<DOC>
[DOCID: f:l94-704d.wais]
CONSOLIDATION COAL COMPANY
March 31, 1997
LAKE 94-704-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 31, 1997
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-704-D
ON BEHALF OF KENNETH H. :
HANNAH, PHILIP J. PAYNE :
AND FLOYD MEZO, : MSHA Case No. VINC CD 94-07
Complainants : Rend Lake Mine
:
v. : I.D. No. 11-00601
:
CONSOLIDATION COAL COMPANY, :
Respondent :
DECISION
Appearances: Ruben R. Chapa, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Chicago, Illinois, for the
Complainants;
Elizabeth Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent;
David J. Hardy, Esq., Jackson and Kelly,
Charleston, West Virginia, for the Respondent.
Before: Judge Melick
This case is before me upon remand by the Commission on
December 10, 1997, for the specific and limited purpose of the
"computation of a backpay award and assessment of a civil
penalty" against the Consolidation Coal Company (Consol).[1]
Following remand, the Secretary, by proposed Amended Complaint,
requested a single civil penalty of $3,000 for the three
violations of Section 105(c) of the Federal Mine Safety and
Health Act of 1977, the "Act," found by the Commission.[2]
Consol has objected to the proposed amendment. I find that, in
any event, there is no need for any amendment of the complaint in
order to properly dispose of the issues on remand.
First, I find that Consol waived any objection to the
Secretary's non-compliance with Commission Rule 44(a) by its
failure to have filed a timely objection at the initial
hearings.[3] Since the Commission has specifically directed the
undersigned to assess a civil penalty, de novo, the Secretary's
motion to amend and proposed amendment is, for this additional
reason, unnecessary and the issue is accordingly moot. In
issuing its specific remand order it may be presumed that the
Commission, too, found that the Secretary's non-compliance with
Rule 44(a) had been waived by Consol.
Section 110(i) provides in part as follows:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether
the operator was negligent, the effect on the
operator's ability to continue in business, the gravity
of the violations, and the demonstrated good faith of
the person charged in attempting to achieve rapid
compliance after notification of a violation.
At oral argument held by teleconference on
February 27, 1997, the Secretary acknowledged that there is
no record evidence as to four of the six criteria.[4]
Accordingly, the penalty in this case must necessarily be
based upon the only two criteria for which there is record
evidence, i.e. whether the operator was negligent and the
gravity of the violations. In regard to the former issue,
the Secretary acknowledges that Consol's actions were not
egregious and that it was only "moderately negligent" (Oral
Argument Tr. 6,27). The Secretary nevertheless maintains
that a moderate level of negligence is appropriate because
Consol administered an excessive degree of punishment to the
three complainants who, she maintains, were "good workers"
(Oral Argument Tr. 8,13.) The Secretary also acknowledged
however that employees refusing to comply with lawful work
orders may appropriately be suspended or dismissed and,
presumably, such discipline would therefore not be
excessive.
In this case I find that the operator acted in good faith in
disciplining the Complainants for what it perceived in a
good faith and reasonable belief to have been an unprotected
work refusal. In addition no clear legal precedent governed
the precise facts and Consol's position in this regard was
upheld by the decisions of the arbitrator and administrative
law judge. At worst, Consol's decision may be considered as
an error in judgment as to whether the Complainants
continued to entertain a reasonable and good faith belief in
the claimed hazardous condition. Moreover Consol made its
decision only after it was confirmed by the State inspector
that such condition was not in violation of State law nor
hazardous and only after this information was communicated
to the Complainants.
It should also be noted in considering the operator's good
faith and reasonableness that Consol officials along with
some of the mine examiners themselves had, several weeks
before this incident, been advised by the same State
inspector that this same practice/condition was neither in
violation of State law nor hazardous. Finally, the record
shows that Consol officials, most notably Mr. Moore, were
prudent and cautious in attempting to allay the
Complainant's fears. It appears that Consol's shortcoming
was its decision not to insist that the State inspector come
to the mine site in person (even though he was available to
communicate with the Complainants by telephone).
The Secretary also maintains that the alleged hazard
underlying the work refusals appears to have been a
violation of federal regulations governing ventilation
plans. However the question of whether the alleged hazard,
which was not a violation of Illinois law, was a violation
of any federal regulation was not an issue litigated in this
case. Moreover there is no basis from the record in this
case to conclude that any federal regulation had been
violated and accordingly no inference of operator negligence
can properly be drawn as here suggested by the Secretary.
Finally, the Secretary maintains that operator negligence
may be determined from the fact that the Commission has
found that the miners exercised a reasonable good faith
belief in refusing to work in the face of what they
perceived to be hazardous conditions. While negligence may
be inferred if clear legal precedent governed the precise
factual situation presented thereby leading to the inference
that Consol officials should have known that the
disciplinary action they were taking was in violation of
Section 105(c) of the Act, such was not the case herein.
Consol's decision was clearly a close judgment call. It
cannot therefore be inferred that Consol should have known
that in disciplining the Complainants it was in violation of
Section 105(c) of the Act. Under the circumstances I find
that Consol is chargeable with but little negligence for the
violations of Section 105(c) found by the Commission.
The Secretary further argues that the gravity of the
violations was high in that these acts of discrimination
would have a chilling effect on the future exercise by
miners of their rights to refuse work and to report unsafe
or unhealthful conditions. A Commission majority in
Secretary v. Tanglewood Energy, Inc., 18 FMSHRC 1320 at
1320-7321 (August 1996), recently held that determinations
of whether a chilling effect resulted from a Section 105(c)
violation should not be presumed but rather should be made
on a case-by-case basis considering both objective and
subjective evidence. In this case the Secretary has cited
no evidence that could support such a finding. In searching
the record I, likewise, find no objective or subjective
evidence of a chilling effect. The Secretary has failed to
sustain her burden of proving her allegations of high
gravity.
Under the circumstances I find that a civil penalty of $10
is appropriate for each of the three violations found by the
Commission.
The Secretary has additionally requested an order directing
that a certain notice be posted at the subject mine and the
expungement of Complainants' "employment records of any and
all references to the discipline issued . . . including,
but not limited to, records pertaining to the arbitration
action and the
Section 105(c) action brought pursuant to the Mine Act".
These requests are clearly beyond the scope of the
Commission's specific remand order and I am therefore
without jurisdiction to rule on them. I note, however, that
both requests are for appropriate remedies customarily
granted in cases such as this and upon subsequent remand I
would grant the requests. The Complainants' employment
records should be expunged of references to discipline
issued as a result of actions found protected under the Act.
This would clearly include the decision of the arbitrator
(Operator's Exhibit No. 1) which was based upon the same
"work refusal" which is also the basis for the instant
cases. I would therefore assume the parties would reach
agreement on these issues without the need for further
Commission intervention.
ORDER
Consolidation Coal Company is directed to pay: (1) civil
penalties totaling $30 to the Secretary of Labor within 30
days of the date of this decision and (2) the agreed upon
back pay to each of the Complainants plus interest to the
date of actual payment.
Gary Melick
Administrative Law Judge
Distribution:
Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
/jf
**FOOTNOTES**
[1]: The parties had previously agreed to the amount of
backpay and interest and those amounts were incorporated in a
Partial Decision issued February 5, 1997. At oral argument held
February 27, 1997, it was disclosed that Consol had not yet
actually made these payments. Accordingly an Order addressing
continuing interest charges accompanies this decision.
[2]: The Commission found that each of the three
Complainants was suspended in violation of the Act. In
accordance with Section 110(a) of the Act a civil penalty must
therefore be assessed for each of the three violations. The
Secretary's position at oral argument, that only one violation
occurred and only one civil penalty should be assessed, is
inconsistent with this statutory mandate.
[3]: Commission Rule 44(a) provides as follows:
A discrimination complaint filed by the Secretary shall
propose a civil penalty of a specific amount for the alleged
violation of Section 105(c) of the Act, 30 U.S.C. 815(c).
The petition for assessment of penalty shall include a short
and plain statement of supporting reasons based on the
criteria for penalty assessment set forth in Section 110(i)
of the Act. 30 U.S.C. 820(i).
[4]: Namely, the operator's history of previous violations,
the appropriateness of such penalty to the size of the
business of the operator charged, the effect on the
operator's ability to continue in business and the
demonstrated good faith in
attempting to achieve rapid compliance after notification of
a violation.