<DOC>
[DOCID: f:s93-39d.wais]
JIM WALTER RESOURCES, INC.
April 16, 1997
SE 93-39-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 16, 1997
MARVIN E. CARMICHAEL, : DISCRIMINATION PROCEEDING
Complainant :
:
v. : Docket No. SE 93-39-D
:
JIM WALTER RESOURCES, INC., : BARB CD 92-08
Respondent :
: No. 7 Mine
DECISION
Appearances: Tommy E. Tucker, Esq., Bessemer, Alabama,
for Complainant;
Arnold W. Umbach, III, Esq., Bradley, Arant,
Rose & White, Birmingham, Alabama, for Respondent.
Before: Judge Hodgdon
This case is before me on a Complaint of Discrimination
brought by Marvin E. Carmichael against Jim Walter Resources,
Inc., under section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 815(c). For the reasons set forth
below, I find that the Complainant was not discriminated against
because he did not engage in activities that are protected under
the Act.
Carmichael filed a discrimination complaint with the
Secretary of Labor's Mine Safety and Health Administration (MSHA)
pursuant to section 105(c)(2) of the Act, 30 U.S.C.
� 815(c)(2),[1] on December 2, 1991. On October 8, 1992, MSHA
informed both the company and the Complainant that on the basis
of its investigation it had determined that "a violation of
Section 105(c) of the Act has not occurred." Carmichael
instituted this proceeding before the Commission, on October 23,
1992, under section 105(c)(3), 30 U.S.C. � 815(c)(3).[2]
A hearing in the case was scheduled for May 26, 1993.
However, the date was continued and, on June 1, 1993, proceedings
in the case were stayed "until such time as the complainant is
medically able to proceed." The stay was lifted on September 18,
1996, and a hearing was held on October 16, 1996, in Birmingham,
Alabama.
The parties were given the opportunity to file post-hearing
briefs in this matter. However, only the Respondent filed a
brief.
Background
On October 10, 1991, the Complainant and three fellow roof
bolters were working the evening shift in the No. 6 section.
They were informed by one of the section foremen, Mark Buzbee,
that in the time before they had to begin roof bolting, and
during the time when no bolting was required throughout the
shift, they were going to be "task trained" on operating a
scoop.[3] The miners refused to take the training.
Consequently, they were escorted out of the mine and informed
that they were being given a five day suspension with intent to
discharge for insubordination.
After meetings with mine management, as required under the
collective bargaining agreement, the discharge was converted to a
two day suspension without pay. The miners agreed not to file a
grievance seeking back pay and returned to work on Monday,
October 14. On that day, the four miners were task trained on
the scoop without incident.
Carmichael asserts that he refused to be trained to operate
the scoop for safety reasons and that his suspension was,
therefore, a violation of section 105(c) of the Act. The company
maintains that the suspension had nothing to do with safety but
was imposed for insubordination, which is not protected by the
Act.
Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act,[4] a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Const. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).
Carmichael alleges that he refused to be trained on the
scoop because he was "afraid of it." He testified:
We were told that we were going to have to run
this piece of equipment and that we were to be test
trained by Mark Buzbee, and I told them that I had
never run this piece of equipment.
I wasn't familiar with it. I was actually afraid
of that piece of equipment, to operate it. Besides
that, we were told we had to sign the task training
paper stating that you had been task trained on that.
(Tr. 9.) He further claimed that he refused to work on the scoop
"[b]ecause I didn't know how to operate it. The machine was not
operating right. It was broke." (Tr. 15.)
Trent Thrasher testified that he was the Shift Mine Foreman
in charge of the evening shift on October 10. He related that he
directed the shift foremen, Buzbee and Looney, to task train the
four roof bolters on the No. 6 section on the operation of the
scoop. He stated that sometime after the shift began he received
a call from Looney advising that the miners were refusing the
training. Thrasher narrated that he went underground to see what
the problem was and that as he was going in the mine he met
Assistant Mine Foreman Bruce Bailey bringing the four miners out
of the mine. After determining that Bailey did not know what had
transpired between the miners and the foremen, Thrasher took the
miners back to the section to talk to the foremen.
Thrasher said that he talked to the foremen for about 30
minutes and they told him that they had barely gotten started
with the training when "the guys told them that they weren't
going to accept the training, they knew how to do the job, they
didn't want to be trained, they weren't going to run the scoop
and they weren't going to sign the forms." (Tr. 42.) He
testified that the foremen also told him that the roof bolters
had said that "they weren't going to take another man's job."
(Id.)
Thrasher provided the following testimony concerning the
resolution of the matter:
Q. Did you attempt to task train them?
A. No.
Q. Why not?
A. I went back to get the story and to make sure they
had been given every option to accept the training
including given some ultimatums of discipline [which]
would follow.
Once I proved it to myself they had every
opportunity to accept the training, I went back to the
track where Bruce Bailey was and talked to Bruce, and
Bruce, who was assistant mine foreman as I said, he was
trying, not at that time, but he said that he had tried
to get them to take the training as well.
They wasn't interested in it. So, at that point I
told them that they were under suspension and given
five days suspension with intent to discharge and I was
taking them out of the mines [sic].
Q. You told the men that?
A. Right.
Q. Was there any discussion between you and the men as
you were taking them out of the mine?
A. Yes.
Q. Tell us what they said.
A. Someone asked for a committeeman, safety
committeeman. I don't know which one because the
diesel engine is just a foot away from my head. I am
facing one direction. They are sitting behind me.
One of them asked for a safety committeeman. I
didn't provide them one because there wasn't a safety
issue. It was training. Another reason was the
suspension had already been given.
(Tr. 45-46.)
The Commission has held that a miner's refusal to perform
work is protected activity under the Act if it is based on a
reasonable, good faith belief that the work involves a hazard.
Pasula, supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at
807-12; Secretary on behalf of Dunmire & Estle v. Northern Coal
Co., 4 FMSHRC 126, 133-38 (February 1982). See also Secretary on
behalf of Cameron v. Consolidation Coal Co., 7 FMSHRC 319, 321-24
(March 1985), aff'd sub nom. Consolidation Coal Co. v. FMSHRC,
795 F.2d 364, 366-68 (4th Cir. 1986); Secretary of Labor v.
Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (February 1984),
aff'd sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469
(11th Cir. 1985). In this case, Carmichael's refusal to accept
task training on the scoop does not meet this test.
In the first place, the purpose of the task training was to
teach the Complainant how to safely operate the scoop. In the
second place, neither Carmichael nor any of the other miners
advanced a basis, reasonable or otherwise, as to how the task
training involved a hazard.[5] Furthermore, since such training
is required by section 48.7, Carmichael's refusal to accept it
could hardly be protected activity. Therefore, I conclude that
Carmichael's refusal to be task trained was not activity
protected under the Act.
ORDER
Accordingly, since the Complainant has failed to show that
he was suspended for engaging in activity protected under the
Act, it is ORDERED that the complaint of Marvin E. Carmichael
against Jim Walter Resources, Inc., under section 105(c) of the
Act, is DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Arnold W. Umbach, III, Esq.,
Braxton Schell, Jr., Esq.,
Bradley, Arant, Rose & White,
1400 Park Place Tower, 2001
Park Place, Birmingham, AL
35203 (Certified Mail)
Tommy E. Tucker, Esq.,
Assistant District Attorney,
Tenth Judicial Circuit,
Bessemer Division, Courthouse
Annex, Bessemer, AL 35020-4907
(Certified Mail)
Mr. Marvin E. Carmichael, P.O.
Box 117, Bessemer, AL 35021-
0117 (Certified Mail)
\mca
**FOOTNOTES**
[1]: Section 105(c)(2) provides, in pertinent part, that:
"Any miner . . . who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination."
[2]: Section 105(c)(3) provides, in pertinent part, that:
"If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own behalf
before the Commission . . . ."
[3]: This was to comply with section 48.7 of the
Regulations, 30 C.F.R. � 48.7, entitled: "Training of miners
assigned to a task to which they have had no previous experience;
minimum courses of instruction."
[4]: Section 105(c)(1) of the Act provides that a miner
cannot be discharged, discriminated against or interfered with in
the exercise of his statutory rights because: (1) he "has filed
or made a complaint under or related to this Act, including a
complaint . . . of an alleged danger or safety or health
violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;" (3) he "has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding;" or, (4) he has
exercised "on behalf of himself or others . . . any statutory
right afforded by this Act."
[5]: Carmichael testified that he learned subsequent to this
incident that Buzbee may not have been qualified to train on the
scoop. However, he admitted that he did not think this at the
time he refused the training.