Reynolds Metals Company

Plain-English summary

Michael P. Damron alleged that Reynolds Metals discharged him for refusing to operate a ball mill near hazards involving falling objects and a metal detector. On remand from an earlier Commission order, Judge James A. Broderick credited the general supervisor's testimony that Damron was authorized to operate the mill from a safe distance and found that the foreman's later instruction included the same authorization. The judge concluded that Damron's refusal was not reasonable and was not based on a good-faith belief that the work was hazardous. He dismissed the discrimination complaint.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination complaint was dismissed on remand.
• Key point: A refusal to perform assigned work is not protected when the operator authorized the miner to perform it from a safe distance and the refusal was not based on a good-faith safety concern.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

MICHAEL P. DAMRON, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. CENT 89-131-DM
REYNOLDS METALS COMPANY,
RESPONDENT MD 89-04

                                    Sherwin Plant

                           DECISION ON REMAND

Appearances: R. Michael LaBelle, Esq., Powers & Lewis,
Washington, D.C., for
Complainant;
Jean W. Cunningham, Esq., Richmond, Virginia, for Respondent.
Before: Judge Broderick
On April 16, 1991, the Commission remanded the case to me,
(1) for further findings and analysis of the testimony of
Complainant Michael Damron and his foreman Arlon Boatman
concerning Boatman's order to operate the mill on September 7,
1988; and (2) for an explanation of my finding that General
Supervisor Glenn Reynolds on September 5, 1988, authorized Damron
to run the mill from a safe distance. 13 FMSHRC 535 (1991).
Following the remand counsel for Complainant and Respondent filed
briefs which I have carefully considered in making this decision
on remand. I will first address the question of the
Damron-Reynolds conversation.
I
When the protective shelter was torn down, Damron protested
the action to Reynolds, the general supervisor in the
precipitation and calcination areas of the plant. A safety
procedure meeting was called and convened on September 2, 1988,
which addressed some of the safety complaints advanced by Damron
and the Union. On September 5, Damron approached Reynolds and
stated that the company had agreed to erect an overhead plywood
shelter for the ball mill. Reynolds denied that such an agreement
had been made. On page 4 of my decision I quoted Reynolds'
testimony that he told Damron that "if he had any real safety
concerns regarding the operation of the belt line, without that
temporary shed, that he should go outside the building, down the
tunnel,

and operate the belt standing in that position." On rebuttal
Damron denied that Reynolds had given him the "option of working
down in the pit next to the conveyor belt." 12 FMSHRC 417-418
(1990).
Neither of these statements is inherently incredible.
Because they are contradictory, however, only one can be
credited. I chose to credit the testimony of Reynolds. It seemed
(and still seems) highly unlikely that he would manufacture out
of the whole cloth a rather detailed conversation including the
phrase "down the tunnel." I therefore reiterate my finding of
fact that Reynolds on September 5, 1988, gave Damron permission
to operate the mill away from the building.
II
There is no dispute that Foreman Boatman, who was not at the
safety meeting, told Damron on September 6, that he could operate
the mill by turning the belt switch on, and stepping back to
monitor the belt from a distance where he would not be subject to
the possible hazards of falling objects. Damron protested that
metal objects could get by the metal detector and damage the
hammer mill. "If one of them things would have gotten by, gone
into the hammer mill, it would have tore that whole thing up. . .
so that was not a very acceptable way for me to run my job
properly" (Tr. 225). Boatman told Damron (and I find as a fact
that he did tell him) "that should anything go through the
detector, if for any reason it failed and we did not get metal in
the mill, that it would be my responsibility" (Tr. 352). Damron
did not work on the mill on September 6, because of problems in
the tray area. In my original decision, I found that Respondent
erected a guardrail on the upper floor and agreed to erect a
metal shed over the area where the magnet was located.
When Damron reported for work on September 7, Boatman
directed him to run the ball mill. Boatman did not change or
revoke the authorization given the previous day permitting Damron
to monitor the belt from a distance. His testimony, which I
quoted on page 5 of my decision, that ". . . I gave him the
direct order to operate the facility under normal conditions,
standing where needed to, if he needed to stand at the metal
detector, if he needed to clean conveyor belts, tail pulleys or
whatever, it would be the general operator, the regular operation
of the facility" must be considered together with the testimony
concerning the conversation on the previous day, which I quoted
above. Taking into consideration the two conversations, I
conclude that Boatman's order to run the mill included his
authorization to monitor the belt from a position away from the
building, and that Damron understood this. His refusal to comply
with the order resulted more from his belief that the mill could
not properly be operated in that fashion, rather than because of
any safety concerns. This conclusion is reinforced by my finding

above that Reynolds authorized Damron to operate the belt away
from the building. On the basis of these findings, I conclude
that Damron's work refusal was not reasonable, nor did it result
from a good faith belief that the work he was ordered to perform
was hazardous.
I conclude therefore that Respondent's action in discharging
Complainant for refusal to obey an order to perform on work
September 7, 1988, was not in violation of Section 105(c) of the
Act.
Accordingly, the complaint and this proceeding are
DISMISSED.
James A. Broderick
Administrative Law Judge