<DOC>
[DOCID: f:hannah96.wais]

 
CONSOLIDATION COAL COMPANY
December 10, 1996
LAKE 94-704-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                          December 10, 1996

SECRETARY OF LABOR,                  :
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION (MSHA),             :
  on behalf of KENNETH HANNAH,       :
  PHILIP PAYNE, and FLOYD MEZO       :
                                     :
                   v.                :    Docket No. LAKE 94-704-D
                                     :
CONSOLIDATION COAL COMPANY           :


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                               DECISION

BY THE COMMISSION:

     This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act").  Following an evidentiary hearing,
Administrative Law Judge Gary Melick dismissed a discrimination
complaint brought by the Secretary of Labor on behalf of Kenneth
Hannah, Floyd Mezo, and Phillip Payne under section 105(c)(2) of
the Mine Act, 30 U.S.C. � 815(c)(2).  17 FMSHRC 666 (April 1995)
(ALJ).  The judge concluded that disciplinary action taken by
Consolidation Coal Company ("Consol") against the three miners for
engaging in a work refusal did not violate section 105(c)(1) of
the Mine Act, 30 U.S.C. � 815(c)(1), because, at the time of their
refusal, the miners no longer had a good faith, reasonable belief
in a hazardous condition.  17 FMSHRC at 671-72.  For the reasons
that follow, we reverse the judge's determination that the miners'
work refusal was unreasonable and unprotected, and his resultant
finding that the disciplinary measures taken by Consol against the
miners for engaging in a work refusal did not violate the Mine
Act.  We remand the case for computation of a backpay award and
assessment of an appropriate civil penalty.

                                  I.

                  Factual and Procedural Background

     Kenneth Hannah, Floyd Mezo, and Phillip Payne were employed
by Consol at its Rend Lake Mine in Sesser, Illinois.  Tr. 198-99,
258-59, 310-11.  Rend Lake Mine is considered a "gassy" mine
because of the amount of methane it liberates.  Tr. 160, 219.
During the last shift on April 9, 1994, the mine experienced a
power outage, causing the ventilating fans to shut down.  17
FMSHRC at 668.  In the early morning hours of Sunday, April 10,
Hannah, Mezo, Payne and other miners were called to the mine to
help restore power underground.  Id. at 667-68, 670.

     On the morning of April 10, Mezo and Payne were in the wash
house, waiting to go underground, when three of the miners
assigned to perform the preshift examination returned to the
surface.  Id. at 670.  Mezo and Payne overheard the examiners
discussing among themselves whether the secondary escapeways
should have been inspected as part of that examination.  Id.  At
least two of the examiners expressed the view that the secondary
escapeways should have been included in the preshift examination,
and that the escapeways had always been examined in the past
following a fan stoppage.  Tr. 46-47, 49, 108-09, 262.[2]  The
examiners indicated that, without such an examination, it was not
possible to determine whether methane may have accumulated in the
escapeways.  Tr. 262-63.

     The escapeways are part of the mine ventilation system and
are used to carry methane gas out of the mine.  Tr. 42-43, 483.
Methane can accumulate in the escapeways following a fan stoppage.
Tr. 483-84, 522.  The escapeways also contain electrical
equipment, including pumps, that could trigger an ignition in the
event of a malfunction in the presence of explosive levels of
methane.  Tr. 106-07, 170-71, 275.

     Mezo and Payne went to the office of their immediate
supervisor, John Moore, to report their concerns about the
propriety of the preshift examination and the safety of restoring
power in the mine.  17 FMSHRC at 670; Tr. 202-03, 263-64, 454.
Payne expressed his concern about a possible methane buildup in
the mine.  Tr. 491.  Moore indicated that he was not a mine
examiner and did not know whether the preshift examination was
adequate, but he agreed to find out.  17 FMSHRC at 670.  Moore
then attempted to call someone, and Mezo and Payne returned to the
wash house.  Id.  In the wash house, Mezo and Payne discussed with
Hannah, a member of the mine safety committee, their concerns
about the preshift examination and their meeting with Moore, and
asked Hannah to represent them in their discussions with
management concerning this safety issue.  Id. at 668, 670.

     Before meeting with Moore, Hannah discussed the situation
with the three examiners who had returned to the surface.  The
examiners told Hannah that the entire mine, including the
secondary escapeways, should be checked before power is restored.
Id. at 668.  Hannah, Mezo, and Payne then met again with Moore in
his office.  Hannah explained what he had been told by the
examiners and asked Moore if he knew whether the preshift
examination had been properly conducted.  Id.  Moore responded
that he did not know because he was not experienced in production.
Id.  Hannah replied that he did not know either because he was a
surface electrician, with no underground mining experience.  Id.
at 667-68.  Moore then called assistant mine superintendent Rick
Harris.  Id. at 668.

     While he was on the phone with Harris, Moore called the three
mine examiners to his office.  Id.  Two of the examiners expressed
the view that the mine had not been properly examined following
the fan stoppage because the secondary escapeways had not been
inspected.  Id.; Tr. 266-67, 322.  After completing his phone
conversation with Harris, Moore told the miners that Harris said
the mine examination had been proper.  17 FMSHRC at 668.  Moore
also told the miners he had discussed the situation with mine
superintendent Joseph Wetzel, who also confirmed that the
examination had been properly conducted.  Tr. 456-57, 477.  Hannah
told Moore that the mine examiners disagreed and that they needed
to get the "proper people" to the mine to make sure it was safe.
17 FMSHRC at 668.  Hannah then read to Moore provisions of the
applicable collective-bargaining agreement, which provided that in
the event of a disagreement between miners and management on a
safety issue arising under state or federal law, the appropriate
officials were to be contacted.  Id. at 668-69.

     Shortly thereafter, Moore appeared at the wash house and told
Hannah, Mezo, and Payne that Consol safety director Kit Phares had
contacted state inspector William Sanders, who indicated the
preshift examination had been properly conducted and that it was
not necessary to inspect escapeways during the examination.  Id.
at 669, 671; Tr. 324-25, 414, 457-58, 548-49.  Moore consequently
issued a direct order to Mezo and Payne to return to work.  Tr.
33, 118-19, 415, 457.  Hannah again referred to the contract
provision requiring the presence of an appropriate state or
federal official to resolve a safety dispute, and asked Moore to
either call state inspector Sanders himself, or allow Hannah to
call Sanders.  17 FMSHRC at 669, 671; Tr. 325, 458, 464-65, 549.
Moore refused, explaining that mine superintendent Wetzel had been
called to the mine and would handle the matter thereafter.  17
FMSHRC at 669, 671; Tr.  325-26, 458, 465.  Mezo and Payne stated
that they were invoking their "safety rights" in response to the
work order issued by Moore.  17 FMSHRC at 669; Tr. 86, 270, 326.

     Hannah returned to his work area where his foreman, Gary
Phelps, directed him to restore power to the mine.  Hannah
refused, noting that two mine examiners were still underground at
the time.  17 FMSHRC at 669.  Hannah stated that he was invoking
his "individual safety rights" because if  there was an electrical
fault with methane present, it could trigger an explosion that
would kill or maim the examiners still underground.  Id.; Tr. 330-
31, 347, 359.  Moore then also gave Hannah a direct order to turn
the power on.  Hannah again refused with the same explanation.  17
FMSHRC at 669.  Hannah then told Moore that he had other work
duties to perform, and Moore told him to return to his other work.
Id.

     A short time later, Hannah was called to a meeting in the
office of mine superintendent Wetzel, where Wetzel was questioning
Mezo and Payne about the basis for their work refusal.  Id.
Hannah intervened, and explained that the miners were concerned
about causing an explosion and killing themselves and fellow
workers.  Id.  Hannah also read to Wetzel the applicable contract
provision which required calling in an appropriate state or
federal official in the event of  a safety dispute.  Tr. 334-35.
Wetzel responded that the state inspector had been called and
would be there shortly.  Tr. 278, 335.  Wetzel and Gerald Kowzan,
Consol's supervisor of human resources, warned the miners they
could be subject to disciplinary action, including discharge and
the removal of Hannah from the safety committee, for improperly
invoking their "safety rights" under the Contract.  Tr. 278, 335-
36, 646-47.

     When inspector Sanders arrived at the mine, he met with
Wetzel and the three miners.  17 FMSHRC at 669; Tr. 147-48, 279-
80, 596-97.  Hannah asked Sanders whether an inspection of the
mine in its entirety was required following a power outage and fan
stoppage.  17 FMSHRC at 669.  Sanders responded that under state
law secondary escapeways only had to be examined every twenty-four
hours, and did not need to be reexamined after a power outage.
Id.   Sanders also indicated that it was safe to turn on the power
in the mine.  Id.  Hannah then told Mezo and Payne it was time to
turn on the power and return to work.  Id. at 669-70.  Wetzel,
however, informed the miners that the matter was not over and that
they were subject to discipline and the removal of Hannah from the
safety committee.  Id. at 670.

     Consol suspended Hannah, Mezo, and Payne, with the intent to
discharge them, because they had failed to obey direct work
orders.  17 FMSHRC at 666 n.1; Tr. 599.  Hannah subsequently filed
a grievance in connection with this disciplinary action, which
resulted in a two-day hearing before an arbitrator.  Tr. 432, 656.
On April 25, the arbitrator issued a decision in which he found
that Consol had just cause for disciplining the three miners, but
also concluded that the penalty of discharge was too severe
because of mitigating factors, and therefore ordered the three
miners reinstated without back pay.  17 FMSHRC at 666 n.1; Tr.
599, C. Ex. 1.  The record indicates that Hannah, Mezo, and Payne
had never previously refused a work order or raised a safety
concern, and had not been subject to any prior disciplinary
action.  Tr. 255-56, 280, 341-42, 492, 521-22, 673.

     Hannah, Mezo, and Payne filed a discrimination complaint with
the Department of Labor's Mine Safety and Health Administration
("MSHA"), and the Secretary filed the present complaint on their
behalf, pursuant to Section 105(c)(2) of the Mine Act, 30 U.S.C.
� 815(c)(2).[3]

     The judge concluded the disciplinary action taken by Consol
against the three miners did not violate the Mine Act because, at
the time of their work refusal, the miners no longer had a good
faith, reasonable belief in a hazardous condition that justified
their refusal to work.  17 FMSHRC at 671-72.  This conclusion was
based on the judge's finding that, in response to the miners'
stated safety concerns, Consol management had fulfilled its
obligation to address the perceived danger communicated by the
three miners by contacting a state inspector to confirm that the
preshift examination was proper and that no safety hazard existed,
and then conveying that information to the miners.  Id.

     The judge further concluded that if the miners did not
believe the statements of Consol mine officials concerning their
communications with inspector Sanders, it was the miners'
obligation to contact Sanders themselves to confirm that the
preshift examination had been properly conducted.  Id.  The judge
discredited the testimony of the miners that they were prohibited
from using telephones at the mine without permission, and instead
credited testimony of Consol officials that there was no company
policy prohibiting the use of telephones by employees and that the
miners could have called the state inspector themselves.  Id. at
672.  The judge concluded that the miners' failure to either
accept the reported statements of Sanders or to verify those
statements by calling Sanders themselves rendered their continued
refusal to work unreasonable, and therefore unprotected.  Id.  He
also concluded that their suspension by Consol for their continued
work refusal did not violate the Mine Act.  Id.  Accordingly, the
judge dismissed the discrimination proceeding.  Id.

     The Commission granted the Secretary's petition for
discretionary review, which challenged the judge's finding that
the miners' work refusal was unreasonable and unprotected under
the Mine Act.

                                 II.

                             Disposition

A.  General Principles

     A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-800 (October 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981).  An 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 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 also
was motivated by the miner's unprotected activity and would have
taken the adverse action for the unprotected activity alone.  Id.;
Robinette, 3 FMSHRC at 817-18; see also Eastern Associated Coal
Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

     The Mine Act grants miners the right to complain of a safety
or health danger, but does not expressly grant the right to refuse
to work under such circumstances.  Nevertheless, the Commission
and the courts have inferred a right to refuse to work in the face
of a perceived danger.  See Secretary of Labor on behalf of Cooley
v. Ottawa Silica Co., 6 FMSHRC 516, 519-21 (March 1984), aff'd
mem., 780 F.2d 1022 (6th Cir. 1985); Price v. Monterey Coal Co.,
12 FMSHRC 1505, 1514 (August 1990) (citations omitted).  A miner
refusing work is not required to prove that a hazard actually
existed.  See Robinette, 3 FMSHRC at 812.  In order to be
protected, work refusals must be based upon the miner's "good
faith, reasonable belief in a hazardous condition."  Id.; Gilbert
v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989).  The complaining
miner has the burden of proving both the good faith and the
reasonableness of his belief that a hazard existed.  Robinette, 3
FMSHRC at 807-12; Secretary of Labor on behalf of Bush v. Union
Carbide Corp., 5 FMSHRC 993, 997 (June 1983).  A good faith belief
"simply means honest belief that a hazard exists."  Robinette, 3
FMSHRC at 810.  The purpose of this requirement is to "remove from
the Act's protection work refusals involving frauds or other forms
of deception."  Id.

     The Commission has held that, for a work refusal to be
protected under the Mine Act, a miner should first communicate his
safety concerns to some representative of the operator.  Secretary
of Labor on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126,
133 (February 1982).  If the miner expresses a reasonable, good
faith fear concerning safety, the operator has a duty to address
the perceived danger.  Metric Constructors, Inc., 6 FMSHRC 226,
230 (February 1984), aff'd sub nom. Brock on behalf of Parker v.
Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985);
Secretary of Labor on behalf of Pratt v. River Hurricane Coal Co.,
5 FMSHRC 1529, 1534 (September 1983).  Once it is determined that
a miner has expressed a good faith, reasonable concern about
safety, the analysis shifts to an evaluation of whether the
operator has addressed the miner's concern "in a way that his
fears reasonably should have been quelled."  Gilbert, 866 F.2d at
1441; see also Bush, 5 FMSHRC at 997-99; Thurman v. Queen Anne
Coal Co., 10 FMSHRC 131, 135 (February 1988), aff'd mem., 866 F.2d
431 (6th Cir. 1989).  Accordingly, a miner's continuing refusal to
work may become unreasonable after an operator has taken
reasonable steps to dissipate fears or ensure the safety of the
challenged task or condition.  Bush, 5 FMSHRC at 998-99.

B.  The Adequacy of Consol's Response to the Miners' Safety
    Concerns

     The Secretary contends the judge erred in finding that Consol
had taken adequate steps to allay the miners' safety concerns
because the operator's response was based upon third-party
statements made by the state inspector to a Consol official who
was not present at the mine and therefore was not available to
explain the situation to the miners directly.  S. Br. at 10-16.
The Secretary asserts that, in view of the concerns expressed by
the miners about a possible methane explosion and the other
troubling circumstances, Consol had an obligation to permit the
miners to speak directly to the state inspector to confirm that he
considered the preshift examination to have been properly
conducted.  Id. at 15-16.  In response, Consol does not challenge
the good faith of the miners in initially raising concerns about
the adequacy of the preshift examination, but contends that the
judge correctly determined its response to the miners' expressed
safety concerns was sufficient to allay their concerns and to
render their subsequent work refusal unreasonable and unprotected.
C. Br. at 4-9.  Consol argues the Secretary has failed to provide
any evidence to show that the miners had a justifiable basis for
refusing to believe the assurances of supervisory and managerial
personnel regarding the propriety of the preshift examination, or
that would warrant imposing an obligation on the company to
arrange for the miners to speak directly to the state inspector.
Id. at 5, 8-9.

     The dispositive issue in this case is whether Consol
addressed the concerns expressed by the three miners in a manner
sufficient to quell their fears, thereby rendering their
subsequent work refusal unreasonable and unprotected.[4]  We
conclude that substantial evidence does not support the judge's
finding that the actions taken by Consol officials in response to
the miners' safety concerns fulfilled its obligation to address
their fears resulting from the perceived inadequacy of the
preshift examination.[5]

     First, the judge failed to adequately consider evidence
indicating that the safety concerns raised by the miners were
serious in nature, involving the risk of an explosion due to
potential accumulations of methane gas in escapeways that would
have been detected by an inspection of those areas.  The record
indicates the three miners were concerned that if power was
restored to the mine when there was methane gas present in the
escapeways, a spark or electrical problem could cause an explosion
that could kill or injure them or their co-workers,[6] and that
they repeatedly conveyed these concerns to Consol management.[7]
Tr. 215-16, 219-21, 272-73, 275-77, 330-31, 332-33, 394, 557-58,
613, 649.  The seriousness of their concerns was corroborated to a
significant extent by inspector Sanders, who testified that the
type of fan stoppage which occurred at the Rend Lake Mine on April
9 would give rise to a legitimate concern about methane gas
accumulations in secondary escapeways, and that a potential hazard
exists in re-energizing electrical equipment in an area of methane
accumulation that has not been examined.  Tr. 155-56, 170-71.  The
seriousness of  the miners' concerns was further underscored by
Rend Lake Mine's status as a gassy mine.  Tr. 160, 219, 481, 536.

     Further, the information provided to the miners by supervisor
Moore concerning the propriety of the preshift examination
consisted of second and third-hand statements from various Consol
officials.  The supervisors were not present at the mine to
discuss the situation with the miners directly or explain to them
why the procedures followed were safe and that there was no danger
in restoring power to the mine.  The Commission has previously
determined that an operator did not respond sufficiently to allay
reasonable fears when its assurances of safety were lacking in
detail and unaccompanied by any satisfactory explanation.  Hogan,
8 FMSHRC at 1074.

     In addition, the judge did not address uncontradicted
testimony from the miners that inspector Sanders acknowledged that
his opinion - that examination of the escapeways was not required
during a preshift examination following a power outage -
represented a change in interpretation of applicable Illinois law.
Tr. 280, 378-79, 383.  This evidence suggests that the miners had
a reasonable basis for questioning statements attributed to state
inspector Sanders by Moore and various Consol officials (that the
preshift examination had been conducted in accordance with state
law since examination of escapeways was not required), and
requesting to discuss these matters directly with Sanders.  We
have held that the reasonableness of a miner's safety concern is
to be evaluated from the viewpoint of the miner at the time of the
work refusal, and that objective proof that an actual hazard
existed is not required.  Hogan, 8 FMSHRC at 1074; Pratt, 5 FMSHRC
at 1533-34; Robinette, 3 FMSHRC at 811-12.[8]

     Moreover, the record indicates that Consol could have easily
defused the situation, and resolved this safety dispute, by
acceding to the miners' requests to call Sanders to confirm the
statements attributed to him regarding the propriety of  the
preshift examination.  Moore did not deny that he refused the
miners' request to call Sanders, but only disputed their testimony
regarding when such a request was first made.  17 FMSHRC at 670-
71.  Moore testified that he denied their request because Wetzel,
a higher level management official, was already on his way to the
mine.  Id. at 671.  Moore admitted that he did not explore the
possibility that calling the inspector could have resolved the
safety issue.  Tr. 480-81.  Consol's inability to provide any
satisfactory explanation for Moore's refusal to call state
inspector Sanders, or to allow the miners to speak to Sanders
directly, when such a telephone call would have likely resolved
the situation, is a further indication that Consol's response was
not sufficient to address the miners' safety concerns, and
therefore did not render their work refusal unreasonable or
unprotected.

     Based on these considerations, we conclude that substantial
evidence in the record viewed as a whole does not support the
judge's finding that Consol fulfilled its obligation to address
the perceived danger communicated by the miners in a manner
sufficient to quell their fears, and render their subsequent work
refusal unreasonable and unprotected.[9]  We therefore reverse the
judge's conclusion that the disciplinary measures taken by Consol
against the miners for engaging in a work refusal did not violate
the Mine Act.  We remand the case for computation of a backpay
award and assessment of an appropriate civil penalty.

C.  The Miners' Obligation to Contact the State Inspector

     The Secretary also challenges the judge's determination that
if the miners did not believe the statements of mine officials
concerning their discussions with the state inspector, it was the
miners' obligation to contact the state inspector themselves to
determine whether the preshift examination had been properly
conducted.  See 17 FMSHRC at 671-72.  The Secretary argues that
the burden of contacting the state inspector to determine the
propriety of the preshift examination  properly resided with
Consol, rather than the three miners.  S. Br. at 15.  Consol
contends that the Secretary has failed to establish any basis for
imposing an obligation on the company to arrange for the miners to
speak directly to the state inspector.  C. Br. at 5.

              Given our conclusion that substantial evidence does not
support the judge's determination that Moore's statement was
sufficient to quell the miners' fears, we agree with the Secretary
that the judge erred by placing the burden on the miners to
contact the state inspector to resolve their safety concerns.
Established Commission precedent places the duty of addressing
such concerns on the operator.  See Gilbert, 866 F.2d at 1441;
Pratt, 5 FMSHRC at 1534.[10]

                                 III.

                              Conclusion

     For the foregoing reasons, we reverse the judge's
determination that the work refusal engaged in by the three miners
was unreasonable, and therefore unprotected under the Mine Act,
and consequently conclude that Consol's discipline of the miners
for their refusal to work violated Section 105(c)(1) of the Mine
Act.  We remand this matter to the judge for computation of a
backpay award and assessment of an appropriate civil penalty.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner


**FOOTNOTES**

     [1]:  Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 823(c), this Panel of three
Commissioners has been designated to exercise the powers of the
Commission.

     [2]:  Several mine examiners, including one of these three
examiners, had previously been informed after a mine stoppage
incident several weeks earlier, that state inspector William
Sanders had determined that an inspection of the secondary
escapeways was not required following a fan stoppage.  17 FMSHRC
at 668 n. 3.  There is no evidence, however, that Hannah, Mezo or
Payne were aware of this ruling at the time of their work refusal.
Id.

     [3]:  Section 105(c)(2) provides in part:

               Any miner . . . who believes that he had
          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.  Upon receipt of such
          complaint, the Secretary shall forward a copy
          of the complaint to the respondent and shall
          cause such investigation to be made as he
          deems appropriate. . . .  If upon such
          investigation, the Secretary determines that
          the provisions of this subsection have been
          violated, he shall immediately file a
          complaint with the Commission . . . alleging
          such discrimination or interference and
          propose an order granting appropriate relief.

30 U.S.C. � 815(c)(2).

     [4]:  The overwhelming record evidence demonstrates, and
Consol does not dispute, that the three miners initially had a
reasonable, good faith concern regarding the propriety of the
preshift examination and the safety of restoring power to the
mine, which they expressed to supervisor Moore.  The fact that
supervisor Moore initially indicated that he did not know whether
the preshift examination was proper or if inspection of the
escapeways was required further indicates the reasonableness of
the miners' safety concerns.

     [5]:  The Commission is bound by the terms of the Mine Act to
apply the substantial evidence test when reviewing an
administrative law judge's factual determinations.  30 U.S.C.
� 823(d)(2)(A)(ii)(I).  The term "substantial evidence" means
"such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion."  Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).  In
reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of
the evidence that supports a challenged finding.  Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951).

     [6]:  While Hannah did not work underground, and thus would
not himself have been exposed directly to the risk of death or
injury from an explosion that could have resulted from restoring
power when accumulations of methane gas were present, this does
not in itself render his work refusal unprotected.  The Commission
has held that, in appropriate circumstances, the Mine Act extends
protection to a miner who refuses to perform an assigned task due
to the danger posed to the health or safety of another miner.
Secretary of Labor 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 (4th Cir. 1986).

     [7]:  The three complainants had never previously raised
safety concerns or refused a work order, and had not been subject
to any prior disciplinary action.  Tr. 255-56, 280, 341-42, 492,
521-22, 559, 673.  This evidence indicates that these three miners
were not likely to raise their safety concerns lightly, or in bad
faith.  See Secretary of Labor on behalf of Hogan v. Emerald Mines
Corp., 8 FMSHRC 1066, 1072 (July 1986) (work refusal found
protected where there was no evidence in miners' personnel history
"suggesting a likelihood of pretext or ulterior motive for their
actions"), aff'd mem., 829 F.2d 31 (3d Cir. 1987).

     [8]:  That a perceived hazard is later found not to
constitute an actual violation of a health or safety standard does
not vitiate the reasonableness of a miner's work refusal.  Hogan,
8 FMSHRC at 1072 n.3, 1073 n.4.

     [9]:  To support his conclusion that Consol had "fulfilled
its obligation to address the perceived danger . . . communicated
by the [miners]" by contacting state inspector Sanders, the judge
cited Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December
1993).  17 FMSHRC at 672 n.4.  In Braithwaite, however, we
concluded that the miner had failed to adequately communicate his
safety concern to the operator, and therefore we had no need to
address the adequacy of the operator's response.  15 FMSHRC at
2464-65.

     [10]:  Because we conclude that Consol did not adequately
address the safety concerns raised by the three miners, and that
the judge therefore erred in shifting to the miners the burden of
establishing the adequacy of Consol's actions to quell the miners'
fears, we find it unnecessary to address the Secretary's challenge
to the judge's decision to credit the testimony of Consol
officials that there was no company policy prohibiting the use of
telephones by employees and that the miners could have used the
phone to call Sanders directly to confirm that inspection of the
escapeways was not required as part of the preshift examination.
S. Br. at 16-21.  As Consol in effect concedes (C. Br. at 10), the
issue of whether the miners could have called the state inspector
on their own has no bearing on the dispositive issue in this case
- the adequacy of Consol's response to the miners' safety concerns
at the time of their work refusal.