<DOC>
[DOCID: f:cen9724cd.wais]
F & E ERECTION COMPANY
CENT 97-24-DM
March 14, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 14, 2001
BRYCE DOLAN :
:
v. : Docket No. CENT 97-24-DM
:
F & E ERECTION COMPANY :
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
This discrimination proceeding, before the Commission a
second time, involves a complaint by Bryce Dolan against F&E
Erection Company ("F&E") alleging that his refusal to continue to
perform lead abatement work was protected by section 105(c) of
the Mine Act, 30 U.S.C. � 815(c).[1] In his initial decision,
Administrative Law Judge Jerold Feldman concluded that Dolan's
work refusal was protected, 20 FMSHRC 591 (June 1998) (ALJ), and
that, accordingly, Dolan should be awarded back pay, attorney's
fees, and litigation expenses. 20 FMSHRC 847 (Aug. 1998) (ALJ).
On review, the Commission vacated the discrimination
finding. 22 FMSHRC 171 (Feb. 2000) ("Dolan I"). The Commission
affirmed the judge's finding that Dolan had engaged in a
protected work refusal, but held that the judge erred by failing
to apply the Commission's constructive discharge doctrine, and
remanded the case to the judge for a determination whether Dolan
faced intolerable conditions. Id. at 174-81. We declined to
address the issue of whether the judge erred in concluding that
Dolan had incurred a willful loss of earnings and thereby failed
to mitigate his damages, which the Commission had directed for
review sua sponte. Id. at 181 n.12.
In his decision on remand, the judge found that F&E
constructively discharged Dolan. 22 FMSHRC 554, 560 (Apr. 2000)
(ALJ). Consequently, the judge reinstated his remedial order.
Id. at 560. We granted F&E's petition for discretionary review
challenging the finding of discrimination. The Commission also
issued two directions for review sua sponte, one "on the question
whether the judge properly followed the Commission's remand
instruction `to determine whether Dolan faced intolerable
conditions as of the date of his resignation[,]'" and the other
on whether the judge correctly determined in the reinstated
decision on relief that Dolan failed to mitigate his damages.
For the reasons that follow, we vacate the finding of
discrimination, the determination that Dolan failed to mitigate
damages, and the award of relief, and remand for further
proceedings.
I.
Factual and Procedural Background
The facts are set forth in the Commission's prior decision
and are summarized here. Dolan was an iron worker employed by
F&E, a construction contractor that performed work at an alumina
smelter in Point Comfort, Texas operated by the Aluminum Company
of America ("Alcoa"). 22 FMSHRC at 171. As part of the process
of welding "stiffeners" on trusses that supported large storage
tanks, Dolan and the five to six other members of his crew
removed lead paint from the trusses by burning it off using a
cutting torch. Id. at 172. From late 1994 until March 1996,
Dolan's crew was not furnished with any personal protective
equipment or clothing. Id.
Upon learning that Alcoa employees performing similar tasks
were furnished with protective clothing and respirators due to
the presence of lead, Dolan complained to F&E management about
the lack of personal protective gear and about lead poisoning
symptoms experienced by Dolan and others in the crew. Id. In
response, F&E had air samples taken, and provided Tyvek suits to
the crew. Id. In addition, F&E gave half-face respirators to
all crew members except the employee using the cutting torch, who
was given a full-face respirator. Id. at 172-73.
In late March 1996, Dolan complained that the entire crew
should wear full-face respirators due to their close proximity to
each other, and that the Tyvek suits were inadequate to prevent
lead contamination because they were easily torn and sparks from
the cutting torch readily burned holes in them. Id. at 173. In
response, F&E provided a large quantity of Tyvek suits so they
could be replaced as needed. Id. In addition, F&E required the
crew to vacuum their clothing with high efficiency vacuums before
leaving the work area. Id.
On April 16, 1996, following continued complaints by Dolan
about the inadequacy of the half-face respirators and Tyvek
suits, F&E held a meeting at which its general foreman stated
that F&E would continue to use half-face respirators and Tyvek
suits, and that employees who wished to transfer to non-lead work
could do so. Id. No employees accepted the offer of
reassignment. Id. At the conclusion of the meeting, Dolan quit
his job due to his belief that the personal protective gear was
inadequate to prevent lead exposure to himself and his family.
Id.
After quitting his job, Dolan looked for work and received
unemployment compensation. Id. In June 1996, Dolan's physician
pronounced him unable to work due to pain, tremors and other
neurologic symptoms. Id. Dolan worked on August 11 and 12, 1996
as a construction worker, but had to quit because of pains in his
legs, and did not look for work thereafter. Id.
After MSHA declined to prosecute the claim of discrimination
he filed against F&E, Dolan filed a complaint on his own behalf
with the Commission under section 105(c)(3) of the Act. Id. at
173-74. Analyzing the case as a work refusal, the judge
concluded that Dolan's work refusal was protected and that,
accordingly, Dolan should be awarded back pay and other relief.
20 FMSHRC at 606, 847. Characterizing Dolan's removal from the
labor market as "willful," the judge denied back pay for the
period following August 12, 1996. Id. at 849-50.
A. Dolan I
In our prior decision in this case, we concluded that the
judge erred by failing to analyze the case as a constructive
discharge. 22 FMSHRC at 175. We distinguished between a work
refusal, which is a form of protected activity, and a
constructive discharge, which is a form of adverse action. Id.
We stressed that, under the Pasula-Robinette test,[2] a finding
of adverse action is a prerequisite to a finding of
discrimination under section 105(c), and that a work refusal, in
and of itself, did not constitute adverse action. Id. We noted
that the judge's failure to analyze the case as a constructive
discharge stemmed from his erroneous view that, in order to make
out a constructive discharge claim, Dolan had to show that the
operator had created intolerable conditions with the specific
goal of encouraging him to quit his employment. Id. at 175-76.
We pointed out that, under Simpson v. FMSHRC, 842 F.2d 453 (D.C.
Cir. 1988), and its progeny, the focus is on the maintenance of
intolerable conditions, rather than on whether the operator has
retaliated against a miner's protected activities by deliberately
causing hazardous conditions in an explicit effort to encourage
the miner's resignation. Id. We stated that, in cases of
constructive discharge, the Commission first examines whether the
miner engaged in a protected work refusal, and then whether the
conditions faced by the miner were intolerable. Id. at 176-77.
We upheld, on substantial evidence grounds, the judge's
determinations that Dolan had a good faith, reasonable belief in
the hazards of continuing to perform lead abatement work, and
that F&E failed to address Dolan's concerns in a way that should
have quelled his fears. Id. at 177-78. Consequently, we
affirmed the judge's conclusion that Dolan's work refusal was
protected. Id. at 180.
We warned, however, that the work refusal issue, based
largely on subjective considerations, may not be collapsed into
the constructive discharge question, which is governed by an
objective inquiry into the existence of intolerable conditions.
Id. at 179. In view of the judge's failure to analyze the case
as a constructive discharge, we vacated his finding of
discrimination and remanded "for the judge to determine whether
Dolan faced intolerable conditions as of the date of his
resignation." Id. at 180 (footnote omitted).[3] The Commission
further instructed the judge to "consider anew the impact of
F&E's offer to reassign Dolan and other crew members to non-lead
jobs," noting that, under Commission precedent, a short-term
reassignment which the miner reasonably believes will be followed
by a retransfer to duties that would expose him again to
intolerable conditions is an inadequate response to such
conditions. Id. at 180-81. Finally, in view of our remand on
the discrimination question, we declined to decide the mitigation
of damages issue. Id. at 181 n.12. Consequently, we vacated the
judge's finding of discrimination and remanded the case "for
further proceedings consistent with this opinion." Id. at 181.
B. The Judge's Remand Decision
On remand, the judge commented that his statement at the
hearing indicating that, to prove he was constructively
discharged, Dolan was required to establish that F&E purposely
created intolerable conditions to induce him to resign, referred
to a "retaliatory constructive discharge." 22 FMSHRC 554. The
judge noted the Commission's instructions that he "determine,
using an objective standard, whether the working conditions at
the time of Dolan's . . . resignation constituted a constructive
discharge." Id. at 556. The judge reviewed the standard for
finding a protected work refusal, reiterated that Dolan's fears
were reasonable and made in good faith, and stressed that "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." Id. at 558. The judge specifically declined to
decide whether intolerable conditions existed, stating:
[W]hether 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.
Id. The judge concluded that "[i]t 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
constructive discharge." Id. (citation omitted).[4]
On the question of the effect of F&E's offer to transfer
employees to non-lead work, the judge held that an offer of
reassignment to complaining employees that leaves other miners
exposed to the subject hazard does not mitigate the operator's
conduct. Id. at 559. Moreover, the judge credited the testimony
of Dolan and crew member Kenneth Tam that "any reassignment would
have been temporary in nature." Id. Consequently, the judge
found that Dolan had been constructively discharged. Id. at 560.
Finally, the judge reinstated his Supplemental Decision on
Relief. Id.
II.
Disposition of Issues
A. Constructive Discharge
F&E argues that it did more than was required by the OSHA
Construction Industry Lead Standard, that the judge ignored
evidence relating to the offer to transfer Dolan to a non-lead
job, and that its response to Dolan's complaints was "more than
adequate." F&E Br. at 13-14. F&E contends that, notwithstanding
the Commission's remand instructions, the judge again conflated
the work refusal and constructive discharge issues, and failed to
make the requisite finding of intolerable conditions necessary to
support a determination that F&E constructively discharged Dolan.
Id. at 14-15. F&E asserts that, despite this failure, remand to
the judge on the constructive discharge question is unnecessary
because the record will not support a finding of constructive
discharge. Id. at 15-16. Consequently, F&E requests that the
Commission reverse the judge's finding of discrimination. Id. at
16. In response, Dolan argues that the judge identified
aggravating factors, such as F&E's failure to effectively address
Dolan's concerns, that are intertwined with the intolerable
conditions inquiry. D. Br. at 16. Dolan asserts that
substantial evidence in the record as a whole supports the
judge's conclusion that F&E constructively discharged Dolan. Id.
at 12-16.
We conclude that the judge failed to carry out the analysis
required by the Commission's remand instructions. Instead, he
basically reiterated his initial decision, again substituting the
work refusal analysis for an inquiry into whether Dolan faced
intolerable conditions. We find the judge's failure to follow
Commission precedent, and particularly the law of the case set
forth in Dolan I, troubling.
As we held long ago, "[a]n administrative law judge must
follow the rules and precedents of the Commission." Sec'y of
Labor on behalf of Jones v. Oliver, 1 FMSHRC 23, 24 (Mar. 1979).
This is the Commission's formulation of the well-settled rule
that requires a lower tribunal to strictly adhere to the terms,
express or implied, of an appellate court's mandate, "taking into
account the appellate court's opinion." Piambino v. Bailey, 757
F.2d 1112, 1119 (11th Cir. 1985). The "law of the case" doctrine
is a specific application of the mandate rule that requires a
trial court to follow appellate determinations of fact and law in
subsequent proceedings in the same case, unless new evidence or
an intervening change in precedent dictates a different result.
Id. at 1120. As the Supreme Court has stated,
When a case has been once decided by
this court on appeal, and remanded to the
[lower] court, whatever was before this
court, and disposed of by its decree, is
considered as finally settled. The [lower]
court is bound by the decree as the law of
the case, and must carry it into execution
according to the mandate. That court cannot
vary it, or examine it for any other purpose
than execution; or give any other or further
relief; or review it, even for apparent
error, upon any matter decided on appeal; or
intermeddle with it, further than to settle
so much as has been remanded.
In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).
We have noted that "`[l]aw of the case rules have developed
to maintain consistency and avoid reconsideration of matters once
decided during the course of a single continuing lawsuit.'" E.
Ridge Lime Co., 21 FMSHRC 416, 421 (Apr. 1999) (quoting 18
Charles Alan Wright, et. al., Federal Practice and Procedure, �
4478 at 874 (2d ed. Supp. 1999)); see also Lion Mining Co., 19
FMSHRC 1774, 1777 (Nov. 1997) (matter decided by Commission
becomes unassailable law of the case and may not be revisited by
judge). The doctrine is "a salutary rule of practice designed to
bring an end to litigation." Piambino, 757 F.2d at 1120. "It
also `protects against the agitation of settled issues and
assures obedience of lower courts to the decisions of appellate
courts.'" Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440
(11th Cir. 1984) (quoting United States v. Williams, 728 F.2d
1402, 1406 (11th Cir. 1984)).
Our holding and instructions to the judge in Dolan I could
not have been clearer. We determined that the judge erred by not
analyzing Dolan's claim as a constructive discharge. We restated
Commission and court precedent to the effect that proof of a
constructive discharge required a showing that Dolan had engaged
in a protected work refusal and that he faced "intolerable
conditions."[5] Upholding the judge's conclusion that Dolan had
engaged in a protected work refusal, we remanded the matter to
the judge with specific instructions that he determine whether
Dolan faced "intolerable conditions." This the judge failed to
do. Instead, he engaged in the identical analysis that led to
our remand in Dolan I.[6]
Although we sympathize with F&E's desire to avoid another
remand in this case, we are not persuaded by its argument that,
because the record compels the conclusion that the operator did
not constructively discharge Dolan, i.e., that Dolan did not face
intolerable conditions, remand is unnecessary. F&E relies on
Dolan's blood lead levels, its use of protective measures, the
lack of harm to Dolan's family, its compliance with the OSHA
Construction Industry Lead Standard and the offer of transfer to
non-lead work in support of its request that the Commission
dismiss Dolan's complaint. F&E Br. at 15-16. However, the
efficacy of F&E's protective measures was disputed at the hearing
by Robert Miller, the industrial hygienist called as an expert
witness on Dolan's behalf. 22 FMSHRC at 178-79. Miller's
testimony was credited by the judge as to the half-face
respirators, and undisputed concerning the Tyvek suits. Id.
Similarly, the Commission held that the record contains evidence
on both sides of the question whether F&E's transfer offer
constituted an offer to a short-term reassignment, which does not
mitigate intolerable conditions under Commission precedent.[7]
Id. at 180-81. In addition, in light of evidence detailing
Dolan's own exposure and that of his crew, lack of harm to
Dolan's family would not preclude a finding of constructive
discharge. Further, because the OSHA standard does not apply in
this workplace, compliance with its terms concerning blood lead
levels and medical removal is not necessarily dispositive here.
This is not the first instance that a Commission
Administrative Law Judge has ignored remand instructions, nor is
it the first time Judge Feldman has done so. In RAG Cumberland
Resources Corp., we noted: "Although the Commission instructed
the judge on remand to consider all the record evidence regarding
inspections in the haulage including [the operator's] log, and
determine whether the Secretary met her burden of proving the
absence of an intervening clean inspection, the judge failed to
do so. . . . The judge's analysis in his remand decision is
almost identical to his reasoning in the initial decision, which
the Commission did not accept." 22 FMSHRC 1066, 1071 (Sept.
2000), pet. for review docketed, No. 00-1438 (D.C. Cir. October
6, 2000); see also E. Ridge Lime, 21 FMSHRC at 421-23 (noting
that judge failed to carry out factfinding and analysis required
by court remand). In light of the clarity of our instructions in
Dolan I, and the judge's failure to follow them, we are inclined
to remand this matter to another judge. Remand to a different
judge, however, is a rarely-utilized measure, because it is
inefficient administratively and results in the parties suffering
an unfair delay in the final adjudication of the case. We have
not recently taken the time to stress the overwhelming importance
we attach to judges faithfully carrying out the remand
instructions we provide in our decisions. We take the
opportunity to do so now, and trust that remand to a different
judge will not become necessary in this or subsequent cases.
Accordingly, we vacate the judge's determination that F&E
constructively discharged Dolan in violation of section 105(c),
and remand this proceeding for re-analysis of the constructive
discharge issue and a determination whether Dolan faced
intolerable conditions. In analyzing this question, we insist
the judge reconsider his finding on the effect of F&E's
reassignment offer. Although the judge did address the effect of
the offer of transfer to a non-lead job on conditions faced by
Dolan, contrary to the remand instructions, he examined this
issue in isolation, without analyzing, or entering findings on,
the overall conditions faced by Dolan at the time he quit his
employment. See 22 FMSHRC at 180 ("[W]e remand for the judge to
determine whether Dolan faced intolerable conditions as of the
date of his resignation. In so doing, the judge must consider
anew the impact of F&E's offer to reassign Dolan and other crew
members to non-lead jobs.") (emphasis supplied).
**FOOTNOTES**
[1] Section 105(c) provides in pertinent part:
No person shall discharge or in any
manner discriminate against . . . or
otherwise interfere with the exercise of the
statutory rights of any miner . . . because
such miner . . . has filed or made a
complaint under or related to this Act,
including a complaint notifying the operator
or the operator's agent . . . of an alleged
danger or safety or health violation . . . or
because of the exercise by such miner . . .
on behalf of himself or others of any
statutory right afforded by this Act.
[2] See Sec'y of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981); Sec'y of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 812 (Apr. 1981).
[3] The Commission also noted that the burning method chosen
by F&E to remove paint, which was the subject of lengthy criticism
by the judge, was not in and of itself an issue in the case,
although it is relevant for evaluating the adequacy of F&E's
protective measures. Id. at 179 n.9
[4] Notwithstanding the Commission's statement in Dolan I
that the burning of lead paint was not an issue in the case, the
judge on remand again discussed the question and concluded that
"F&E must bear the burden of departing from generally accepted
methods of lead abatement." Id. at 557.
[5] We stated in Dolan I that, since Simpson, the Commission
has generally engaged in a two-step inquiry in constructive
discharge cases: first, "whether the miner has engaged in a protected
work refusal, and then whether the conditions faced by the miners
constituted intolerable conditions." 22 FMSHRC at 176-77.
See Sec'y of Labor on behalf of Bowling v. Mountain Top Trucking
Co., 21 FMSHRC 265, 272-81 (Mar. 1999), aff'd, 230 F.3d 1358
(6th Cir. 2000) (table); Sec'y of Labor on behalf of Nantz v. Nally
& Hamilton Enters., 16 FMSHRC 2208, 2210-13 (Nov. 1994).
[6] In support of his refusal to apply the Commission's
objective intolerable conditions analysis, the judge cited pre-Simpson
cases, some of which are work refusal cases involving express
terminations rather than constructive discharges. See 22 FMSHRC at
557. The judge also purported to rely on Gilbert v. FMSHRC,
866 F.2d 1433, 1439 (D.C. Cir. 1989) and two subsequent decisions
of the Commission in that case, Gilbert v. Sandy Fork Mining Co.,
12 FMSHRC 177 (Feb. 1990) ("Gilbert I") and 12 FMSHRC 1203 (June
1990) ("Gilbert II"). 22 FMSHRC at 557, 558. In Gilbert v. FMSHRC,
however, the court vacated the Commission's work refusal holding
without discussing the constructive discharge issue. And Gilbert
cites the court's earlier decision in Simpson with approval.
866 F.2d at 1439. In its decision on remand, the Commission
stated that, because the miner "did not act precipitately
and . . . he entertained a good faith, reasonable belief in
a hazard, his departure from the mine constituted a
discriminatory discharge in violation of section 105(c)(1) of
the Mine Act." Gilbert I, 12 FMSHRC at 181-82. However,
the Commission was only deciding those issues remanded by the
court (12 FMSHRC at 178) which did not include the
constructive discharge question. 866 F.2d at 1441, 1443.
Moreover, on petition for reconsideration filed by the
operator, the Commission subsequently vacated its holding on the
merits in Gilbert I (including the language quoted by the
judge) and remanded the matter to the judge to "`make the
necessary factual findings' ordered by the Court's remand."
Gilbert II, 12 FMSHRC at 1205. Thus, the Gilbert decisions in
no way altered the Simpson holding that to make out a constructive
discharge, intolerable conditions must be proven, nor have they
been interpreted to affect the intolerable conditions inquiry by
subsequent Commission decisions. See Dolan I, 22 FMSHRC at 175-77
(citing Gilbert v. FMSHRC); Bowling, 21 FMSHRC at 272-76
(same); Nantz, 16 FMSHRC at 2211-13 (same).
[7] See Nantz, 16 FMSHRC at 2214.
B. Mitigation of Damages/Back Pay
In his remand decision, the judge reinstated his remedial
order in which he excluded from back pay the period during which
Dolan claimed to be disabled from work, based on the holding that
Dolan willfully removed himself from the labor market. 20 FMSHRC
at 849-50. If on remand this second time the judge concludes
that F&E unlawfully discriminated against Dolan, he must again
confront this issue. As In Dolan I, this issue was directed for
review sua sponte. Although in Dolan I we determined that "it
[was] not appropriate to decide the mitigation of damages issue,"
22 FMSHRC at 181 n.12, we will do so now to avoid further remands
in this case.
Dolan contends that the record does not support the judge's
conclusion that Dolan willfully failed to mitigate damages. D.
Br. at 22. Dolan stresses that he did all he could do to obtain
work, and argues that he should not be penalized for his
disabling physical condition that made it impossible for him to
work. Id. at 21, 22. F&E responds that Dolan should have
"lowered his sights" and looked for non-construction work
following his inability to perform construction work on August
12, 1996. F&E Resp. Br. at 8-9. His failure to do so, according
to F&E, constitutes a failure to mitigate damages. Id. at 9.
F&E also contends that Dolan would not have worked for it after
August 12 due to his claimed physical condition, and that the
Commission should apply the general rule that back pay is
unavailable for periods when the employee is not seeking work.
Id. at 9-10.
The question of whether and under what circumstances an
employee who is disabled from work has failed to mitigate damages
is one of first impression under the Mine Act. It is well
settled, however, under the National Labor Relations Act[8] that
employees are not entitled to back pay for periods of disability
rendering the employee unavailable for work, except where
disabilities are closely related to interim employment, or arise
from the discriminatory conduct, and are not a usual incident of
the hazards of living generally. See NLRB v. Louton, Inc., 822
F.2d 412, 415 (3d Cir. 1987) (holding back pay not awarded during
period in which employee unavailable for work due to disability);
Am. Mfg. Co., 167 NLRB 520, 522 (1967) (recognizing exception
where interim disability closely related to interim employment or
arises from unlawful conduct); Becton-Dickinson Co., 189 NLRB
787, 789 (1971) (same); see also Wells v. N. Carolina Bd. of
Alcoholic Control, 714 F.2d 340, 342 (4th Cir. 1983) (approving
back pay award under Title VII of 1964 Civil Rights Act for
period of disability caused by unlawful discrimination and
interim employment); Mason v. Ass'n for Ind. Growth, 817 F. Supp.
550, 554-55 (E.D. Pa. 1993) (same); Whately v. Skaggs Cos., 508
F. Supp. 302, 304 n.1 (D. Colo. 1981) (adopting same rule under
Age Discrimination in Employment Act), aff'd in relevant part,
707 F.2d 1129, 1138 & n.8 (10th Cir.), cert. denied, 464 U.S. 938
(1983); Grundman v. Trans World Airlines, Inc., 54 FEP Cases 224,
1990 WL 165756 (S.D.N.Y. 1990) (same); Martin v. Dep't of the Air
Force, 184 F.3d 1366 (Fed. Cir. 1999) (adopting same rule under
Back Pay Act).
We agree with the National Labor Relations Board that "the
practice of disallowing back pay without inquiry as to the nature
of the physical disability, [and] the cause thereof . . . may be
convenient but it is not always equitable." Am. Mfg. Co., 167
NLRB at 522. Therefore, we adopt the exception discussed above
to ensure that miners disabled due to the conditions which gave
rise to their employers' discriminatory conduct can still receive
redress. Thus, if Dolan's exposure to lead caused his
disability, he is entitled to back pay for the period of time at
issue.
According to F&E, on June 11, 1999, the Texas Workers'
Compensation Commission determined that Dolan was disabled
beginning August 14, 1996. F&E Resp. Br. at 10 n.9. However,
this is not a matter of record in this case, and the judge did
not enter any findings concerning the nature or cause of Dolan's
disability. On the contrary, in his initial decision on remedy,
the judge held that whether Dolan was disabled, and whether
Dolan's health condition was caused by F&E, were questions beyond
the scope of the discrimination proceeding. 20 FMSHRC at 849.
Should he find unlawful discrimination, he must revisit his
remedial order and reopen the record[9] for the purposes of 1)
adducing evidence that would permit the entry of findings on the
existence, nature and cause of Dolan's disability, and 2)
determining whether the period of any such disability should be
excluded from back pay based on the principles we announce today.
**FOOTNOTES**
[8] The Commission has relied upon precedent under the
National Labor Relations Act in resolving mitigation of damages
questions. See, e.g., Metric Constructors, Inc., 6 FMSHRC 226,
231-33 (Feb. 1984) (citing NLRA precedent on operator's burden of
proof and requirement that discriminatee make reasonable efforts
to find other employment).
[9] When the Commission announces a new rule of law,
interpretation, or elements of proof, it permits the taking of
additional evidence on remand. See, e.g., Pyramid Mining Inc.,
16 FMSHRC 2037, 2040-41 (Oct. 1994).
III.
Conclusion
For the foregoing reasons, we vacate the judge's finding of
discrimination, his determination that Dolan failed to mitigate
damages, and the award of relief, and remand the case for further
proceedings consistent with this opinion.
________________________________
James C. Riley, Commissioner
________________________________
Theodore F. Verheggen, Commissioner
________________________________
Robert H. Beatty, Jr., Commissioner
Chairman Jordan, dissenting:
I would affirm the judge's finding that Dolan was
constructively discharged. As I stated in Dolan I, 22 FMSHRC 171
(Feb. 2000), a judge who determines that a miner's work refusal
has protected status under section 105(c) of the Mine Act, 30
U.S.C. � 815(c), has necessarily concluded that the miner does
not have to tolerate the conditions under which the employer is
asking him or her to work. The conditions prompting the work
refusal have therefore been deemed intolerable. Id. at 183.
Consequently, because the judge in this case initially found that
Dolan's work refusal was protected, it has never been necessary
to remand this matter to him to determine whether intolerable
conditions caused Dolan to quit.
My colleagues contend that, according to Commission
precedent, a finding that a miner was constructively discharged
and a finding that a miner engaged in a protective work refusal
involve two distinct legal standards. Slip op. at 3, 6. They
maintain that Commission law applies a subjective standard to
determine whether a work refusal is protected, but uses an
objective standard to determine if intolerable conditions
prompted a miner's decision to quit. Slip op. at 4. I do not
agree that such a neat dichotomy exists. Indeed, I view this
case as one in which the determination that Dolan's work refusal
was protected and the determination that Dolan was constructively
discharged are simply two sides of the same analytical coin. A
miner is considered to be engaged in a protected work refusal
when that miner has a "good faith, reasonable belief in a
hazardous condition." Sec'y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Sec'y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 812 (Apr. 1981) (emphasis
added). A refusal to work may lose its protected status if an
operator takes reasonable steps to dissipate the miner's fears or
ensure the safety of the challenged task or condition. See
Gilbert v. FMSHRC, 866 F.2d 1433, 1440-41 (D.C. Cir. 1989); Sec'y
of Labor on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993,
998-99 (June 1983).
Notwithstanding my colleagues' suggestion to the contrary, a
work refusal based on a miner's idiosyncratic, subjective belief
in a hazard would not be deemed reasonable and consequently would
not enjoy protected status under the Mine Act. Consider, for
example, a miner who holds firmly to the belief that the number
13 is unlucky. If that miner refused to work in the section of
the mine designated 0013 because of that belief, I daresay we
would not consider that miner to be engaged in a protected work
refusal. This is so even though there might be no doubt that the
miner honestly believed he or she would be risking injury if
compelled to work in section 0013. The miner's subjective fear
alone would be insufficient to bring the miner within the
protective ambit of section 105(c) because his or her fear would
not be considered reasonable.
To determine whether a miner's belief in a hazard is
reasonable, the Commission must necessarily consider more than
the miner's subjective belief. We must consider the conditions
confronting the miner and ask whether a reasonable miner might
fear for his or her health or safety under those circumstances.
This is not to say that a miner who refuses to work must be
prepared to demonstrate that an actual hazard existed in order to
have the work refusal deemed protected. See Liggett Indus. v.
FMSHRC, 923 F.2d 150 (10th Cir. 1991); Gilbert, 866 F.2d at 1439.
The miner need only prove that he or she had a reasonable and
good faith belief that such a hazard did exist. (The lack of a
hazard, however could bear on the reasonableness of an employee's
belief that his health or safety is in danger. Liggett, 923 F.2d
at 152).
By the same token, I am unclear what to make of my
colleagues' assertion that Commission law imposes a different,
objective standard to determine whether a miner has been
constructively discharged. I trust they do not mean to imply
that a miner who quits because of a reasonable good faith fear
for his or her safety will not prevail under section105(c) unless
that miner can demonstrate that an actual hazard did in fact
exist.
Although my colleagues insist that an objective standard
must be applied to constructive discharge cases, I can envision
awarding relief under section 105(c) to a miner who quits work
because of a purely subjective fear. Take the same superstitious
miner I described earlier. What if the evidence revealed that
this miner was assigned to section 0013 because management was
confident this particular miner would resign under those
circumstances and it wished to retaliate against the miner for
reporting safety violations to MSHA? Would we apply an objective
standard to the condition confronting the miner at the time he or
she quit? On the one hand, it is difficult to see how the number
of the mining section to which one is assigned could be consid-
ered an intolerable condition under which to work. Despite the
subjective nature of the miner's fear, however, it is obvious
that the protective purpose of section 105(c) would be completely
thwarted if this hypothetical operator were to escape liability.
My colleagues' insistence on separate standards is all the
more puzzling when one considers that, whether we say a miner was
engaged in a protected work refusal or whether we say a miner has
been constructively discharged, the economic implications for the
operator are the same. As long as a work refusal retains its
protected status, the operator cannot cause the miner to suffer
lost wages. This is the same obligation that will be imposed
upon an operator who is deemed to have constructively discharged
a miner. Therefore, whether an employee engages in a continuing
protected work refusal or quits under conditions deemed
intolerable, the economic bottom line for the operator is the
same: liability for lost wages.
In this case, the judge concluded that Dolan had a good
faith reasonable belief that a hazardous condition existed -
namely, overexposure to lead. 20 FMSHRC 591, 599, 605 (June
1998). The judge noted that Dolan did not act precipitately.
22 FMSHRC 554, 558 (Apr. 2000). Dolan initially raised safety
related complaints in March 1996 and he did not resign until
April 16, 1996, when it became clear that F&E would not take any
further steps to alleviate Dolan's continuing concern that he was
at risk for lead exposure. 20 FMSHRC at 596-98. The judge
considered the steps that F&E took in response to Dolan's
complaints and found they failed to address Dolan's concerns in a
way that should have alleviated his fears. Id. at 600-604. Thus,
the judge concluded that Dolan's resignation on April 16, 1996
constituted a constructive discharge.
In their earlier opinion, my colleagues concluded that
substantial evidence supported the judge's finding that Dolan's
refusal to perform lead abatement work was protected, but
remanded the case because he had not analyzed it as a
constructive discharge. 22 FMSHRC at 180. In the current
proceeding, my colleagues remand this matter once again because
the judge, although deeming Dolan's quit to be a constructive
discharge, "engaged in the identical analysis that led to our
remand in Dolan I." Slip op. at 7. My colleagues attribute the
judge's errors to an obstinate refusal to follow the law of the
case. Slip op. at 5-7. I do not share that conviction. While
they understandably consider their prior opinion to have been
drafted with sufficient clarity so as to preclude inadvertent
error on remand, I am unable to rule out that possibility.
I also disagree with my colleagues' determination that it is
necessary to remand this matter so the judge can determine
whether the operator's offer to transfer Dolan to a non-lead
removal job defeated Dolan's claim that he faced intolerable
conditions. Slip op. at 8. My colleagues have reiterated the
view expressed in their earlier opinion (with which I agreed)
that "a short-term reassignment which the miner reasonably
believes will be followed by a retransfer to duties that would
expose him again to intolerable conditions is an inadequate
response to such conditions." Slip op. at 4. In his first
opinion, the judge found that the transfer would be temporary,
and he made that finding again on remand. 22 FMSHRC at 559. In
light of this determination, I fail to understand why my
colleagues nevertheless "insist the judge reconsider his finding
on the effect of F&E's reassignment offer." Slip op. at 8.
Consequently, I would affirm the judge's holding that Dolan
was constructively discharged. I would remand the case only to
reopen the record for the judge to receive evidence and make a
finding on the issue of mitigation of damages, according to the
principles set forth in my earlier opinion and subsequently
adopted by my colleagues.
__________________________________
Mary Lu Jordan, Chairman
Distribution
Errol John Dietze, Esq.
Dietze & Reese
P.O. Box 841
Cuero, TX 77954
V'Anne Bostick Huser, Esq.
P.O. Box 567
Shiner, TX 77984
James S. Cheslock, Esq.
Cheslock, Deely & Rapp, P.C.
405 N. St. Mary's Street, Suite 600
San Antonio, TX 78205
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041