Reynolds Metals Company

Plain-English summary

Michael P. Damron was discharged after refusing to operate a ball mill because he believed falling objects and spilled caustic liquid made the work unsafe. The judge found that falling objects had created an objectively real hazard and that Damron had reasonably raised his safety concerns. But Reynolds gave him permission to operate the mill from a safer location while permanent protection was being installed. The judge therefore found that the refusal was not made in good faith and that the discharge did not violate the Mine Act's discrimination provision. The complaint and proceeding were dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The discharge was found not to violate section 105(c), and the complaint was dismissed.
• Key point: A work refusal is not protected when the operator addresses the perceived hazard and the miner does not show a continuing good-faith belief that the work remains unsafe.

Full text (FMSHRC public release)

Page 2

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

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

                              DECISION

Appearances: Michael LaBelle, Esq., Powers and Lewis,
Washington, D.C., for Complainant;
Jean W. Cunningham, Esq., Richmond, Virginia,
for Respondent.

Before: Judge Broderick

STATEMENT OF THE CASE

 Complainant contends that he was discharged by Reynolds

Metals Company (Reynolds), on September 7, 1988, from his job as
a hydrate area helper because he refused to perform work that he
reasonably and in good faith believed to be dangerous, and that
his refusal was protected under the Federal Mine Safety and
Health Act of 1977 (the Act). Reynolds contends that Complainant
was discharged for failure to obey a direct order, and that the
task he was ordered to perform was not dangerous. Pursuant to
notice, the case was heard on November 28 and 29, in Corpus
Christi, Texas. Richard W. Spencer, Robert H. Lehman, Dalma
Edward Rogers, Pete Zamora, Guy Asher, Paul Bucey, Michael P.
Damron, and Bobby Tucker testified on behalf of Complainant.
Thomas Glenn Reynolds, Arlon Boatman, Amos Stanley Millsap,
Kennedy Wayne Haley, Bobby Joe Sasser and Darrell M. Harriman
testified on behalf of Reynolds. Both parties have filed post
hearing briefs. I have considered the entire record and the
contentions of the parties, in making the following decision.

FINDINGS OF FACT

 At all times pertinent to this proceeding Reynolds was the

owner and operator of an alumina plant in Corpus Christi, Texas,
known as the Sherwin Plant. The plant processes bauxite into
aluminum ore, called alumina.

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Prior to September 7, 1988, Complainant was employed as a laborer
at the Sherwin plant for more than 9 years. In 1988, he worked as
a hydrate area helper. Among the duties to which he was assigned
was the operation of a ball mill which pulverized scale coming
from the precipitation area. The scale, taken from the alumina
tanks, is fed on to a conveyor belt from a hopper, and travels up
the belt to the ball mill which crushes it to powder. The ball
mill operator is required to maintain the conveyor belt with a
head and a tail pulley at either end, and to remove foreign
objects from the belt. A magnet is affixed to the belt, at about
its midpoint, and the belt shuts down automatically when any
metallic object passes under the magnet. The ball mill operator
is required to remove and discard the metal, and restart the
belt. He is also required to remove and discard other nonmetallic
foreign objects from the belt to prevent them from passing into
the ball mill. Two bins are provided near the magnet where the
metal and nonmetal objects are deposited. A majority of the mill
operator's work time is performed at or near the magnet. The ball
mill and belt are located outside and immediately below the
operating floor where the kilns are located. The operating floor
is open and is approximately 30 feet above the ground where the
ball mill is operated.

 In about 1984, the then operator of the ball mill, Robert

Lehman, asked to have overhead protection erected because of
falling objects coming from the operating floor. These included
filter cloths, caustic metal, bolts, valves and trash. About two
or three weeks after this request, a 6-foot high scaffold was
erected, 6 feet square, covered with three 2 x 12 boards and a
piece of plywood on top of the boards. Lehman later enclosed the
area to keep out the cold, the caustic and the dust. After about
two years, Reynolds tore down the shelter because "it was an
eyesore and they didn't want visitors to see it." (R. 54).
However, it was replaced by a new similar shelter after two or
three days. This remained in place until September 1988.

 During the period from 1984 until September 1988, on

numerous occasions large cloth filters weighing in excess of 100
pounds were dropped from the operations floor to the ground below
by operations employees. Metal rods, pieces of scaffold boards,
bolts, tools, and pieces of corrugated metal siding also fell or
were dropped; liquid hydrate spilled from the upper floor to the
ball mill area. The ball mill operators were aware of these
occurrences and at least on some occasions reported them to
supervisory personnel. Therefore, I find that Reynolds was aware
that objects fell or were thrown from the calcinator floor or the
floor where the numbers 8 and 9 kilns were located, to the ground
below in the area of the ball mill.

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On August 31, 1988, a regular Mine Safety and Health
Administration (MSHA) inspection took place at the Sherwin plant.
The inspector found missing guards on the two tail pulleys on the
conveyor belt of the ball mill. A section 104(d) order was issued
because Respondent had been cited previously for the same
violation. Complainant Damron was operating the ball mill at the
time and was inside the shelter. The MSHA inspector pointed out
that an electrical extension cord running to the shelter was not
properly grounded. He also commented that the shelter area was
dirty, and the chair on which Damron sat was broken. No citations
were issued for any conditions in the shelter. The following day,
September 1, the shelter was taken down by Respondent.

 On the day the shelter was torn down, Complainant protested

the action to Glenn Reynolds, the General Supervisor in the
precipitation and calcination areas of the plant. He also
contacted Paul Bucey, the Union Safety Committee Chairman and
requested a safety procedure meeting. Such a meeting was held on
Friday, September 2. Complainant and the Union representatives
contended that a safety issue was involved because of objects
falling or being thrown from the upper floors, and caustic liquid
spilling on to the area where the ball mill operator worked. The
company representatives agreed to erect a barrier against the
handrail of the upper floor and to erect a metal shed over the
area where the magnet was located to protect the ball mill
operator. Complainant sought a wooden overhead structure until
the metal shed could be completed. Complainant testified that the
company agreed to this proposal, but the company representatives
testified that they specifically denied the request on the ground
that it would "create more hazards then what we take care of."
(R. 382). There may have been a misunderstanding of what was
agreed to, but I find as a fact that the company did not accede
to Complainant's request that a temporary wooden overhead
structure be erected over the ball mill pending the erection of
the metal shed. The company did agree not to operate the mill
until the guardrail barrier was erected. On Monday, September 5
(Labor Day), a number of sheets of plywood were stacked up inside
the handrail of the floor above the ball mill. The ball mill
operator (Robert Lehman) was instructed to attach the sheets of
plywood to the handrail with pieces of wire. No other overhead
protection was in place. Lehman operated the mill by stepping
away from the belt 15 or 20 feet. Operating from this position he
was unable to remove nonmetallic foreign objects from the belt.
Complainant worked on the next shift and was told by his foreman
Arlon Boatman that he was going to have to run the mill. Boatman
had not been present at the safety procedure meeting, and was not
aware of what had been agreed upon. He assigned Complainant to
work on certain problems in the "tray area," and he discussed
with management people what had taken

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place at the safety meeting. At the beginning of his shift on
Tuesday, September 6, Complainant again worked on the trays.
During discussions between Boatman and Complainant, Boatman told
Complainant he would direct the overhead operators to be careful
in hosing down the upper floor and to inform Boatman if they had
to remove objects from the floor. He also told Complainant that
he could operate the mill by turning the belt switch on, and then
stepping back away and monitoring the belt from a distance.
Complainant protested that he could not operate it in that manner
because the metal detector does not always stop the belt when
metal objects come up, and this could result in severe damage to
the mill. Boatman told Complainant "that should anything go
through the detector, if for any reason it failed and we did get
metal in the mill, that it would be my responsibility." (R. 352).
Boatman explained that a metal shed was being constructed which
would be placed over the metal detector area. Because of the need
for workers in the tray area, Complainant continued on that job
and did not run the ball mill on Tuesday, September 6 (he worked
a double shift 4:00 p.m. to midnight and 12:00 to 8:00 a.m.,
Wednesday). On Wednesday, September 7, on the day shift, Lehman
was discharged for refusing to run the ball mill.

 On Wednesday, Complainant reported to work on the afternoon

shift. Boatman gave him a direct order to run the ball mill.
Complainant refused because "I feel it's unsafe." (R. 231).
Respondent gave him a suspension with intent to discharge.
Complainant filed a grievance under the union contract which
ultimately resulted in an arbitration proceeding. As a result of
the arbitration decision, Complainant was reinstated without back
pay.

 General Superintendent Reynolds was at the Plant on Monday,

September 5, because of severe tray problems. He was approached
by Complainant Damron who told him that the company had agreed at
the safety procedure meeting to erect a plywood overhead shelter
for the ball mill. Reynolds denied that the company made such an
agreement, and told Complainant that a metal structure was being
constructed. Reynolds further testified:

 And I told him 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. And that as metal came up the belt, he could
 shut the belt down and remove it. (Tr. 319).

 On rebuttal, Complainant referred to this testimony:

 Q. Mr. Damron, did you hear testimony earlier by
 Mr. Reynolds that indicated that he had given you the

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option of working down in the pit next to the conveyor
belt of the ball mill?

   A. Yes, I heard what he said. It's not true, he never
   given [sic] me any options, just to do it or else.

   *     *     *

   Q. Did anybody other than Mr. Boatman, ever suggest to
   you any other way of operating the ball mill, other than
   standing by the magnet?

   A. No, they didn't. Nobody but Mr. Boatman. (R.460).

 I find as a fact that Reynolds did tell Complainant that he

could run the mill away from the building, "down the tunnel."

 Boatman was asked whether on Wednesday when Complainant was

terminated he would have permitted Complainant to operate the
mill "from outside the building." He answered:

   I would have allowed him to operate that mill as I had
   directed him to, which would have been under normal
   conditions, as we had been operating . . .

   Q. And had he objected to working or standing at the
   magnet, what about that?

   A. No. Because the situation, as far as me as a
   representative of the company, and as a supervisor, that
   if I gave him the direct order to operate the facility
   under normal conditions, standing where he 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. (R. 353).

 This testimony is ambiguous on the issue of whether Boatman

would have permitted Complainant to monitor the belt from a
distance--away from the building as he indicated on Monday,
September 5. However, he did not withdraw his authorization given
two days before that Complainant could have operated the ball
mill away from the belt. Nor did Complainant testify that he
understood that it had been withdrawn.

 Subsequent to Complainant's discharge (within a matter of a

few days), the permanent metal barrier was in place inside the
handrail of the operating floor and the metal shed was erected
over the magnet area where the ball mill operator worked.

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ISSUES

 1. Was Complainant's work refusal, for which he was

discharged, protected activity under the Act?

 2. If so, to what remedies is he entitled under the Act?

CONCLUSIONS OF LAW

                             I

 Complainant and Respondent are protected by and subject to

the provisions of section 105(c) of the Act. Complainant is a
miner; Respondent is a mine operator. I have jurisdiction over
the parties and subject matter of this proceeding.

                             II

 In order to establish a prima facie case of discrimination

under the Act, a complaining miner must prove that he was engaged
in protected activity and that the adverse action complained of
was motivated in any part by that activity. In order to rebut the
prima facie case, the operator must show either that no protected
activity occurred or that the adverse action was not motivated in
any part by the protected activity. Secretary/Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other
grounds sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary/Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (1981). Secretary/Wayne v. Consolidation Coal
Co., 11 FMSHRC 483 (1989).

                            III

 A refusal to perform work is protected activity under the

act if the miner has a good faith, reasonable belief that the
work he refuses to perform is hazardous. The burden of proof is
on the miner to establish both the good faith and the
reasonableness of his belief that a hazard existed. Robinette,
supra; Secretary/Bush v. Union Carbide Corporation, 5 FMSHRC 993
(1983); Biddle, Means and Levine, Protected Work Refusals Under
Section 105(c)(1) of the Mine Safety and Health Act, 89 W.Va. L.
Rev. 629 (1987).

                             IV

 The reasonableness of the miner's belief in the hazardous

nature of the work is not determined by whether a hazard
objectively exists, but by the miner's reasonable perception of a
hazard. Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982);
Secretary/Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529
(1983). Respondent's witnesses here denied that there was a
safety hazard

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resulting from falling or thrown objects to a ball mill operator
without overhead protection. But the weight of evidence
contradicts Respondent's position. I have found as a fact that on
numerous occasions objects fell or were dropped or spilled from
the operating floor to the ball mill area. A hazard existed
objectively. The extent of the hazard, that is, the frequency or
likelihood of falling objects landing in the ball mill area is a
matter of dispute. From the perspective of the ball mill
operators, including Complainant, the hazard was real, and their
perception of the hazard was reasonable.

                             V

 The miner's work refusal must be made in the good faith

belief that a hazardous condition obtained. Good faith "simply
means honest belief that a hazard exists." Robinette, supra, at

810. Good faith requires the miner to inform the mine operator of
     his belief in the safety hazard to give the operator the
     opportunity to correct the condition. Secretary/Dunmire and Estle
     v. Northern Coal Co., 4 FMSHRC 126 (1982). See also, Gilbert v.
     FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989).

     Complainant's safety concerns were communicated in a formal
     safety meeting with Respondent. Respondent addressed the concerns
     by agreeing to put up a permanent barrier along the handrail of
     the operating floor above the ball mill and to erect a metal shed
     for the mill operator at or near the magnet. Although neither of
     these were completed at the time of Complainant's work refusal
     and discharge, a plywood barrier was in place at the handrail,
     and a permanent metal barrier as well as a metal shed were being
     constructed. Complainant knew that these would be erected in a
     few days and would provide him more protection than the shed
     which had been torn down. Superintendent Reynolds told
     Complainant that he could operate the mill from "down in the
     tunnel," where he would not be exposed to falling objects.
     Foreman Boatman told him he could operate from outside the belt
     area, and that he (Boatman) would take the responsibility if
     metal objects got into the mill.

     Did these instructions, coupled with the erection of a
     barrier at the handrail overhead, and the planned erection of a
     metal shed, address the perceived hazards so as to make the work
     refusal in bad faith? Ordinarily a ball mill operator, wherever
     he stations himself at the beginning of his shift, must spend a
     substantial part of his time at or near the magnet where the belt
     control is located. However, Respondent Reynolds through
     Superintendent Reynolds and Boatman gave Complainant clear
     permission to operate the mill from outside the area of danger
     during the short period while the shed was being erected.
     Respondent addressed Complainant's reasonable fear of a hazard,
     and his refusal to work thereafter is not shown to be in good
     faith.

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I conclude therefore that Complainant Damron's refusal to operate
the ball mill on September 7, 1988, was not based on a
reasonable, good faith belief that the work was hazardous.
Respondent's action in discharging him was not in violation of
section 105(c) of the Act.

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Complainant's discharge on September 7, 1988, was not in

violation of section 105(c) of the Act.

   2. The Complaint and this proceeding are DISMISSED.

                                      James A. Broderick
                                      Administrative Law Judge