Gilbert v. Sandy Fork Mining Company, Inc.

Plain-English summary

John A. Gilbert and the Secretary of Labor alleged that Sandy Fork Mining discharged Gilbert after he refused work he reasonably believed was hazardous. On remand from the D.C. Circuit, the Commission held that the record supported Gilbert's good-faith, reasonable safety concern and that the Commission's newer rule for private discrimination complaints could not be applied retroactively to him. The Commission reversed the earlier finding that Sandy Fork had not discriminated against Gilbert, reinstated the discrimination complaints, and remanded the case to the judge for the remaining remedial issues.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and (c)(3); 29 C.F.R. § 2700.40(b)
• Outcome: The prior decision was reversed, Gilbert's discrimination complaints were reinstated, and the case was remanded for remedial proceedings.
• Key point: A miner's good-faith refusal of work reasonably believed to be hazardous is protected, and a new agency rule generally should not be applied retroactively when the affected party relied on the prior rule.

Full text (FMSHRC public release)

CCASE:
JOHN GILBERT V. SANDY FORK MINING,
MSHA V. SANDY FORK MINING
DDATE:
19900216
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                           February 16, 1990

JOHN A. GILBERT

v.              Docket No. KENT 86-49-D

SANDY FORK MINING COMPANY, INC.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHN A. GILBERT

v. Docket No. KENT 86-76-D

SANDY FORK MINING COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

             DECISION

BY THE COMMISSION:

This discrimination proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("the Mine
Act" or "Act"), is on remand to us pursuant to an opinion of the United
States Court of Appeals for the District of Columbia Circuit reversing
our prior decision in this matter. John A. Gilbert v. FMSHRC, 866 F.2d
1433 (1989), rev'@. John A. Gilbert v. Sandy Fork Mining Co., 9 FMSHRC
1327 (August 1987). This case involves discrimination complaints filed
against Sandy Fork Mining Co., Inc. ("Sandy Fork") by complainant John A.
Gilbert on his own behalf (Docket No. KENT 86-49-D) and by the Secretary
of Labor on Mr. Gilbert's behalf (Docket No. KENT 86-76-D). Both
complaints are based on the same set of circumstances and allege that

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Sandy Fork discharged Gilbert in violation of section 105(c)(1) of the
Mine Act, 30 U.S.C. $ 815(c)(1), because of his refusal to perform work
that he believed to be hazardous. In his decision below, Commission
Administrative Law Judge Gary Melick denied the Secretary's motion to
dismiss Gilbert's own discrimination complaint on

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jurisdictional grounds and concluded that Sandy Fork had not discriminated
against Gilbert in violation of the Act. 8 FMSHRC 1084 (July 1986)(ALJ).

The Commission subsequently granted petitions for discretionary

review filed by both Gilbert and the Secretary. In our prior decision,
we affirmed on substantial evidence grounds the judge's conclusion that
Sandy Fork had not discriminated against Gilbert in violation of the Act,
but we reversed the judge's denial of the Secretary's motion to dismiss
Gilbert's own complaint. 9 FMSHRC 1327 (August 1987). Gilbert appealed
to the Court, which reversed and remanded with instructions to the
Commission to consider certain issues. In light of the Court's decision,
we now decide those issues, sustain Gilbert's complaints, and remand this
proceeding to the judge for resolution of remedial matters.

                  I.

 In upholding the judge's conclusion that Gilbert had not been

illegally discharged, we determined that, even assuming that Gilbert
had engaged in a protected work refusal on August 6, 1985, Sandy Fork
did not take any adverse action against him because of that work refusal.
9 FMSHRC at 1334-35. We further found that substantial evidence supported
the judge's determination that at the time of his August 7 work refusal,
Gilbert did not entertain a reasonable, good faith belief that he would
be required to work under hazardous conditions. 9 FMSHRC at 1335. In
reaching that conclusion, we noted that "Sandy Fork's supervisors and
managers did not react to Gilbert precipitately or manifest retaliatory
intent." 9 FMSHRC at 1335. Accordingly, we unanimously affirmed on
substantive grounds the judge's dismissal of Gilbert's complaints.

 In addition, a majority of the Commission held that the judge had

erred in denying the Secretary's motion to dismiss Gilbert's individual
complaint on jurisdictional grounds. The majority concluded that the
express language of section 105(c)(3) of the Mine Act provides that a
complainant may file a private action only after the Secretary informs
the complainant of her determination that a violation has not occurred.
30 U.S.C. $ 815(c)(3); 9 FMSHRC at 1337. The majority declared invalid
the clause in former Commission Procedural Rule 40(b) permitting the
filing of individual actions when the Secretary has not made a
determination of violation within 90 days. 1/ The Commission therefore

1/ Former Commission Procedural Rule 40(b) provided:

  A complaint of discharge, discrimination or
  interference under section 105(c) of the Act, may
  be filed by the complaining miner, representative

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 of miners, or applicant for employment if the
 Secretary determines that no violation has occurred,
 or if the Secretary fails to make a determination
 within 90 days after the miner complained to the
 Secretary.

29 C.F.R. $ 2700.40(b)(1986). This rule was amended on November 23, 1987,
to delete the underlined phrase.

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reversed the judge's denial of the Secretary's motion and dismissed
Gilbert's private discrimination complaint. 9 FMSHRC at 1338-39.
Commissioners Doyle and Nelson dissented from this aspect of the decision.
They found the Mine Act to be silent as to the consequences of the
Secretary's failure to make a determination of discrimination within
the 90-day statutory period, that former Rule 40(b) was a reasonable
construction of the Mine Act, and that it should not be invalidated.
9 FMSHRC at 1340-44.

The Court reversed the Commission's decision with respect to the

merits of Gilbert's discrimination complaints and also with respect to
the retroactive application to Gilbert of the Commission majority's
holding that individual complaints may be brought under section 105(c)(3)
only after the Secretary rejects a miner's initial complaint. The Court
remanded to the Commission questions in both areas for further
consideration. 866 F.2d at 1434-35.

                 II.

A. The merits of Gilbert's discrimination complaint

We note initially that the Court endorsed several important

principles of Commission discrimination law. Citing Secretary on behalf
of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June 1983) and Secretary
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981), the Court agreed with the Commission that section 105(c) of the
Act "protects a miner's right to refuse work under conditions that he
reasonably and in good faith believes to be hazardous." 866 F.2d at 1439.
The Court subscribed as well to the Commission's view that in analyzing
whether a miner's fear is reasonable, the perception of a hazard must be
viewed from the miner's perspective at the time of the work refusal.
866 F.2d at 1439, citing Secretary on behalf of Pratt v. River Hurricane
Coal Co., 5 FMSHRC 1529, 1533-34 (September 1983) and Haro v. Magma
Copper Co.. 4 FMSHRC 1935, 1944 (November 1982). The Court also approved
Commission holdings that to be accorded the protection of the Act in
engaging in a work refusal, a miner need not objectively prove that an
actual hazard existed and, further, that a good faith belief simply means
an honest belief that a hazard exists. Id., citing Secretary on behalf
of Hogan & Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1072-73 (July
1986); Pratt, supra, 5 FMSHRC at 1533-39; Haro, supra, 4 FMSHRC at 1943-44;
and Robinette, supra, 3 FMSHRC at 810.

To determine whether substantial evidence supported the Commission's

conclusion that Gilbert's August 7 work refusal lacked the required basis
of a good faith, reasonable belief in a hazard, the Court adopted

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Commission guidelines for assessing a miner's "good faith." 866 F.2d
at 1440. First, the Court indicated that, where reasonably possible, a
miner refusing work should ordinarily communicate or attempt to communicate
to some representative of the operator his belief in the safety or health
hazard at issue and, second, when a miner has expressed a reasonable, good
faith fear in a hazard, the operator has a corresponding obligation to
address the perceived danger. 866 F.2d at 1440, citing SecretarY on behalf
of Dunmire & Estle v. Northern Coal

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Co., 4 FMSHRC 126, 133 (February 1982); Bush, supra, 5 FMSHRC at 997-98;
Secretary v. Metric Constructors, Inc., 6 FMSHRC 226 (February 1984),
aff'd sub nom. Brock ex rel. Parker v. Metric Constructors Inc., 776 F.2d
469 (llth Cir. 1985); Hogan & Ventura, supra, 8 FMSHRC at 1074. Applying
these principles, the Court found that the record did not support the
Commission's determination that on August 7 Gilbert did not entertain a
good faith, reasonable belief that he would be required to work in a
hazardous area. 866 F.2d at 1140-41.

The Court presented its view of the evidence. Among other things,

the Court noted that Gilbert was working in an area of the mine in which it
appeared to him that the prevailing roof conditions placed his safety in
jeopardy; that he left work on August 6 with management's permission; that
when he returned to work on the morning of August 7 he learned from other
miners of a roof fall that had occurred overnight in the area where he had
been working; and that when he inquired of management representatives what
had been done to address the unsafe conditions, they "refused to address
his concerns." 866 F.2d at 1440-41. The Court found that Gilbert's
"initial fears" on August 6 were reasonable and that on August 7 "he made
a good faith attempt to communicate his reasonable fears to management."
866 F.2d at 1441.

The Court, however, stopped short of outright reversal of the

"Commission's decision, stating that it was not "clear" whether "management
addressed Gilbert's concerns [on the morning of August 7] in a way that his
fears reasonably should have been quelled." 866 F.2d at 1441. See also
866 F.2d at 1441 n.11. The Court explained:

  In other words, did management explain to Gilbert
  that the problems in his work area had been corrected?
  Or did management indicate to Gilbert that he would be
  assigned to another area in the mine that was free of
  safety problems? Or did management indicate to Gilbert
  that the situation was unsettled, and that he should
  wait five hours (until the start of his assigned shift)
  before inquiring further about safety conditions in
  his area? These questions must be answered by the
  Commission in order for it to determine whether the
  management at Sandy Fork reasonably addressed Gilbert's
  fears on the morning of August 7. If management
  effectively "stone-walled" Gilbert in responding to
  his inquiries on the 7th, then his continued fears
  regarding work hazards were reasonable, and his
  refusal to return to work cannot be viewed as either
  unreasonable or in bad faith.

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866 F.2d at 1441.

There is no question on this record that mine management was aware

of the roof problems in the area where Gilbert was working and was taking
steps to address the problems. As the judge found, and as we noted, when
Gilbert brought the conditions that he perceived to be hazardous to the
attention of his section foreman on August 6, the

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foreman responded that he would add more cribs to support the roof and that
he would stand by and watch while coal was cut. 8 FMSHRC at 1089; 9 FMSHRC
at 1330. Gilbert then went outside the mine and repeated his concerns to
the general mine foreman, who told Gilbert that he would not insist that he
resume work and that Gilbert should go home and return the next day to meet
with Phipps, the general manager, and Begley, the mine superintendent.

When Gilbert returned on August 7, Phipps and Begley were underground
conducting an examination of the roof, and Gilbert was told by another
miner that a roof fall had occurred in the mine during the night. After
Phipps and Begley emerged from the mine, Gilbert talked separately with
each of them.

 Gilbert talked first with Phipps. Both Gilbert and Phipps testified

that Gilbert told Phipps that he was afraid of the roof. Tr. I 39.40;
III 89-92. Gilbert asked Phipps what management was going to do about the
roof and how the roof would be supported. Tr. II 39-40. Gilbert testified
that Phipps responded that "they [were] supporting what they could."
Tr. 139-40. Similarly, Phipps stated that "primarily" he told Gilbert
that the mine roof was all the top that the mine had. Tr. II 127. Both
Phipps and Gilbert testified that Phipps asked Gilbert if he had any ideas
for dealing with the roof (Tr. I 40; III 91), and Gilbert testified that he
offered a few suggestions (Tr. I 40). Phipps further stated that he did
not try to "convince" Gilbert that the roof was safe and that, although
management was pursuing several approaches for alleviating the roof
problems, he did not discuss those initiatives with Gilbert at that time.
Tr. III 127-28.

Gilbert then engaged Begley in a similar brief conversation. Gilbert

and Begley also agreed that Gilbert told Begley that he was afraid of the
roof. Tr. I 40-41; II 109. Gilbert testified that Begley replied that
"that's all they can do ... that's all the top they [had]." Tr. I 41.
Begley stated that he did not recall telling Gilbert anything about the top
on the morning of August 7. Tr. II 111-12. Begley's recollection was that
he and Gilbert discussed Gilbert's possible job transfer rather than roof
problems. Id. After these two conversations, Gilbert left the mine.

 The Court rejected the judge's and Commission's determinations that

in leaving the mine at this point, some five hours before his shift was
scheduled to begin and before he had been told the specific area of the
mine to which he would be assigned, Gilbert acted precipitately and
unreasonably. 866 F.2d at 1140. Instead, the Court has directed us to
determine whether management explained to Gilbert that the problems in his
general work area had been corrected, or had indicated that he would be
assigned to another area of the mine free of safety problems, or had

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suggested that the situation was unsettled and that he should wait until
the start of his assigned shift before inquiring further about safety
conditions in his area. 866 F.2d at 1441.

Based on the testimony summarized above, we conclude that Gilbert's

safety concerns were not addressed in a manner sufficient to reasonably
quell his fears. Given the Court's belief that Gilbert did

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not act precipitately and its finding that he entertained a good faith,
reasonable belief in a hazard, we are constrained to conclude that
Gilbert's departure from the mine on August 7 constituted a discriminatory
discharge in violation of section 105(c)(1) of the Act. Accordingly, the
judge's conclusion to the contrary is reversed.

B. Retroactive application of changed Commission policy

As noted, the Commission majority concluded that the judge erred in

denying the Secretary's motion to dismiss Gilbert's private complaint. In
essence, the majority held that the provision of former Commission Rule
40(b) permitting a miner to file a discrimination complaint prior to the
Secretary's determination that no discrimination had occurred conflicted
with what the majority viewed as the express enforcement schemes set forth
in section 105(c) of the Act and, accordingly, was invalid. The Court took
issue with the majority's retroactive application to Gilbert of this new
Commission policy. The Court did not consider the prospective validity of
the new policy but, rather, held that the majority had not explained the
basis for retroactively applying the new policy to Gilbert. 866 F.2d
at 1441-42.

Citing Loc. 900, Int'l U. of Elec. Wkrs. v. NLRB, 727 F.2d 1184,

1194-95 (D.C. Cir. 1985) and Retail, Wholesale & Dept. Store U. v. NLRB,
466 F.2d 380, 390 (D.C. Cir. 1972), the Court identified five factors
that are to be applied in determining whether a new rule developed in an
adjudication should be given retroactive effect. Those factors are:

  (1) whether the particular case is one of first
  impression, (2) whether the new rule represents an
  abrupt departure from well established practice or
  merely attempts to fill a void in an unsettled area of
  law, (3) the extent to which the party against whom the
  new rule is applied relied on the former rule, (4) the
  degree of the burden which a retroactive order imposes
  on a party, and (5) the statutory interest in applying
  a new rule despite the reliance of a party on the old
  standard.

866. F.2d at 1442.

     The Court discerned nothing in the record or the Commission's
     decision to overcome the first four factors, all of which, in the Court's
     opinion, militated strongly against application of the Commission's new
     policy to Gilbert. 866 F.2d at 1442-43. The Court indicated that the
     Commission had not examined whether the "statutory interest" in the

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application of the new policy to Gilbert, notwithstanding his reliance on
the old policy, was of sufficient magnitude to overcome the other four
factors, and it remanded the matter to the Commission for the purpose of
carrying out such a statutory interest analysis. 866 F.2d at 1443.

In discussing retroactive application of new agency policy in SEC v.

Chenery, 332 U.S. 194, 203 (1974), the Supreme Court, in relevant part,
stated:

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[R]etroactivity must be balanced against the mischief
of producing a result which is contrary to a statutory
design.... If that mischief is greater than the ill
effect of the retroactive application of a new
standard, it is not the type of retroactivity which
is condemned by law.

The "statutory interest" criterion referred to by the Court herein is
drawn from Chenery, supra, and is a flexible concept. In applying it in
retroactivity contexts, courts have explained it in terms of statutory
"purpose" and "design" (e.g., Retail, Wholesale & Dept. Store U., supra,
466 F.2d at 392), "overriding Congressional interest" (Clark-Cowlitz Jt.
Operating Agency v. FERC, 826 F.2d 1074, 1085 (D.C. Cir. 1987)),
"significant policy concern of ... legislation" (NLRB v. Wayne Transp.,
etc., 776 F.2d 745, 751 (7th Cir. 1985)), and "statutory intent" (Stewart
Capital Corp. v. Andrus, 701 F.2d 846, 849-50 (lOth Cir. 1983)).

With respect to prospective application of the Commission's new

policy, all Commissioners adhere to their respective views as expressed in
the prior Commission decision in this matter. With respect to retroactive
application of that policy, all Commissioners conclude that under all the
circumstances presented, any practical or legal "mischief in allowing
Gilbert's private action to go forward would not be sufficient to overcome
the Court's determinations with regard to the first four retroactivity
criteria. We note that the Secretary first moved to dismiss Gilbert's
action and it is the Secretary who, as the primary prosecutor under the
section 105(c) enforcement schemes would be the primary victim of the
"mischief" that she originally asserted resulted from a "two-tracked"
proceeding such as this. Yet, as the Court noted, the Secretary "appeared
to concede [during oral argument in this and a related case before the
Court] that the government had no case that it wished to pursue in defense
of the Commission s retroactive application of the new rule." 866 F.2d
at 1443.

Thus, in light of the Court's opinion, Gilbert's private complaint
must be reinstated.

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IV.
On the foregoing bases, we reverse the judge's conclusion that
Sandy Fork did not discriminate against Gilbert in violation of section
105(c)(1) of the Act and we reinstate Gilbert's discrimination complaints.
We remand the matter to the judge for determination of all outstanding
remedial issues.

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Distribution

Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.0. Box 360
Hazard, Kentucky 41701

Ronald E. Meisburg, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue
Washington, D.C. 20005

William A. Hays, Esq.
P.0. Box 817
Middlesboro, Kentucky 40965

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge Gary Melick
Federal Mine Safety and Health
Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041