Conatser v. Red Flame Coal Company, Inc.

Plain-English summary

Charles Conatser refused to drive an 85-ton rock truck after being told that his loader was inoperable and the haulroads were covered with snow. The Commission accepted that his work refusal was based on a reasonable, good faith belief that driving conditions were hazardous. It nevertheless held that his statement, "I can't drive a rock truck," did not communicate the specific safety concerns that caused the refusal, especially because he had previously driven rock trucks. The Commission affirmed dismissal of his discrimination complaint and held that his discharge for the refusal did not violate the Mine Act.

Decision snapshot

• Cited standard: 30 U.S.C. § 815(c)
• Outcome: The Commission affirmed dismissal of the discrimination complaint.
• Key point: A miner who refuses work because of a safety concern must communicate that concern to an operator representative when reasonably possible.

Full text (FMSHRC public release)

CCASE:
CHARLES CONATSER V. RED FLAME COAL
DDATE:
19890112
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            January 12, 1989

CHARLES CONATSER

v.                Docket No. KENT 87-168-D

RED FLAME COAL COMPANY, INC.

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

              DECISION

BY THE COMMISSION:

In this discrimination proceeding arising under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq.
(1982) ("Mine Act" or "Act"), Charles Conatser alleges that Red
Flame Coal Company, Inc. ("Red Flame") violated section 105(c)(1)
of the Mine Act when it discharged him for refusing to drive a rock
truck.1/ Commission

1/ Section 105(c), 30 U.S.C. $ 815(c), provides in relevant part:

Discrimination or interference prohibited; complaint;
investigation; determination; hearing
          (1) No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination 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 in a coal or other mine ... or because of

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the exercise by such miner ... of any statutory right
afforded by this [Act].

    (2) Any miner ... who believes that he has 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

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Administrative Law Judge George A. Koutras dismissed Conatser's
discrimination complaint on the grounds that Conatser failed to
communicate his belief in the existence of a safety hazard to
Red Flame's foreman at the time of his work refusal. 10 FMSHRC 416
(March 1988)(ALJ). For the reasons that follow, we affirm the
judge's decision.

Conatser was employed by Red Flame at its strip coal mine on

Whitco Mountain in Letcher County, Kentucky, as a general loader
operator from July 14, 1986, through the date of his discharge on
January 26, 1987. In that capacity, Conatser operated an end loader,
a heavy vehicle resembling a tractor and equipped with a loading
bucket. Conatser had been transferred to the Red Flame mine by No. 8
Limited of

 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. Such investigation shall
 commence within 15 days of the Secretary's receipt
 of the complaint.... 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, with service
 upon the alleged violator and the miner ... alleging
 such discrimination or interference and propose an
 order granting appropriate relief. The Commission
 shall afford an opportunity for a hearing ... and
 thereafter shall issue an order, based upon findings
 of fact, affirming, modifying, or vacating the
 Secretary's proposed order, or directing other
 appropriate relief. Such order shall become final
 30 days after its issuance....

         (3) Within 90 days of the receipt of a complaint
filed under paragraph (2), the Secretary shall notify,
in writing, the miner ... of his determination whether
a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this
subsection have not been violated, the complainant
shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination
or interference in violation of paragraph (1). The
Commission shall afford an opportunity for a hearing

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... and thereafter shall issue an order, based upon
findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are sustained,
granting such relief as it deems appropriate, including,
but not limited to, an order requiring the rehiring or
reinstatement of the miner to his former position with
back pay and interest or such remedy as may be appropriate.
Such order shall become final 30 days after its issuance....

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Virginia ("No. 8 Limited"), a parent corporation of Red Flame
for whom he had worked in the same capacity for a period of some
seven years. While employed at the No. 8 Limited mine, Conatser
had driven rock trucks on several occasions. (Rock trucks are heavy
haulage vehicles with empty weights ranging from 50 to 85 tons.)

At approximately 7:00 a.m. on January 26, 1987, Conatser

reported for work at Red Flame and was advised that his end loader
was inoperable. There were 10 to 12 inches of snow on the ground
and Red Flame's foreman, Zachary Mullins, was having the haulroads
scraped to remove the snow. Mullins directed Conatser to assist
Red Flame's mechanic in starting up some heavy equipment. While
Conatser was so occupied, Mullins radioed the mechanic and directed
him to start up an 85-ton WABCO rock truck.

Mullins drove up to the WABCO rock truck and motioned
Conatser over. Mullins then instructed Conatser to drive the
rock truck that day. Conatser responded, "I can't drive a rock
truck." 10 FMSHRC at 466-67; Tr. 75, 116, 497-98. Mullins then
told Conatser that "Roy Clifford, Robert and Larry"--other miners
at Red Flame--had all learned to drive a rock truck and that Conatser
could drive. Tr. 75, 423; Mullins Dep. 27 28; Exhibit R-2. When
Conatser again told Mullins that he could not drive the truck, Mullins
told Conatser either to drive it or "go to the house." 2/ Conatser
responded that Mullins was forcing him to go to the house. Conatser
then asked Mullins to get his steel-toed safety shoes for him, which
were in Conatser's loader, and Mullins told Conatser to pick them up
on his way out. Conatser left the mine site. Later that same day,
Conatser filed a discrimination complaint with the Department of
Labor's Mine Safety and Health Administration ("MSHA") alleging that
he had been discharged by Red Flame in violation of section 105(c)
of the Mine Act.

On the advice of MSHA, Conatser subsequently contacted Wesley
Burke, No. 8 Limited's president, and on February 27, 1987, met
with Burke and Cruce Davis, Red Flame's mine superintendent, to
ask for his end loader job back. At that time, Conatser advised
management that he had refused to drive the rock truck because he
feared for his safety as he did not know how to "gear down' a rock
truck on a slope and because he had never driven a rock truck under
wet weather conditions. When Conatser called Burke a week later to
find out whether Red Flame would rehire him, Burke informed Conatser
that he would not be rehired.

After investigating Conatser's complaint, which alleged in

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essence that he was discharged after refusing to operate a rock
truck that he lacked experience to drive. MSHA advised Conatser on
May 22, 1.87. that the information received during its investigation
did not establish a

2/ Both the Commission and the Sixth Circuit Court of Appeals agree
that this language is synonymous with a discharge in the mining
industry. See, e.g., Moses v. Whitley Development Corp., 4 FMSHRC
1475, 1479 (August 1982), aff'd sub nom. Whitley Development Corp.
v. FMSHRC, No. 84-3375, slip op. at 2 (6th Cir. July 31, 1985);
Secretary on behalf of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147
n.5 (September 1988).

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violation of section 105(.c) of the Mine Act. On June 8, 1987,
Conatser, proceeding without counsel, filed his own discrimination
complaint with the Commission pursuant to section 105(c)(3) of the
Act (n. 1 supra). He subsequently retained counsel to represent him
before this Commission.

Following an evidentiary hearing, Judge Koutras issued a
decision dismissing Conatser's complaint. The judge first
determined that Conatser's refusal to drive the rock truck on
January 26, 1987, was based on a reasonable, good faith belief
in a safety hazard. 10 MSHC at 457-62. In this regard, he
found that the condition of the haulroads at the Red Flame mine
on January 26, 1987, "presented ... possible sliding and slipping
hazards for the [rock] trucks" scheduled to operate on the haulroads
that day. 10 FMSHRC at 457-59. The Judge found that although
Conatser operated rock trucks on some seven occasions at the No. 8
Limited strip site, he had driven them only on level terrain during
dry weather conditions. 10 FMSHRC at 459-60; Tr. 61-62, 65-66, 70,
94-97, 515-516, 520. The judge concluded that Conatser's refusal to
drive the rock truck on January 26, 1987, was reasonable in light of
his relative inexperience in operating rock trucks, the fact that he
had never driven a rock truck on a wet hill or roadway, and the
potentially hazardous nature of the roadway over which he was
expected to drive on that date. 10 FMSHRC at 459-61.

Considering next whether Conatser had communicated his safety
concerns to Mullins, the judge found that Conatser simply responded
to Mullins' instruction to drive the rock truck with the statement
"I can't drive a rock truck." 10 FMSHRC at 466-67. Based upon
Conatser's prior experience, however, the judge found that this
statement was not true. 10 FMSHRC at 467. The judge further found
that Conatser in no way communicated his safety concerns to Mullins
at the time of his work refusal. 10 FMSHRC at 467-68. The judge
expressly rejected Conatser's argument that his brief statement was
sufficient by itself to raise a safety issued declining to read into
that statement the various reasons subsequently asserted by Conatser
in his written statement to MSHA and in his testimony at the hearing
for refusing to operate the rock truck that day. Id.

The Judge also found credible testimony by Mullins that if
Conatser had told Mullins that he feared for his life or safety,
or even given Mullins a reason for not driving the rock truck, he
would not have required Conatser to drive the truck. 10 FMSHRC at
468; Tr. 400-01, 403-06. Davis' testimony that Mullins would have
assigned the job to someone else if Conatser had informed Mullins of

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his safety concerns was also credited by the judge in concluding that
Conatser's belief in the existence of a safety hazard was "in no way"
communicated to Mullins at the time of his work refusal. 10 FMSHRC
at 468; Tr. 484-86, 488. The judge determined from the testimony of
Mullins, Davis and Red Flame miners that management at Red Flame took
appropriate action to address communicated safety concerns and that
because Conatser did not communicate his safety concerns to Mullins at
the time of his work refusal, Mullins had no opportunity to understand
the basis of Conatser's work refusal, to address Conatser's safety
concerns, or to take any corrective action. 10 FMSHRC at 468.

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he was in shock due to Mullins' direction that he either drive
the rock truck or go to the house, he had no opportunity to
communicate to Mullins his reasons for refusing to drive the
rock truck. The judge found that Conatser's claim of being in
shock was difficult to believe. 10 FMSHRC at 468. Noting that
Conatser conceded at the hearing that Mullins had not prevented him
from speaking, the judge further found that Conatser had an ample
opportunity to communicate his safety concerns to Mullins and that
Conatser's failure to do so at the time of his work refusal was not
excused by mitigating reasons or extenuating circumstances. 10 FMSHRC
at 469. Accordingly, the judge concluded that because Conatser failed
to communicate his safety concerns to Mullins, his work refusal was
not protected under the Mine Act and his subsequent discharge by Red
Flame for that work refusal was not in violation of the Act. Id.

Finally, the judge considered an allegation by Conatser that
Red Flame's refusal to rehire him constituted a separate act of
discrimination under the Mine Act. Finding no probative credible
evidence to sustain this allegation, the judge summarily rejected
this argument. 10 FMSHRC at 469-70. 3/

On review, Conatser essentially asserts that the judge erred
as a matter of law in finding that Conatser's statement to Mullins
at the time of his work refusal was insufficient to raise a safety
issue. Arguing that the judge's finding was too restrictive,
Conatser contends that his statement to Mullins, if evaluated in
light of the evidence and the appropriate legal standard, clearly
raised a valid safety issue at the time of the work refusal--that
Conatser was incapable of operating the rock truck under the
conditions present at that time. Conatser also complains that
certain findings of fact made by the judge are not supported by
substantial evidence and should be reversed. We disagree.

The principles governing analysis of a discrimination case
under the Mine Act are well settled. In order to establish a
prima facie case of discrimination under section 105(c) of the
Act, a complaining miner bears the burden of production and proof
in establishing that (1) he engaged in protected activity and
(2) the adverse action complained of was motivated in any part
by that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797.2800 (October 1980), rev'd on other
grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981); Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut
the prima facie case by showing either that no protected activity

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occurred or that the adverse action was in no part motivated by
protected activity. 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 alone
and would have taken the adverse action in any event for the

3/ No issue concerning Red Flame's refusal to rehire Conatser was
raised by Conatser on review and, accordingly, that issue is not
before us.

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unprotected activity. Pasula, supra; Robinette, supra; see
also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1984); Donovan v. Stafford Constr. Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983)(approving a nearly identical
test under the National Labor Relations Act).

A miner's refusal to perform work is protected under the
Mine Act if it is based upon a reasonable, good faith belief that
the work involves a hazard. Pasula, supra, 2 FMSHRC at 2789-96;
Robinette, supra, 3 FMSHRC at 807-12; Secretary v. Metric
Constructors, Inc., 6 FMSHRC 226, 229-31 (February 1984), aff'd
sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469, 472-73
(11th Cir. 1985); see also Simpson v. FMSHRC, 842 F.2d 453, 458
(D..C. Cir. 1988); Consolidation Coal Co. v. FMSHRC, 795 F.2d 364,
366 (4th Cir. 1986). It is further required that "where reasonably
possible, a miner refusing work should ordinarily communicate ...
to some representative of the operator his belief in the safety or
health hazard at issue." Secretary on behalf of Dunmire and Estle v.
Northern Coal Co., 4 FMSHRC 126, 133 (February 1982); see also Simpson
v. FMSHRC, supra, 842 F.2d at 459; Secretary on behalf of Hogan and
Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd
mem., 829 F.2d 31 (3rd Cir. 1987)(table cite).

Proper communication of a perceived hazard is an integral
component of a protected work refusal, and the responsibility
for the communication of a belief in a hazard underlying a work
refusal lies with the miner. Dillard Smith v. Reco, Inc., 9 FMSHRC
at 992, 995-96 (June 1987). Among other salutary purposes, the
communication requirement is intended to avoid situations in which
an operator at the time of a work refusal is forced to divine the
miner's motivations for refusing work. Dillard Smith, supra,
9 FMSHRC at 995. We have also stated that the communication of a
safety concern "must be evaluated not only in terms of the specific
words used, but also in terms of the circumstances within which the
words are used and the results, if any, that flow from the
communication." Hogan and Ventura, supra, 9 FMSHRC at 1074.

In a well-reasoned analysis, the judge properly considered
and applied relevant Commission and judicial precedent concerning
work refusals. The primary issue presented on review is whether
substantial evidence supports the judge's ultimate conclusion that
Conatser failed to adequately communicate to Mullins his belief in

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the existence of a safety hazard. We find that it does.

In the context of the facts in this case, Conatser's statement
to Mullins that he "can't drive a rock truck" was, at best, ambiguous.
Conatser himself testified that he knew how to operate trucks and
had driven rock trucks on some seven previous occasions. Tr. 68-69,
125-26. Based in large part on this testimony, the judge found
that Conatser's "can't" statement to Mullins simply was not true.
10 FMSHRC at 467-68. We concur, and find that this fact vitiates
the asserted adequacy and clarity of Conatser's communication.

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Conatser has maintained in this proceeding that his statement
to Mullins really meant that he lacked the ability to operate a
rock truck under the weather and road conditions present that day.
However, Conatser conceded that he said nothing to Mullins at the
time of his work refusal about his specific fears concerning the
weather conditions, his inexperience driving a rock truck down a
sloped haulroad, or his lack of training in operating a rock truck;
rather, Conatser merely "figured" that Mullins would know these
fears. Tr. 75-76, 117-19, 126, 142, 412, 524-25. To the contrary,
Mullins testified that because Conatser had the general reputation
of being capable of operating a rock truck among Red Flame miners
who had seen him operate such vehicles when they were employed at
the No. 8 Limited site, he believed Conatser could operate a rock
truck on the morning of the work refusal. Tr. 173, 175-76, 246-47,
271, 273, 279, 377-79, 403, 406-09, 410-12. In any event, Mullins'
unrebutted testimony reflects that in responding to Conatser's work
refusal, he replied that "Larry and all them [other miners] ...
drove them and there is no reason you can't." Tr. 415 (emphasis
supplied). In our view, Mullins' response should have demonstrated
to Conatser that Mullins did not comprehend the nature of Conatser's
safety concerns. Yet, as the judge found, Conatser "did not
elaborate further or explain to Mr. Mullins the reasons for his
purported inability to drive the rock truck," and simply repeated
his "can't" statement. 10 FMSHRC at 467.

In analyzing whether Conatser was prevented from communicating
his safety concerns to Mullins, the judge found that Conatser had
an ample opportunity to communicate with Mullins at the time of
his work refusal. 10 FMSHRC at 468-69. It is undisputed that
Conatser engaged Mullins in further conversation relating to his
safety shoes before leaving the mine site. The judge also
determined that Conatser's assertion that he could not communicate
further with Mullins because he was "in shock" was difficult to
believe. Id. The judge observed that Conatser did not strike him
as a timid individual, but rather impressed him as a rather combative
person. Id. These observations are in the nature of credibility
resolutions and we reject Conatser's challenges to them. See, e.g.,
Robinette, supra, 3 FMSHRC at 813.

While he have made clear that in work refusal contexts a
"[s]imple, brief" communication by the miner of a safety or health
concern will suffice (Dunmire & Estle, supra, 4 FMSHRC at 134), we
conclude that in the context presented by this case Conatser's
communication fell short of the required sufficiency and clarity.
Indeed, we believe that this case well illustrates many of the

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reasons for the communication requirement. From all that appears
on this record, had Conatser articulated his safety concerns, they
would have been addressed by the operator.

In this regard, we find the following observation of the judge,
well-founded in the testimony, to be particularly salient:

 Foreman Mullins testified that had Mr. Conatser
 told him that he feared for his life or safety,
 or given him a reason for not driving the rock
 truck, he would not have required him to do so.

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Superintendent Davis testified that Mr. Mullins would
not endanger anyone's life, and if he did, he would
fire him. The miners who testified in this case
corroborated the fact that Mr. Davis and Mr. Mullins
were concerned for their safety and always addressed
their concerns over the road conditions. Mr. Davis
further confirmed that had Mr. Conatser informed
Mr. Mullins that he was afraid to drive the truck,
Mr. Mullins would have assigned someone to go with him,
or assigned another driver. Former foreman Meade also
confirmed that if anyone expressed fear or reluctance in
operating a piece of equipment, he would either assign
them to other work, or not require them to operate the
equipment. In view of this testimony, which I find credible,
it would appear to me that management at Red Flame and No. 8
Ltd. took appropriate action to address communicated safety
concerns. However, in Mr. Conatser's case, since he did not
communicate his safety concerns to his foreman at the time of
his work refusal, the foreman had no opportunity to address
them and take corrective action.

10 FMSHRC at 468 (.emphasis in original).

We have considered Conatser's evidentiary challenges to the
credibility of Mullins and to the judge's various resolutions of
conflicting testimony and his credibility determinations and find
no error of fact or law in the decision below. Conatser has not
provided compelling reasons that would justify our taking the
extraordinary step of overturning the judge's credibility findings
and resolutions of disputed testimony and we decline to do so.

Accordingly, we conclude that the judge's finding that Conatser
failed to adequately communicate a safety concern is supported by
substantial evidence and is correct as a matter of law as applied
to that evidence. Thus, we affirm the judge's conclusion that
Conatser's work refusal was not protected by the Mine Act and that
his discharge for that refusal did not violate the Act. 4/

4/ Upon consideration of Conatser's Motion For Leave to File Reply
Brief, and the opposition thereto, the motion is hereby granted.
We have considered the brief in our decision.

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For the foregoing reasons, the judge's decision is affirmed.

Distribution

Ronald G. Polly, Esq.
Polly, Craft, Asher & Smallwood
P.0. Box 786
104 North Webb Avenue
Whitesburg, Kentucky 41858

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

Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041