-
lead abatement duties.
Despite F&E's responses to Dolan, as determined by the
Commission, the evidence supports the conclusion that the
protective measures taken were inadequate to alleviate Dolan's
fears. Id. Robert Miller, an industrial hygienist who testified
on behalf of Dolan, opined that respirators leak due to poor fit
or perspiration. Miller also questioned whether half-face
respirators provided adequate protection for non-torch cutting
crew members. Dolan's testimony that Tyvek suits were
ineffective because of they were not burn resistant, and because
they tore, was supported by the testimony of crew members Kenneth
Tam and Troy Stewart. In addition, vacuuming personnel before
they left the work area did not prevent contamination to
underlying clothing.
Burning lead paint is the fastest, cheapest, and, from a
safety standpoint, the least desirable method of lead removal.
20 FMSHRC 602. Although OSHA does not strictly prohibit burning
lead paint in inaccessible areas, OSHA has determined that
burning as a principal method of removing lead-based paint is not
acceptable. Id. Burning as a method of lead abatement is
generally prohibited by Alcoa. Id. Finally, F&E's burning
method was contrary to the advice of J&N, its environmental and
engineering consultant, that lead paint should be removed by
chipping and grinding. Id. at 594.
Although Dolan did not specifically complain about the
burning method of lead abatement, Dolan's concerns were caused by
F&E's practice of burning lead paint with a cutting torch rather
chipping it with a needle gun and grinder. It was F&E's decision
to burn, rather than chip, that provides the basis for Dolan's
concerns regarding exposure to respirable fumes, as well as
exposure to lead as a consequence of burn holes in Tyvek suits.
F&E must bear the burden of departing from generally accepted
methods of lead abatement.
In determining whether a constructive discharge has been
shown despite remedial measures taken by an operator in response
to a miner's complaints, it is helpful to examine the D.C.
Circuit Court's decision and its progeny in Gilbert v. FMSHRC 866
F.2d 1433, 1439 (D.C. Cir. 1989); John A. Gilbert v. Sandy Fork
Mining Company, Inc., 12 FMSHRC 177 (February 1990) (Gilbert I);
John A. Gilbert v. Sandy Fork Mining Company, Inc., 12 FMSHRC
1203 (June 1990) (Gilbert II). Gilbert refused to perform work
because of his concern regarding hazardous roof conditions. In
Gilbert, the Commission concluded there "was no question . . .
that mine management was aware of the roof problems . . . and was
taking steps to address the problems." Gilbert I, 12 FMSHRC
at 180. However, the Commission determined that Gilbert's safety
concerns were not addressed in a manner sufficient to reasonably
quell his fears. Id. at 181. In view of the fact that Gilbert
"did not act precipitately and . . . he entertained a good faith,
reasonable belief in a hazard, his departure from the mine
constituted a discriminatory constructive discharge in violation
of section 105(c)(1) of the Mine Act." Gilbert II, 12 FMSHRC
at 1205. (emphasis added); Gilbert I, 12 FMSHRC 181-82.
Turning to the facts of this case, the Commission has
determined Dolan had a good faith, reasonable belief that a
hazard existed, and it is evident that Dolan did not act
precipitately. Dolan initially raised safety related complaints
in March 1996 and he waited a reasonable period for F&E to
respond. Dolan did not resign until April 16, 1996, when it
became clear that F&E would not alleviate his continuing concerns
about his safety. Thus, consistent with Gilbert, the evidence
reflects that Dolan's resignation on April 16, 1996, constituted
a discriminatory constructive discharge.
In reaching the conclusion that Dolan was constructively
discharged, I note that whether or not full and half-face
respirators and Tyvek suits were ineffective goes beyond the
scope of this proceeding. The determining factors in concluding
Dolan was compelled to resign are the reasonableness of Dolan's
continuing fears, and F&E's failure to adequately quell Dolan's
fears, not the actual degree of hazard presented by F&E's lead
abatement procedures. Secretary of Labor on behalf of Dunmire v.
Northern Coal Co., 4 FMSHRC 126, 133 (February 1982); Metric
Constructors, Inc. 6 FMSHRC 226, 230 (February 1984); Secretary
of Labor on behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC
1529, 1534 (September 1983); Gilbert v. FMSHRC, supra; Secretary
of Labor o/b/o Bush v. Union Carbide Corp., 5 FMSHRC 993, 997
(June 1983); Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135
(February 1988), aff'`d mem., 866 F.2d 431 (6th Cir. 1989). In
fact, a miner refusing work under a good faith belief that a
hazard exists is not required to prove that the working
conditions were, in fact, hazardous. See Secretary of Labor
o/b/o Robinette v. United Castle Coal Co., 3 FMSHRC 803, 810-12
(April 1981).[3] It is F&E's failure to remedy Dolan's
reasonable, good faith safety concerns that provides the
"aggravating circumstances" necessary to support a finding of a
constructive discharge. Clark v. Marsh, 665 F.2d 1168, 1173
(D.C. Cir. 1981). Thus, as the Court concluded in Simpson,
"[t]he resolution of [a discrimination] case . . . will turn on
whether [the underlying] work refusal was protected . . . . 842
F.2d at 463.
In the final analysis, the Mine Act "is a remedial and
safety statute, with its primary concern being the preservation
of human life . . ." Freeman Coal Mining Co. V. Interior Bd. Of
Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir. 1974)
(citations omitted); Peabody Coal Co., 7 FMSHRC 1357 (September
1985); Jim Walter Resources, 7 FMSHRC 1348 (September 1985),
aff'd sub nom. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C.
Cir. 1987). Under the Mine Act, a miner who reasonably believes
he is exposed to a continuing hazard is not required to continue
working under such circumstances. If the operator fails to
address the miner's good faith, reasonable safety concerns, the
miner is left with an "intolerable" choice - - to continue to
work indefinitely in the face of a perceived hazard, or to quit
his job.[4] It is the operator's failure to respond adequately
to the perceived hazard that is the prohibited adverse action
that compels the miner's resignation and provides the basis for a
"discriminatory constructive discharge."[5] Gilbert II, 12
FMSHRC at 1205; Simpson, 842 F.2d at 463.
Finally, the Commission also directed me to examine anew the
impact of F&E's offer to reassign Dolan and other crew members to
non-lead abatement jobs on the issue of constructive discharge.
Whitehead testified that during the April 16, 1996, meeting he
offered to transfer any employee who was not satisfied doing lead
abatement work to another part of the plant. Whitehead could not
explain why no one accepted his offer given the inherent dangers
associated with excessive lead exposure. Dolan and Tam testified
that it was not uncommon for F&E to transfer employees to non-
lead work, particulary during periods immediately preceding blood
test monitoring. However, employees were always returned to lead
abatement tasks since most of the tanks, with the exception of
newer units, contained lead based paint.
As noted in the initial decision, the intent of the Mine Act
is to minimize the exposure of all miners to hazards not just
those miners that speak out about hazards. 20 FMSHRC at 605.
Thus, offering to reassign a complaining miner while others
continue to be exposed to the subject hazard is not an
appropriate mitigating factor. Moreover, given the nature of
F&E's contract activities concerning maintenance of steel tanks
containing lead paint, I credit the testimony of Dolan and Tam
that any reassignment would have been temporary in nature. As
the Commission noted in its remand, a miner's refusal of a
temporary reassignment as a solution to his complaints concerning
the continuing existence of hazardous conditions is inextricably
connected to the underlying complaints and constitutes protected
activity. 22 FMSHRC at 180 citing Nantz, 16 FMSHRC at 2214.
Accordingly, F&E's offer of reassignment does not alter the fact
that its inadequate response to Dolan's legitimate concerns
provided the aggravating factors necessary to support a
constructive discharge.
ORDER
In view of the above, Bryce Dolan's April 16, 1996, work
refusal and resignation were protected by the provisions of
section 105(c) of the Mine Act and constituted a constructive
discharge. Consequently, the grant of Dolan's discrimination
complaint and the August 5, 1998, Supplemental Decision on Relief,
20 FMSHRC 847 (August 1998) (ALJ) ARE REINSTATED.[6]
Jerold Feldman
Administrative Law Judge
Distribution:
Errol John Dietze, Esq., Dietze & Reese, 108 N. Esplande, P.O.
Box 841, Cuero, TX 77954 (Certified Mail)
James S. Cheslock, Esq., Cheslock, Deely & Rapp, P.C., 405 N. St.
Mary's Street, Suite 600, San Antonio, TX 78205 (Certified Mail)
\mh
**FOOTNOTES**
[2] Tyvek suits are thin, disposable coveralls made of spun
olefin. 20 FMSHRC at 597.
[3] The Commission has "rejected a requirement that iners
who have refused to work must objectively prove that the hazard
complained of existed . . . [and has] adopted a `simple requirement
that the miner's honest perception be a reasonable one under the
circumstances.'" Secretary of Labor on behalf of Pratt v. River
Hurricane Coal Co., 5 FMSHRC 1529, 1532 (September 1983) quoting
Haro v. Magma Copper Co.,4 FMSHRC 1935, 1943-44 (November 1982),
and Robinette, 3 FMSHRC at 812.
[4] Unlike the Mine Act, most other anti-discrimination
statutes, such as Title VII of the Civil Rights Act of 1964, do
not exclusively concern safety and health. Consequently, there
is a general reluctance to predicate a constructive discharge
on the fact of discrimination, absent aggravating circumstances,
because public policy requires discrimination victims to mitigate
damages by remaining on the job while attacking unlawful
discrimination within the context of existing employment
relationships. Clark v. Marsh, 665 F.2d at 1173. Thus, under most
anti-discrimination statutes, absent aggravating circumstances,
discrimination alone is "an insufficient predicate for a finding
of a constructive discharge." Id. For example, a failure to
receive equal pay for equal work, and a denial of a promotion
because of an employee's ethnicity, do not provide a basis for
a constructive discharge under Title VII. Id. (citations
omitted). However, section 105(c) does not require a miner, whose
work refusal is entitled to statutory protection because he
reasonably believes that he is exposed to hazardous conditions,
to remain on the job for the purpose of mitigating damages.
[5] Obviously, minor or technical violations of the Mine Act,
or conditions that are not potentially dangerous to health and
safety, ordinarily will not support a finding of a constructive
discharge. Simpson, 842 F.2d at 463.
[6] The Commission previously has directed for review sua
sponte the mitigation of damages issue that is relevant for
determining the proper period for relief.