FMSHRC ALJ decision Docket KENT 90-59-D Decided September 28, 1990 Citations affirmed Judge George A. Koutras Transcribed from scan

Leeco, Inc.

Leeco, Inc. (FMSHRC KENT 90-59-D): Discriminatory discharge found after unsafe servicing refusal

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This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.

ALJ decision, later reviewed by the Commission

This decision was issued by an FMSHRC Administrative Law Judge, but it was not the final word in the case: the Commission directed review, and the Commission's decision is the one citable as precedent.

Read the Commission's decision in this case

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.

Transcribed from a scanned original: FMSHRC released this decision as an image-only file. The full text below is a machine transcription, proofread against the scan. Check the official release before quoting exact language.

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Plain-English summary

Ricky Hays, an electrician at Leeco's No. 62 Mine, was discharged after refusing to grease an offset fitting on a continuous haulage system while the equipment was operating. Hays testified that the rotating fitting could pull him into the machine or against the rib, and that management required electricians to service the system during production. Judge George A. Koutras found that Hays' refusal was a good-faith safety complaint and protected activity under section 105(c). He rejected Leeco's explanation that the discharge was for broader poor performance and ordered reinstatement, full backpay and benefits, expungement of the discharge record, and reimbursement of reasonable litigation expenses. The judge retained jurisdiction while the remedies were finalized.

Decision snapshot

Governing provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 815(c)(3); 29 C.F.R. § 2700.1
Outcome: The discriminatory discharge finding was sustained, with reinstatement, backpay, record expungement, and expense reimbursement ordered.
Key point: A miner's good-faith refusal to perform hazardous work can be protected activity when the employer responds with discharge.

Full text (FMSHRC public release)

CCASE:
RICK HAYS V. LEECO
DDATE:
19900928
TTEXT:

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

RICKY HAYS, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 90-59-D
v. MSHA Case No. BARB CD 89-32

LEECO, INC., No. 62 Mine
RESPONDENT

                            DECISION

Appearances: Tony Oppegard, Esq., Stephen A. Sanders, Esq.,
Appalachian Research & Defense Fund of Kentucky,
Inc., Hazard, Kentucky, for the Complainant;
Timothy Joe Walker, Esq., Reece, Lang & Breeding,
London, Kentucky, for the Respondent.

Before: Judge Koutras

                     Statement of the Case

 This proceeding concerns a discrimination complaint filed by

the complainant, Ricky Hays, against the respondent Leeco Inc.,
pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 815(c). The complainant filed his
initial complaint with the Mine Safety and Health Administration
(MSHA), and after completion of an investigation of the
complaint, MSHA advised the complainant by letter dated November
7, 1989, that the information received during the investigation
did not establish any violation of section 105(c) of the Act.
Thereafter, on December 18, 1989, the complainant filed a
complaint with the Commission.

 The complainant, who was employed by the respondent as an

electrician, alleges that he was discharged by the respondent's
electrical maintenance foreman Clayton Hacker, on September 7,
1989, because of his failure to service (grease and oil) a mobile
bridge carrier speed reducer grease fitting. The bridge carrier
in question was a component part of the continuous haulage system
used on the section. The complainant further alleges that the
respondent required all of its electricians to service the

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haulage system while it was in operation, that this is in
violation of Federal law, and that his failure to service the
part in question was based on his reasonable good faith belief
that it was unsafe to service the system while it was in
operation.

 The respondent denies that the respondent's discharge was

discriminatory, and it takes the position that the complainant
was discharged not only for failing to service the component part
in question, but also because of his failure to generally service
the equipment as he was expected to do during his shift.

 A hearing was held in Pikeville, Kentucky, and the parties

filed posthearing briefs. I have considered their respective
arguments in the course of my adjudication of this matter.

                        Issues

 1. Whether the complainant's belief that the servicing of

the continuous haulage system in question while it was in
operation would be unsafe and hazardous, and would expose him to
serious or fatal injuries, was reasonable and made in good faith.

 2. Whether the complainant's failure to service the system

in question because of his reasonable and good faith belief that
to do so while it was in operation would be unsafe and hazardous
and would place him at risk of serious injuries or death
constituted protected activity.

 3. Whether the complainant communicated his reasons for

failing to service the system to mine management, and whether the
respondent's discharge of the complainant in spite of his
communicated safety concerns was justified or otherwise
nondiscriminatory.

 4. Additional issues raised by the parties are identified

and disposed of in the course of this decision.

Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301 et seq

 2. Sections 105(c)(1), (2) and (3) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 815(c)(1), (2) and
(3).

 3. Commission Rules, 29 C.F.R.   2700.1, et seq.

Stipulations

 The parties stipulated to the following (Tr. 8-10):

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1. The mine where Mr. Hays was employed is a nonunion mine, and
it is subject to the Act.

      2. At the time of the discharge, the first and second
      shifts were production shifts, and the third shift was
      a non-production maintenance shift.

      3. At the time of the discharge, Mr. Hays' hourly rate
      of regular pay was $15.65, and his hourly overtime pay
      rate was $23.47.

      4. At the time of the discharge, the continuous haulage
      system in question was comprised of four bridges and
      three mobile bridge carriers which are referred to as
      "carriers."

      5. Complainant's Exhibit C-8, is a Long-Airdox brochure
      regarding the continuous haulage system, and the
      circled portion in the listed specifications is the
      particular Model No. MBC-30C involved in this case.

      6. The complainant's personal notebook or work log,
      received as evidence in this case, is an authentic
      document.

      7. Respondent's "downtime records," provided to the
      complainant's counsel during discovery, are authentic
      business records.

      8. Photographic Exhibits C-2 through C-7, taken during
      the complainant's discovery inspection of the mine are
      authentic and are what they purport to be.

      9. The presiding judge has jurisdiction to hear and
      decide this matter.

Complainant's Testimony and Evidence

 Ricky Hays testified that he is currently employed by the

Golden Oak Mining Company in Knott County, Kentucky, as an
electrician, and that he has been so employed since October 7,
1989. He previously worked for the respondent as an electrician
for 2 years until his discharge on September 7, 1989. At the time
of his discharge he was working the day shift at the No. 62 Mine,
and was responsible for servicing the four bridges and three
carriers on the continuous haulage system, including the digging
arms of the mining machine, and the servicing entailed the
greasing and oiling of the equipment. He also serviced two scoops
and two roof bolters. He confirmed that the continuous haulage
system was approximately 250 feet long, and as the miner

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advanced, the bridge and bridge carriers also advanced by
tramming on tracks (Tr. 15-23).

 Mr. Hays stated that he had to grease the system "from the

miner back to the bridge or belt line," and that there were
approximately 100 grease fittings on the system. Each bridge and
carrier had six grease fittings which he greased with a cartridge
fed grease gun which he had to put on the ground so that he could
have leverage to hold the hose from the ground and place it over
the fitting to pump the grease. The equipment was oiled by means
of a suction-type gun approximately 18 to 20 inches long, and the
oil was sucked into the gun from an oil bucket by vacuum. He had
to oil two speed reducers on the bridge and carrier conveyor, and
an inner and outer carrier drop box which used gear oil (Tr. 25).

 Mr. Hays stated that on the day of his discharge, he was

working on the day shift (7:00 a.m. to 3:30 p.m.), on the No. 2
section. A "pulling star," which is an axle gear on a conveyor
shaft that pulls the conveyor chain used for coal loading, broke
at 12:30 p.m., and he called outside for a replacement part and
to report the downtime. Outside foreman Clyde Collins came to the
area with the parts, and after looking around, he found a grease
or dust cap that attaches to the end of the shaft on the offside
of the speed reducer on the No. 1 bridge, and it had a broken
grease fitting on it. Mr. Collins asked Mr. Hays how long the
fitting had been broken off, and Mr. Hays told him that he was
not sure, but that it could not have been long because he had
serviced the equipment that morning and did not notice that the
fitting was broken. Mr. Hays told Mr. Collins that he had last
serviced the dust cap itself 5 days earlier, and when Mr. Collins
asked him why he had not recently serviced it, Mr. Hays told him
that it was too dangerous to do so while coal was being run
because it was offset on the shaft, and that there was no way to
connect a grease hose to the fitting while it turned, and "that
it would get you against the rib or something" (Tr. 28).

 Mr. Hays explained the differences between a grease fitting

which is "offset" and one which is "centered." He confirmed that
there are eight offset fittings on the haulage system, two on
each bridge, and he indicated that these fittings turn with the
shaft when the machine is operating and that it is impossible to
attach a grease hose to the fitting when it is turning with the
equipment running. However, he can attach a grease hose to a
fitting which is centered, even though the machine may be
running, but he must watch and stay out of the way of the machine
(Tr. 31-36; Exhibits C-2 through C-5, C-7). He believed that
servicing a centered fitting while the equipment was running is
not safe because he could be run over, pinned against the rib, or
"various things could happen," if he were unaware that the bridge
carrier operator was moving the equipment (Tr. 40).

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Mr. Hays believed that the width of the entries at the time of
his discharge was 18 feet, and that the distance between the
equipment and the ribs would vary depending on the width of the
cuts. He stated that the equipment "rakes" or rubs the ribs most
of the time, except in a break. He stated that injuries ranging
from a "mashed finger to being killed" may result by trying to
grease the system while it is in operation, and that the severity
of any injury would depend "on what situation you was in." He
explained the dangers involved in attempting to service the
fittings while the equipment is running, and he confirmed that
none of the grease fittings on the system in question had
extended fittings (Tr. 40-44).

 Mr. Hays stated that he completed the repair of the pulling

star at approximately 3:00 p.m. Mr. Collins did not ask him about
any other fittings or whether he had serviced any other
equipment. Mr. Collins told him to gather up his tools and that
"we were going outside," and did not inform him at that time that
he had been fired. Mr. Hays stated that the broken grease fitting
on the pulling star, or the fact that it had not been serviced
that day, or the past 5 days, had nothing to do with the
breakdown of the equipment (Tr. 46).

 After reaching the surface of the mine, Mr. Hays was

informed by the "light lady," Mabel, that there was a note for
him to meet with his supervisor, maintenance foreman Clayton
Hacker, in his office. Mr. Hays met with Mr. Hacker. The second
shift electrician, Jerry Caudill, also known as "blockhead," was
also summoned to the office and was present when he arrived.
After Mr. Hacker arrived, he picked up the dust cap which had
come off the bridge, and asked them when they last serviced it.
Mr. Caudill stated that he had serviced it 2 days before, and Mr.
Hays said that he had serviced it 5 days earlier than that. When
asked for an explanation, Mr. Hays informed Mr. Hacker that he
could not service it while the equipment was running because it
was too dangerous and that there was no way to attach the grease
hose while it was running, and Mr. Caudill "told him pretty much
the same thing" (Tr. 48). Mr. Hays informed Mr. Hacker that "the
only way you can do it is shut it down," and Mr. Hacker stated
"we can't shut it down, . . . we can't stop running coal just to
grease that" (Tr. 48).

  Mr. Hays stated that he informed Mr. Hacker that he could

stay between shifts to service the system, but that there was no
way he could service the offset fittings while the equipment was
running, and he explained his reasons to Mr. Hacker. Mr. Hacker
informed him that "there wasn't no excuse" and that he (Hacker)
had serviced the system while it was running and said "he knowed
we could" (Tr. 49). Mr. Hays confirmed that on a previous
occasion, Mr. Hacker had informed him that servicing the system
while it was running would allow the grease to reach the bearing
"real

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good," and that if it were serviced while it was shutdown, the
grease will come out (Tr. 50).

 Mr. Hays stated that he and Mr. Caudill informed Mr. Hacker

that they had been "riding the machine to service what we could
on it, because there wasn't no room on the sides" between the
equipment and the rib when it was cutting in a belt entry, and
that he had to position himself on top of the machine to ride it.
Mr. Hacker then discussed his maintenance program and informed
them "we had to work together" and that "if one of us didn't do
our part, then he couldn't have another one coming in and filling
in for the one that couldn't do their part," and he then informed
both of them that they were fired (Tr. 52).

 Mr. Hays stated that Mr. Hacker mentioned no other grease

fitting other than the grease cap he was referring to, and that
this was the same cap which he (Hays) had discussed with Mr.
Collins underground. Mr. Hacker mentioned no other broken grease
fittings, said nothing about his (Hays) failing to service any
other equipment on the section, and said nothing about notifying
him if he believed he could not service that particular fitting
(Tr. 53).

 Mr. Hays confirmed that he had previously discussed the

servicing of the system with Mr. Hacker, and asked him if it was
being serviced while it was running in the same way it was done
at the No. 49 Mine where he (Hays) was assigned prior to his
transfer to the No. 62 Mine, and that Mr. Hacker told him that it
was. Mr. Hays confirmed that 2 or 3-days prior to his discharge,
he asked Mr. Hacker if he could stay late to service the system.
Mr. Hays stated that the maintenance system at the No. 49 and No.
62 Mines were the same, and he acknowledged that although he
serviced the system at the No. 49 Mine while it was running, he
complained to Mr. Hacker that he could not do it because it was
dangerous. Mr. Hacker informed him "you do it" or "he would
replace us" (Tr. 54-56).

 Mr. Hays stated that he regularly greased and oiled the

system while it was running on a daily basis while he was
employed on the day shift at the No. 62 Mine. However, he only
serviced the grease fittings which were centered, and not the
ones which were offset, while the system was running (Tr. 57).
Mr. Hays stated that he was able to service the grease fitting
which was discussed with Mr. Hacker when he was fired 5 days
earlier because the power and equipment was down and "I had a
chance to get them" (Tr. 58).

 Mr. Hays explained how he serviced the system by "riding it"

while it was in operation and trammed. He stated that because of
the location of some of the grease fittings, he had to lay on top
of the machine in order to reach them, and that he would have to
position himself between the equipment and the coal rib to reach

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others. In order to reach the carrier bridge grease block which
has five grease fittings, he would have to lay on the machine and
reach down, and that there was a danger of "just getting you
against the top" (Tr. 60-65, exhibit C-6).

 Mr. Hays confirmed that he knew it was illegal and unsafe to

service the system while it was in operation, but did it because
"I was told to either do it or be replaced" (Tr. 66). He stated
that the system had never been intentionally shutdown and locked
out on any production shift so that he could service it, but he
did not know whether this was ever done during the third or idle
shift (Tr. 67).

 Mr. Hays stated that if the system were deenergized and

locked out so that he could service it, it would take him 45 to
75 minutes to grease all of the fittings. It would take
approximately 45 minutes to 1 hour to check the oil and oil the
system, and to do both together, or to completely service the
entire system, it would take approximately 1 hour and 45 minutes
to 2 hours and 15 minutes (Tr. 71). If an equipment breakdown
occurred during the shift, he would be responsible for making the
repairs rather than servicing the system while it was down (Tr.
72). He confirmed that during the last week of his employment, he
was responsible for servicing all of the equipment on the
section, except the scoops. During the changing of the continuous
miner bits in the last week of his employment, he would grease
the miner digging arms, and would sometimes have 2 or 3 minutes
to check the bits and lugs or call out to report anything that
required repairing (Tr. 74).

 Mr. Hays identified a notebook which he maintained on a

daily basis during his working shift (exhibit C-1; Tr. 76). He
confirmed that his section foreman was aware of the fact that he
was servicing the system while it was in operation because he
observed him doing it all of the time. The foreman never told him
not to service the system while it was running, never took any
disciplinary action against him for doing so, and never
deenergized the system before he serviced it (Tr. 78). Mr. Hacker
was aware that the system was being serviced while it was running
because "he is the one that instructed us to do so" (Tr. 78).

 Mr. Hays stated that prior to his discharge, he had never

been disciplined or "written up" for any improper servicing of
equipment, and was never told that he was not servicing the
equipment properly at the No. 62 Mine. He confirmed that he was
out of work for 1 month after his discharge, and that his next
job after his discharge was his present employment (Tr. 78).

 On cross-examination, Mr. Hays testified as to certain

entries made in his notebook. He confirmed that the equipment was
supposed to be serviced every day, and that if he could not

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service it, he was not required to tell anyone, and he "just let
it go" if he could not service it (Tr. 79-83). He confirmed that
he had previously serviced the offset speed reducer grease
fitting while working at the No. 49 Mine, and he stated that
"most of them stayed tore up. They didn't serve no purpose. No
one really worried about it" (Tr. 86). However, he could not
service it while it was running, and only did so "when it was
off. When you got a chance." He stated that the haulage system in
question is approximately 2-1/2 feet high, and that the grease
gun hose that he uses is 18 inches to 2 feet long (Tr. 88).

 Mr. Hays stated that depending on the cut and the individual

operating the equipment, the system would advance or tram
approximately 8 inches or a foot every 2 or 3 seconds (Tr. 89).
He described how the system advanced while coal was being mined,
and he explained how he would attach his grease gun hose to the
fittings (Tr. 89-98).

 Mr. Hays stated that the first time he complained to Mr.

Hacker about his belief that it was unsafe to service the system
while it was running was when he worked on the second shift at
the No. 49 Mine. Mr. Hays believed that there were no bridge
parts which could be safely greased while the system is running
(Tr. 101). He confirmed that there were times during his shift
when he observed the changing of the miner bits once, but he did
not recall more than one change except for bit changes on the
third or idle shift when overcasts were being cut. He would not
record such bits changes in his notebook unless he helped change
them, and he could recall no bits being changed more than once on
any of his day shifts (Tr. 104-107).

 Mr. Hays confirmed that the system was shutdown when belt

setups were made, and that there were no belt setups made on his
shift during his last week on the job, or during the 2 or 3 weeks
when he worked at the No. 62 Mine. He stated that the system
advanced 270 to 300 feet before a belt setup was made (Tr. 107).

 Mr. Hays acknowledged that he was given a 3-day suspension

by Mr. Hacker on July 27, 1989 for "unsatisfactory performance"
for not servicing the brakes on a shuttle car. He explained that
he had repaired the brakes, but when they went out 6 hours later,
Mr. Hacker told him he had not "fixed them good enough where they
lasted, you know, forever" and suspended him. He also
acknowledged that he received prior written reprimands from other
supervisors, for not installing a spillboard on a face drive on
January 13, 1989, and for not hooking up a battery charger on
December 7, 1988 (Tr. 111-112).

 Mr. Hays confirmed that Mr. Hacker instructed him to service

the system and that he pointed out the importance of servicing
all of the speed reducers while the bearings were turning so that
they could be serviced sufficiently. He agreed with Mr. Hacker

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that it was best to grease the bearings while they were turning
in order to draw the grease freely from the grease gun (Tr. 113).
Mr. Hays acknowledged that even though he was an electrician, he
was required to repair brakes and spillboards, and to do
"whatever they told you to do" (Tr. 114).

 Mr. Hays confirmed that he knows the respondent's mine

safety director and some of his staff and has seen him at safety
meetings. He also knew that there was a suggestion box at the
mine for anonymous safety suggestions by miners, has taken
advantage of it, but never in regard to grease fittings on a
speed reducer because he "confronted" Mr. Hacker about that
matter "face-to-face" at the No. 49 Mine (Tr. 116).

 In response to further questions, Mr. Hays confirmed that he

did not sign any of the prior three "disciplinary slips" because
he did not agree with them (Tr. 117-118). Counsel Oppegard agreed
that two of the disciplinary actions were 3-day suspensions, and
the other one was a warning (Tr. 119). Mr. Hays explained the
system for deenergizing and locking out the equipment and the
haulage system, and he stated that the amount of time required to
deenergize the equipment would depend on its location at any
given time and the location of the power center (Tr. 120-125). He
also explained his notebook notations in reference to greasing
the system bridge and bridge carriers (Tr. 126-128).

 Mr. Hays stated that Mr. Collins did not blame him for the

broken star piece gear mechanism and did not indicate to him that
it had broken because he did not service it properly. Mr. Hays
stated that it broke because "they were running rock and it
wouldn't carry rock good" (Tr. 131). He stated that on the day of
his discharge Mr. Hacker mentioned his prior disciplinary
actions, as well as those of Mr. Caudill "right before he fired
us" (Tr. 131). He confirmed that he tried to get his job back
after he was fired, spoke to the safety department, and tried to
get an appointment with the company president, but that "they
called me back and more or less made fun of me" (Tr. 133).

 Mr. Hays stated that he never complained to the safety

department about being required to service the equipment while it
was being operated, but did complain to Mr. Hacker, his immediate
boss. Mr. Hays acknowledged that he has observed federal and
state inspectors at the mine, but never mentioned that he had to
service the equipment while it was running, and he was certain
that the respondent had never been cited for servicing the
equipment while it was running, and if it had "it would have
warned us about it, you know, not to do it, while they was there"
(Tr. 135). He confirmed that he was not aware of any miner safety
representative or safety committee at the mine, and that if he
had any safety problem he would go to his boss "through the chain

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of command." He acknowledged that he could have gone to the
safety department, but never did (Tr. 137).

 Jerry M. Caudill testified that he is employed by the Blue

Diamond Coal Company, and previously worked for the respondent.
He confirmed that he was fired on September 7, 1989, with Mr.
Hays, but that his discharge was changed to a 3-day suspension
and he was assigned to the No. 29 Mine where he worked for a week
and a half before going to work at his present job. He confirmed
that he worked as a second shift electrician for the respondent,
and that he is a certified mine foreman. His electrician duties
entailed the repair of all of the equipment, including the
continuous haulage system, bolters, scoops, and miner digging
arms (Tr. 141).

 Mr. Caudill explained what transpired on the day that he and

Mr. Hays were fired, including their discussions with Mr. Hacker.
He confirmed that Mr. Hays told Mr. Hacker that he could not
grease the grease cup fitting which Mr. Hacker had referred to
while the system was running because it was offset on the shaft.
Mr. Caudill stated that he told Mr. Hacker the same thing, and
that it was too dangerous to grease it while it was running. Mr.
Hacker replied that "he wasn't going to hear no excuses. It had
to be done during our shift" (Tr. 143). Mr. Hays asked Mr. Hacker
if the system could be shutdown for service, and Mr. Hacker "said
we had to find time to do it. But it had to be done during our
shift, but they would not shut it down to grease it" (Tr. 144).

 Mr. Caudill stated that when he worked as a second shift

electrician he was expected to service and oil the haulage system
while it was running and "that this is the only way to do it"
(Tr. 145-146). If the system were down it would take someone
2-1/2 to 3 hours to do "a real good job" greasing and oiling the
entire system, and 1 hour or 1-1/2 hours to grease only the
fittings. It was not possible to grease the system every shift
while it was running (Tr. 147).

 Mr. Caudill identified photographic exhibit C-6, as a bridge

carrier, and he explained that he could grease part of the
carrier by walking next to it with a grease gun, but would grease
the top fittings while seated on top of the carrier start box
while the machine was moving and while coal was being cut. If he
were servicing the fittings from the side, the distance between
the machine and the rib would sometimes be a foot and a half,
"hardly no more than that," and this presented a danger in that
"if they move nary a bit, they'll drag you into the rib. You
can't get away from it" (Tr. 149). He has never been injured
trying to service the system, but stated that "I've been lucky,
I've went under through it before to get away from it" and that
he has had close calls more than once (Tr. 149).

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Mr. Caudill stated that he never saw the system deenergized
specifically for the purpose of greasing it, and he confirmed
that Mr. Hacker knew that he was servicing it while it was moving
because he observed him doing it. Mr. Hacker never warned him not
to do it, never disciplined him for doing it, and never told him
to deenergize the system before servicing it. His section foremen
were also aware of the fact that he was servicing the equipment
while it was running because they too observed him doing it (Tr.
151). Mr. Caudill stated that he complained to his section
foreman and outside foreman about servicing the system while it
was running, and that the section foreman would say nothing about
it, and the outside foreman did not want to talk to Mr. Hacker
about the matter. Mr. Caudill stated that he complained to Mr.
Hacker that it was dangerous to service the system while it was
operating on at least four occasions, and that Mr. Hacker told
him he "wasn't going to hear no excuses," and that "we would do
it during our production shift if we stayed there" (Tr. 153). Mr.
Caudill also asked to stay over on overtime to service the system
on the third shift, but Mr. Hacker "said no" (Tr. 153).

 Mr. Caudill did not believe it was safe to service any of

the fittings on the system when it was running, regardless of the
fact that they were offset or on the center of the shaft, because
"they go to the face and come back so rapid that you can't get
away from the equipment." The system is so long that if he is on
the corner and the equipment is on a break, "the whole thing
comes over all at once and you ain't got nowhere to run unless
you go over top of it or through it" (Tr. 154). He believed that
he could be injured while trying to grease the system "on the
run," and that "it could be drug plumb over top of you or get
caught in a conveyor chain or slide pan. You could get caught in
them" and be killed "real easy" (Tr. 154).

 Mr. Caudill stated that on the day of the discharge Mr.

Hacker said nothing to him or to Mr. Hays about any other grease
fittings other than the one that he had in his hand. Mr. Hacker
said nothing about their failure to service any other equipment
on the section other than that one grease fitting, and he did not
mention their failure to service the bolters or miner digging
arms. Mr. Hacker did not tell them that they should have
contacted or notified him if they could not service the fitting
in question (Tr. 156). The only reason he could think of for his
discharge was the grease cap that Mr. Hacker was holding (Tr.
157). His discharge was changed to a suspension after he spoke
with another official at the company's London office (Tr. 157).
That individual made Mr. Hacker put him back to work, but Mr.
Hacker said some bad things about him and humiliated him and he
left later because "I didn't feel right working for the company"
and quit. He did not know why Mr. Hays did not get his job back
(Tr. 159-160). Mr. Caudill confirmed that he had received prior
disciplinary warnings or suspensions before his discharge

Page 13

~1861
at the No. 3 Mine 3-years ago, but they were not related to his
work (Tr. 160).

 On cross-examination, Mr. Caudill explained that his prior

disciplinary actions were not related to his work and that he had
a "habit of bad language" and had personal differences with a
supervisor. He admitted that when he and Mr. Hays were called to
Mr. Hacker's office he told Mr. Hacker "that he knew that Hays
was going to get him fired" (Tr. 162). He explained that he made
that statement because approximately a month earlier he would
find three bridge speed reducers "bone dry" on his shift after he
had serviced them and he believed that he was going to be fired
by Mr. Hacker because of this (Tr. 162-163).

 In response to further questions, Mr. Caudill stated that he

informed a second shift mechanic foreman about the dry reducers
and took him into the mine and showed him how he was greasing
them and that the foreman stated that "he didn't see how we could
do it, oil that stuff, and keep it up" (Tr. 168). Mr. Caudill
also confirmed that he wrote up and reported the conditions of
the reducers. He stated that he and Mr. Hays were both fired
"over the grease cap" and that Mr. Hacker blamed them for it, and
stated "I can't fire one of you without letting you both go
because both of you were supposed to be doing that job," and that
"he wouldn't listen to nothing," even after he told him that he
needed his job. Mr. Hacker told him "it ain't my damn problem"
(Tr. 170).

  Mr. Caudill stated that he did not know whether the

respondent had ever been cited for servicing the system while it
was running, and that he contacted a federal inspector after his
discharge, and the inspector told him he couldn't be fired. He
also complained to a federal inspector who inspected the mine
before his discharge but nothing came of it. Mr. Caudill
confirmed that he never complained to the safety department (Tr.
171).

 Mr. Caudill explained that his complaint to Federal

Inspector Franklin Nahew was about greasing the system while it
was running, and that he complained during the "middle of 1988."
His complaint concerned the Leeco No. 22 Mine, where the same
system of servicing the equipment while it is operating is used.
He stated that "they do it the same way at all their mines" (Tr.
173). He confirmed that he knew some of the training instructors
in the safety department, and that there was a suggestion box
available for anonymous safety complaints and that he used it to
complain about greasing the haulage system. He signed the
complaint, but a foreman cut the lock off the box and took out
his complaint. The foreman was disciplined for doing this and was
nearly fired, and he (Caudill) "got in trouble over it" (Tr.
170). He also confirmed that the dried up condition of the
reducers which he thought he was going to be fired over, and

Page 14

~1862
which caused him to make the statement that Mr. Hays was going to
get him fired, was caused by the equipment which had been
reported by him two or three times during the week he was fired,
and not by Mr. Hays (Tr. 180).

 William Craft testified as to his mining background and

experience, and he confirmed that he formerly served as the MSHA
District Manager in Madisonville, Kentucky. He taught classes at
the federal mine academy, and served on a committee which
recommended the promulgation of mandatory safety standards, and
was familiar with the standards. He has been self employed as a
mining consultant since 1981, when he retired from MSHA because
of a back disability. He has testified in many proceedings before
the Commission's judges and has been qualified as an expert on
mine safety matters (Tr. 180-184). Mr. Craft was accepted as an
expert witness, over the objection of the respondent (Tr.
185-186).

 Mr. Craft confirmed that he toured the No. 002 section of

the No. 26 Mine on April 24, 1989, and inspected the continuous
haulage system in question. He also confirmed that he has
reviewed the depositions of Mr. Collins and Mr. Hacker, as well
as others, and has heard the testimony of Mr. Hays and Mr.
Caudill. He has also reviewed the manufacturer's manual
concerning the haulage system (exhibit C-8), and he explained the
respondent's mining method used on the section in question (Tr.
186-192).

 Mr. Craft stated that the system is greased and oiled

manually, and he explained that when a grease hose is attached to
a speed reducer with a fitting which is centered, the hose will
stay still while the shaft turns, and if it is attached to a
fitting which is offset, "the whole thing goes around" (Tr. 198).
He believed that servicing the system while it is in operation
presented a "dangerous situation" (Tr. 200). In addition to his
opinion that it was dangerous, Mr. Craft cited mandatory safety
standard sections 75.509 and 75.1725(d), which he believed
prohibited the lubrication, servicing, or greasing of the system
while it is in operation (Tr. 201-205).

 Mr. Craft explained why he believed it was dangerous to

grease an offset speed reducer fitting with the equipment
energized, and he believed that the system could not legally be
greased and oiled without deenergizing the power and locking out
the system (Tr. 206-207). He did not believe that the grease
fittings can be safely serviced without first locking out the
system at the power center, and he stated that "You've heard them
testify they were hanging on the sides of it and on the top of
it, that, in itself, would be enough to tell you that it wasn't
safe" (Tr. 208).

Page 15

~1863
On cross-examination, Mr. Craft stated that the words "work" and
"equipment" found in section 75.509, cover greasing or
lubrication on the haulage system in question, and that the
system must be deenergized before this work is done (Tr.
208-209). He also believed that the use of a grease gun and the
oiling of the system constituted "work" within the meaning of the
standard (Tr. 210-211). If he were still employed by MSHA, he
would either cite a violation, or issue instructions to cite a
violation, for the lubrication of a bridge system without
deenergizing it (Tr. 212). He would cite a violation of section
75.509, and 75.1725(c) or (d) (Tr. 213-215). Mr. Craft confirmed
that when he visited the mine, he found no right angle crosscuts,
but did find some crosscuts cut at 60 degree angles (Tr. 217).

  Terry Richardson, third-shift electrician and foreman,

testified that he was working as a "floater" on the second shift
on the day Mr. Hays was discharged. He confirmed that he has
worked with Mr. Hays on the third shift at the No. 62 Mine, and
that he considered Mr. Hays to be a hard worker. Mr. Richardson
was familiar with the haulage system, and stated that he was
responsible for servicing it on the second shift. He confirmed
that he has serviced the system while it was operating and not
deenergized or locked out and that "in some ways" it was
dangerous. He stated that "about the only thing you've got to
watch--any piece of equipment that is moving, you've got to watch
it. There is always a possibility that you could get mashed.
You've got to be careful" (Tr. 223). He believed that it would be
possible for an electrician to be injured or killed while
attempting to service the system while it was in operation (Tr.
224).

 Mr. Richardson believed that it would take 2-1/2 hours to

service the entire system, and he doubted that there was that
much available "down time" during a production shift to
completely service the system. He stated that when he serviced
the system while it was operating he tried to position himself
"in the safest place you could" so that he could not be "caught"
(Tr. 225). He would position himself on top of the equipment when
it was in low coal, and that "most of the time you're beside of
it" and that there is always a danger of getting mashed into the
rib (Tr. 226). He confirmed that after Mr. Hays was discharged,
his foreman Bobby Strunk commented to him (Richardson) that he
believed Mr. Hays was a good worker (Tr. 226).

 On cross-examination, Mr. Richardson stated that he has

worked at other mines and believed that the respondent's mine is
"as safe as any mine that I've worked in" (Tr. 229). He confirmed
that he has serviced shafts on the system while the conveyor was
off and "while they were backing out of a cut." In those
instances, he would be walking alongside the miner if the coal
were high enough, but "most of the time you would probably be on
your knees. You try to get it as they back up." He

Page 16

~1864
believed that he would be exposed to a danger while doing this at
certain times when the equipment is running and the operator may
not see him, but that he tries to let the operator know where he
is "most of the time" (Tr. 230). He confirmed that he was never
specifically told to walk alongside the equipment to service it,
but that "you've got to do what you need to do to service it"
(Tr. 230).

  Mr. Richardson confirmed that he has serviced the speed

reducer grease fitting which is offset on the shaft, that it
cannot be serviced when the conveyor is running, and that "you
try to service it when you get a chance, when this equipment --
if it's stopped or if they're backing up" (Tr. 231). If the
system conveyor chain is running, "there is no way you can grease
it." He can keep up with the system while it is moving if he were
walking, but if he were crawling, he cannot. He can service some
of the system fittings if it is not advancing, and "you have to
get what you can. Try to get them all, if you can" (Tr. 232). He
also stated that "it's pretty much left up to the repairman. You
just got to get it done" (Tr. 233). He makes an attempt to grease
all fittings, and if he cannot, he tries to tell the oncoming
shift repairman about the ones that he has not serviced (Tr.
235).

 Mr. Richardson stated that he has not discussed the

servicing of the system while it was running with his foreman or
with Mr. Hacker, and he could not recall discussing this with Mr.
Hays (Tr. 236). Mr. Richardson believed that it would be illegal
to service a piece of equipment while it was energized, and that
"just your general mine law" would prohibit this (Tr. 240). He
confirmed that this particular question has never been discussed
by the foreman and the crew.

 Marty Lewis, roof bolter operator, testified that he worked

with Mr. Hays, and that Mr. Hays was responsible for servicing,
or greasing and oiling his machine every day. He had no
complaints about Mr. Hays' servicing his machine, and prior to
his discharge had no problems or breakdowns because the machine
had not been properly serviced by Mr. Hays. He confirmed that Mr.
Hays serviced the bolter during the shift, and he has also
observed him servicing the haulage system during the shift. The
system was not deenergized when Mr. Hays was greasing it, but if
electrical repair work were required, the system would be locked
out. Mr. Lewis believed that Mr. Hays was a good worker, and he
heard foreman Bobby Strunk state that Mr. Hays was a good worker
but "wasn't a good enough electrician to be on the section" (Tr.
241-247).

 On cross-examination, Mr. Lewis stated that he could not

recall helping Mr. Hays grease his machine, but he has helped
other repairman with the greasing. He confirmed that he has never
been required to work under dangerous conditions, and he

Page 17

~1865
believed that the respondent was "a lot safer than any coal
company I've ever worked for" (Tr. 248).

 Ricky Eversole, roof bolter operator, confirmed that he has

worked with Mr. Hays and considered him to be a good worker. He
had no problems with Mr. Hays' servicing of his machine, and
stated that Mr. Hays serviced it regularly (Tr. 249-252).

 On cross-examination, Mr. Eversole could not recall

specifically helping Mr. Hays to grease his bolter, but that he
would have done so if he asked (Tr. 252). He would also have
helped other repairman if they had asked him to.

 Dewey Eldridge, miner operator, testified that Mr. Hays was

responsible for greasing and oiling the gathering arms of his
machine while he (Eldridge) was "setting bits." He had no
complaints about the manner in which Mr. Hays serviced his
machine, and had no problems with any broken grease fittings that
were not being replaced. He confirmed that Mr. Hays serviced the
haulage system while it was in operation, and he never knew the
system to be locked out while Mr. Hays was servicing it (Tr.
253-256).

 On cross-examination, Mr. Eldridge stated that there were

shifts when he changed the miner bits more than once, but that
the electrician did not grease them everytime he changed the
bits, and only greased them once. After this was done, the
electrician could do something else. He had no knowledge about
any instructions to an electrician as to when he was to grease
the haulage system, and he believed that the respondent's mines
are "as safe as the other mines" he has worked in (Tr. 257).

 David Combs, mobile bridge carrier operator, explained his

duties, and he confirmed that he has observed Mr. Hays greasing
and oiling the system. He stated that he had no complaints or
problems with Mr. Hays' servicing of the mobile bridge carrier,
but he did not know whether Mr. Hays ever serviced it while it
was in operation. He confirmed that the power was on while Mr.
Hays serviced the system, and he never saw the system shutdown or
locked out at the power center while it was being serviced (Tr.
258-262).

 On cross-examination, Mr. Combs stated that he worked 1 week

with Mr. Hays on the same shift, and he could not recall whether
he ever saw Mr. Hays greasing the equipment while it was not in
operation. He confirmed that there is a block of grease fittings
in front of the control station on the bridge carrier where
several hoses come together from different parts of the carrier,
and that he can see them while he is operating the carrier. If a
repairman was greasing those fittings, he could observe him and
would not start up and possibly injure him (Tr. 263).

Page 18

~1866
In response to further questions, Mr. Combs confirmed that there
are other operators for the other mobile bridge carriers on the
system. During the week that he worked with Mr. Hays, there was
an average of two bridge carriers on the system, and he
identified a photograph of a bridge carrier similar to the one
that he operated. He confirmed that he would be seated at his
control compartment looking forward, and that he could see a
serviceman such as Mr. Hays at all times while working on that
part of the system, if he were "standing erect or hunched over."
However, if he were kneeling down to grease something, he could
not see him (Tr. 265). He confirmed that Mr. Hays serviced the
system while it was being trammed, and that he has observed Mr.
Hays around the machine while it was standing still "for a matter
of minutes," but it was still operating with the rest of the
system, and that he could see him if he were not lying down. If
Mr. Hays was at the rear of the machine, he could not see him
unless he turned around to look (Tr. 268).

 Mr. Combs stated that while seated on the "onside" of his

machine, he could not see Mr. Hays if he were servicing the other
side, or "offside" of the machine and was kneeling or crouched
down (Tr. 268). He confirmed that the bridge carrier and the
entire haulage system, continues to move forward as the miner is
cutting coal, and the system "follows the miner" (Tr. 268). He
confirmed that he has an emergency stop control on his carrier
that can keep the entire system from advancing and that he can
stop the system to prevent someone from getting hurt. However, he
could not deenergize the miner machine using this control.
Although he could shutdown the miner, he cannot start it up again
(Tr. 270).

 Clifton Lewis, Jr., testified that he was working with Mr.

Hays as a scoop operator at the time of his discharge. He did not
believe that Mr. Hays was responsible for servicing the scoops,
but he did observe him "help grease it every now and then" (Tr.
273). He has observed Mr. Hays service the haulage system while
it was in operation, and he never saw the system deenergized or
locked out while Mr. Hays was performing this service (Tr. 274).

 On cross-examination, Mr. Lewis stated that he was present

with Mr. Hays prior to his discharge at a meeting which took
place with Mr. Collins and Mr. Hacker, and the scoop operators
were informed at that time that they would have to grease the
scoops. He stated that he has worked at other mines, and compared
to these mines, the respondent's mine, in terms of safety, was
"A-1, excellent, good" (Tr. 276).

 Mr. Lewis confirmed that he had no problems with Mr. Hays'

job performance when he worked with him (Tr. 278). He believed
that the scoop operators were assigned the task of servicing the
scoops so that the repairman could have more time to do what they

Page 19

~1867
were supposed to do (Tr. 280). He confirmed that he shuts down
his battery powered scoop to grease it, and that he can grease it
anytime during the shift (Tr. 282).

  Gary R. Caudill, scoop operator, testified that he worked

with Mr. Hays, and although Mr. Hays has helped him grease and
service the scoop, Mr. Caudill greased his own scoop and was
responsible for servicing it. He stated that no one was ever
specifically assigned this service work, but that a meeting was
held prior to Mr. Hays' discharge, and the scoop operators were
given this responsibility. He had no complaints about Mr. Hays
when he serviced his scoop, and he has observed Mr. Hays
servicing the haulage system while it was in operation (Tr. 286).
In terms of safety, and compared to other mines he has worked in,
he believed that the respondent's mine was "pretty good" (Tr.
286).

Respondent's Testimony and Evidence

 Richard Garcia, respondent's general manager, testified that

he is responsible for the operation of five underground mines
operated by the respondent, and that his responsibilities include
production, safety, personnel, and equipment. Prior to his
employment with the respondent, he worked for MSHA as the
assistant district manager, District No. 7, Barbourville,
Kentucky. Mr. Garcia identified Exhibit R-1, as a copy of a form
that he uses for the reporting of downtime on each of the
respondent's mine sections, and he explained how the information
is reported to him and recorded on the form (Tr. 7-15).

 Mr. Garcia stated that he became aware of the discharge of

Mr. Caudill and Mr. Hays after receiving a telephone call from
Mr. Collins or Mr. Ron Helton, the mine superintendent, and that
it was normal policy to inform him of any discharges. He then met
with Mr. Jerry Elliott, the respondent's personnel manager, and
they reviewed the personnel file of the two employees. Based on
the information in their files, they decided to let Mr. Hays'
discharge stand, and that Mr. Caudill would be suspended for 3
days and transferred to another mine. Mr. Caudill's suspension,
rather than discharge, was based on the fact that he had no
recent disciplinary actions against him justifying a discharge
(Tr. 17).

 On cross-examination, Mr. Garcia confirmed that Exhibit

C-12, is a copy of the same downtime form that he previously
referred to, and he confirmed that he had no personal knowledge
of the accuracy of the information recorded on the forms, and
that he simply records what is reported to him from the
superintendent, and that the superintendent would obtain the
information from a section foreman. He conceded that the
information could be inaccurate (Tr. 20).

Page 20

~1868
Mr. Garcia confirmed that he could recall no conversations with
Mr. Collins or Mr. Helton at the time he was informed about Mr.
Hays' discharge indicating that Mr. Hays told mine management
that he believed it would be unsafe to grease the haulage system
while it was in operation. He also could not recall being told
that Mr. Hays was discharged for any reason other than his
failure to lubricate the system, and that "it was basically a
failure to perform the job as he was assigned is generally the
way it was put to me" (Tr. 21). He further confirmed that the
respondent has no "hard and fast rule" as to when an employee
should be discharged, and that it would depend on the
circumstances. The fact that an employee may have been suspended
does not mean that he will automatically be discharged (Tr.
21-22).

 Mr. Garcia confirmed that he was involved in the transfer of

Mr. Collins as superintendent from the No. 47 Mine to the No. 62
Mine, but he could not recall whether he was involved in the
decision to rehire Mr. Collins, but that he would have been
involved in any recommendation to do so. He was aware of the fact
that Mr. Collins had been discharged for smoking underground, and
confirmed that he was involved in that discharge. He was also
aware of the fact that Mr. Collins had been previously discharged
for leaving a mine area unbolted without gobbing it off, but that
this occurred prior to his employment with the respondent.
Although he was concerned about these discharges, Mr. Garcia
explained that the respondent needed qualified foremen, and that
Mr. Collins was told "to clean up his act" and was informed that
the respondent would not tolerate future acts of this kind. Mr.
Collins' good reputation for producing coal was a part of the
decision to rehire him (Tr. 25).

 Mr. Garcia could not recall the details of what was in Mr.

Hays' personnel file when he reviewed it at the time of his
discharge, and he confirmed that he does not generally determine
the merits of any prior disciplinary actions. He has had an
occasion to meet with employees to discuss such matters, but
could recall no further discussion in the case of Mr. Hays (Tr.
28). He confirmed that Mr. Hays never contacted him about his
discharge, and he could recall no further information from Mr.
Hacker concerning the matter. If an employee believes that he is
wrongfully discharged, he can seek an appointment with someone
"in the main office" to discuss the matter, and Mr. Hays made no
attempts to contact him about the matter, but may have done it
with someone else, in which case "I would have been involved in
any discussion at that point" (Tr. 31). He believed that Mr. Hays
could have discussed his case with someone "higher in management
than his supervisor" or with the safety department, and that all
employees have an opportunity to express safety concerns if they
are required to do an unsafe job (Tr. 32).

 Mr. Garcia confirmed that he had no knowledge of any company

policy regarding the servicing of the haulage system, and that he

Page 21

~1869
knew of no policy requiring anyone to lubricate a machine while
it is in motion or while it was being trammed from place to
place. He believed that Mr. Hays should have complained earlier
to someone higher in management than his supervisor if he
believed that he was in danger or at risk of getting caught
between the machine and the rib or being run over while servicing
the machine. Suggestion boxes are available for employees to use
and they are encouraged to report safety problems to the safety
department. He could not recall any other personnel problems with
Mr. Hays other than the prior disciplinaries which were in his
file, and he made no further inquiries concerning Mr. Hays' work
record (Tr. 35-38).

 Mr. Garcia stated that servicing the haulage system while it

is in operation would be a violation of section 75.1725, but not
section 75.509, which deals only with electrical work. Section
75.1725 only requires that the power be off at the equipment
itself when it is being serviced, but it need not be tagged and
locked out. Section 75.509, would require the equipment to be
locked out and tagged only when electrical work is being done
(Tr. 38-40).

 With regard to some of the downtime entries made on Exhibit

R-1, Mr. Garcia confirmed that the haulage system would be in use
when rock was being cut, and that it was very likely that an
electrician such as Mr. Hays would have performed some or all of
the work connected with the tightening of the chains, and helped
out in the cleaning and setting of bits (Tr. 42).

 Mr. Garcia conceded that he may not have known about Mr.

Hays' contact with Mr. Elliott after he was discharged, and that
he (Garcia) did not contact Mr. Hays prior to his discharge "to
get his side of it," and he did not speak with Mr. Hacker (Tr.
44). He first learned that Mr. Hays had raised a safety concern
as part of his discharge when he saw a copy of his complaint
filed with MSHA (Tr. 49).

 Mr. Garcia had no knowledge of whether the servicing of the

system was ever done on the third shift, and he would not approve
of shutting down for an hour or an hour and a half during a
production shift in order to service the system. He would also
avoid shutting down the system for 30 or 45 minutes for servicing
during a production shift. He confirmed that pursuant to section
75.1725(c), maintenance could not be performed on the system
unless the power was off and the system blocked against motion.
However, the power would only have to be off at the machine, and
it would not be required to be locked and tagged out for
lubrication. He believed that "repairs" would include lubrication
under subsection (c), and he assumed that lubrication is treated
separately in subsection (d) because MSHA did not require tagging
and locking out when equipment is lubricated (Tr. 52).

Page 22

~1870
Clyde Collins testified that he was the mine superintendent when
Mr. Hays was discharged, and that he came to the No. 62 Mine from
the No. 47 Mine in July, 1989. Mr. Collins confirmed that he had
been fired by the respondent on three occasions, and that his
last discharge was 6 or 7 years ago (Tr. 57). He was fired for
smoking and having smoking articles in his possession, driving
deep cuts, and refusing an assignment to another mine section
(Tr. 58).

 Mr. Collins stated that he went underground on the day Mr.

Hays was discharged to check on a bridge sprocket which had been
reported out on a prior shift and to check another bridge
sprocket which had been reported out by the immediate night
shift. He found that the speed reducer shaft had a broken fitting
and that it had not been greased. He checked the rest of the
system and found several fittings broken off, and that "a lot of
it hadn't been serviced. It had just been neglected" (Tr. 64). He
spoke with Mr. Hays and asked him if he had serviced the system
within the past 2 days, and Mr. Hays replied that he had not, and
did not know the last time he serviced it. Mr. Collins then
called Mr. Hacker, the maintenance foreman, to come inside and
check out the system. Mr. Collins confirmed that he is the
immediate supervisor of Mr. Hacker, and that Mr. Hacker is Mr.
Hays' supervisor. After checking the system for an hour, Mr.
Hacker called Mr. Collins and asked him to come out and to bring
Mr. Hays and his tool box with him. Mr. Hays went to Mr. Hacker's
office, but Mr. Collins did not go with him, and did not speak
with Mr. Hays again (Tr. 67).

 Mr. Collins confirmed that it was within Mr. Hacker's

discretion to discharge Mr. Hays. He also confirmed that Mr. Hays
had never complained to him about any unsafe mine conditions, but
that during a meeting a week or two prior to his discharge, he
believed that Mr. Hays brought up the matter of servicing the
system while it was running, and that he (Collins) informed the
people at the meeting to service the equipment "while it was
belting up" or when bits were changed, and if it could not be
serviced during the shift it was to be reported (Tr. 68). Mr.
Collins denied that he ever observed any repairmen servicing the
system while it was moving, and that no one ever informed him
that this was being done (Tr. 70).

 On cross-examination, Mr. Collins confirmed that at the time

he was last discharged by the respondent he admitted that he was
smoking underground, and that most of his crew was also fired
that time, including Mr. Hacker. He confirmed that he knew it was
illegal to smoke underground, but allowed his crew to do it (Tr.
75). He also confirmed that he was fired for driving cuts deeper
than permitted by the roof-control plan, and that he knew it was
illegal, but did it anyway (Tr. 76).

Page 23

~1871
Mr. Collins confirmed that he did not know Mr. Hays prior to July
or August, 1989, when he became the superintendent at the No. 62
Mine, and was only familiar with his work at this mine. Prior to
Mr. Hays' discharge, he had no concern about Mr. Hays' job
performance other than his servicing of the system on the day of
his discharge (Tr. 77). The meeting held prior to Mr. Hays'
discharge concerned personnel on both of the mine sections, and
he had no particular concern about Mr. Hays' job performance at
that time, and no complaints were made to him about Mr. Hays
prior to his discharge on September 7, 1989 (Tr. 78). He
identified the particular piece of machinery that he was looking
at on the day of the discharge as a broken sprocket on a bridge
of the haulage system, and confirmed that Mr. Hays was in the
process of repairing it when he arrived underground and called
Mr. Hacker "to come in and check the equipment" (Tr. 70).

 Mr. Collins stated that when he spoke with the MSHA special

investigator who investigated Mr. Hays' compliant, he stated that
he had asked Mr. Hacker to come underground to "Look at the
bridge" because it had not been serviced. Mr. Collins stated that
he also told Mr. Hacker to "check his equipment" because he had
checked the entire system prior to calling Mr. Hacker and found
other fittings which were broken and not serviced (Tr. 82). He
could not recall whether or not he told the investigator about
looking at the other equipment or about the other broken grease
fittings, and stated that he told Mr. Hacker to "come in and look
at the bridge" (Tr. 83).

 Mr. Collins stated that he was not involved in the decision

to discharge Mr. Hays, and that Mr. Hacker did not discuss his
decision with him. He further confirmed that after Mr. Hacker
came to the mine on the day of the discharge, he did not speak
with him about Mr. Hays' job performance (Tr. 83). He stated that
when the third shift mechanic told him on the day of the
discharge that there was a problem with the servicing of the
equipment, he did not tell him that he believed that Mr. Hays was
not doing his job, nor did he mention anyone in particular who he
believed was at fault (Tr. 84). Mr. Collins confirmed that after
Mr. Hays informed him that he did not know when he had last
serviced the system, he could have fired him, but did not do so.
He also did not suggest to Mr. Hacker that some disciplinary
action needed to be taken against Mr. Hays (Tr. 91).

 Mr. Collins believed that while some of the haulage system

could be legally serviced while it was in operation, the
remaining portion did not have to be deenergized at the power
center and locked out (Tr. 92). Mr. Collins conceded that in his
pretrial deposition he stated that the system had to be
deenergized and blocked against motion in order to service
fittings that could not be safely serviced while the system was
in operation. He further conceded that he had previously stated
that in order to service and oil the fittings, the equipment had
to be locked

Page 24

~1872
out at the power center. Mr. Collins stated that he misunderstood
the questions asked of him during his deposition, and confirmed
that the equipment must be locked out if electrical work is being
performed. He explained that while servicing the system "all you
would have to do is kick the breaker on the start box." After
speaking with the respondent's safety department, he formed a
different opinion about the need to lock the power out at the
power center before servicing the system (Tr. 95).

 Mr. Collins conceded that servicing the system while it is

in operation would expose the serviceman to danger, and that it
could result in his being caught between the equipment and the
rib, or being run over, and that this could result in serious
injury or death (Tr. 95-96). He confirmed that prior to the
discharge Mr. Hacker never told him that Mr. Hays was not
reporting to him that equipment needed servicing or repairing,
and that neither he (Collins) or anyone else in management ever
disciplined any employee for servicing the system while it was in
operation (Tr. 97). He confirmed that at least five people on
different shifts were responsible for servicing the haulage
system, and when the prior shift mechanic told him that the
system was not being serviced, Mr. Collins did not conclude that
this was Mr. Hays' fault, and he simply concluded that "it wasn't
being serviced" (Tr. 114). He also concluded that "Hays and
Caudill, neither one, wasn't servicing it," and that they were
the only two individuals on the first and second production
shifts on the section who were responsible for servicing the
system (Tr. 114-116). He confirmed that it is not legal to
service a moving part of the system while it was in operation
(Tr. 117).

 Mr. Collins confirmed that after Mr. Hays was discharged,

Mr. Hacker informed him that he had fired him for "not servicing
equipment," but he did not blame Mr. Hays for the broken
sprocket. The sprocket in question has a grease fitting which is
"off-center," and it turns. There was no way it can be serviced
while it is moving, and if the system were running all of the
time, it could not be serviced. However, if this occurred and
there was no time to service it, it is supposed to be reported to
him or to Mr. Hacker. At no time has any serviceman ever informed
him at the end of his shift that there was servicing left to do.
If it is not reported, he assumes that the system has been
serviced, and no one would know any different unless it broke
down or someone visually inspected it (Tr. 121). He confirmed
that he does not ask his people to service the system while it is
in operation, and had no knowledge that Mr. Hays was doing this
(Tr. 122).

 Mr. Collins confirmed that there is no company policy or

written instructions advising employees to stop the equipment
before servicing it, and he did not know why this is not covered
by the company safety rules booklet (Tr. 123-124). Respondent's

Page 25

~1873
counsel stated that the safety rule booklet was published at a
time when the haulage system was not in use and that it may be
outdated (Tr. 125, exhibit C-16).

 Mr. Collins believed that Mr. Hays was fired for not

servicing the entire haulage system, rather than the one bridge
sprocket which was broken, because "we checked the entire haulage
system and there was lots of fittings on it that hadn't been
greased. There was fitting on it that were broke" (Tr. 126). He
confirmed that a broken fitting cannot be greased, and that no
broken fittings had been reported. He did not believe Mr. Hays'
assertion that the system was running all of the time and that he
did not want to service it while it was running. He believed that
Mr. Hays could have serviced the system when it was down, as
reflected by the downtime reports, but conceded that he did not
know what happened on September 6, other than what is reflected
on the form (Tr. 129).

  Mr. Collins stated that he has never observed Mr. Caudill or

Mr. Hays use a grease gun to service the system, and that Mr.
Caudill worked a different shift than Mr. Hays. Prior to the date
of the discharge, he never checked on Mr. Hays' work. He would
have expected Mr. Hays or Mr. Hacker to check the system and
report any broken fittings. He had no reason to question Mr.
Hays' work prior to his discharge, and Mr. Hacker never reported
any problems with Mr. Hays' work. He confirmed that Mr. Hacker
only told him that Mr. Caudill and Mr. Hays told him that they
"didn't have time or something other," to service the system, and
that Mr. Hacker did not mention Mr. Hays stating that he did not
believe it was safe to service the system while it was running
(Tr. 133). He believed that Mr. Hays should have asked for help
if he did not have time to service the system, and that help
would have been made available. In the alternative, Mr. Hays
should have reported that he had not serviced the system (Tr.
134).

 Clayton Hacker testified that he has served as a maintenance

foreman for the respondent for 5 years, and has been the
maintenance foreman at the No. 62 and No. 63 Mines since May 19,
1989. He confirmed that Mr. Hays worked under his supervision as
an electrician, and also worked for him at the No. 49 Mine. He
confirmed that he fired Mr. Hays (Tr. 143-145). He stated that on
the day Mr. Hays was fired, he received a call from Mr. Collins
to come underground to look at the equipment. Mr. Hays was
working on a broken bridge discharge sprocket shaft, and Mr.
Collins "mentioned about the servicing." Mr. Hacker then
proceeded to look over the system, which consisted of three
carriers and four bridges, and he also looked at the roof-bolting
machines and one of the scoops. He looked at the lubrication
points on all of this equipment and found "a lack of servicing."
He explained that he found six or more grease fittings which were
broken off on major components of the haulage system, identified

Page 26

~1874
the components, and indicated that there was no way they could
have been greased with a grease gun because of the broken
fittings (Tr. 149-150).

 Mr. Hacker stated that after looking at the equipment, he

retrieved the cap from the broken sprocket grease fitting, left
the mine, and then called Mr. Collins and asked him to inform Mr.
Hays to come out and to bring his tools with him. He then spoke
with Mr. Hays and Mr. Caudill in his office, and asked them why
they had not serviced the equipment. Mr. Caudill informed him
that he had no time to service it, and Mr. Hays informed him that
he could not service it while it was running. Mr. Collins stated
that he told Mr. Hays that he was not instructed to service it
while it was in motion, and he explained further as follows at
(Tr. 153):

      A. He was instructed to do his servicing within his
      shift. He was not told to do all the servicing at one
      time, in a complete thirty minutes, forty minutes,
      whatever. He was told to do it within the shift,
      itself. This could consist of ten minutes at a time
      during intervals; I mean, at anytime it was down for a
      period of time, which you could maybe get one bridge,
      one side of one bridge.

      Almost all repairmen will go up and do one side at a
      time. They won't do everything. You know, it's never --
      you know, hardly -- seldom done that all the machinery
      is serviced at one time. The only time this is ever
      done is in case a belt drive is down for a long period
      of time or a stacker is down outside, something that is
      going to be a long period of time.

      Most all the service is done by just a little bit at a
      time. Repairmen keep their grease gun close to them so
      they can do this. They don't -- you know, their tools.
      They're not always having breakdowns to be working on
      the breakdown, so it's within theirself, when they find
      the time to do this.

 Mr. Hacker denied that he ever suggested or instructed his

servicemen to service the equipment while it was running (Tr.
154). At the time that he discharged Mr. Caudill and Mr. Hays, he
was familiar with Mr. Caudill's work record through another
individual who did not work for the respondent, and he had not
previously reprimanded Mr. Caudill. He had previously reprimanded
Mr. Hays and suspended him for 3 days for not fixing the brakes
on a shuttle car. He also supervised Mr. Hays' work at the No. 49
Mine, and received a complaint from another repairmen in 1989 who
asked him to replace Mr. Hays with another repairmen because Mr.
Hays "wasn't going to make it" (Tr. 159). Mr. Hacker stated that
when Mr. Hays previously worked for him he "was young

Page 27

~1875
at his job and I wanted to give him the benefit of the doubt,"
and that "as far as his work is concerned, he would patch things
up, but as far as really passing on and getting the things fixed
correct, he was never really interested in anything like that"
(Tr. 159-160).

 Mr. Hacker stated that he has never observed anyone

servicing the haulage system while it was in operation (Tr. 167).
He stated that it was illegal to service a piece of equipment
while it is moving unless it has an extended grease fitting or
cup. He confirmed that each mobile bridge carrier has nine
different locations which have extended grease fitting, but no
grease caps. It would still be illegal to grease these fittings
while the system was running because "the way it moves, you know,
if it would be there by the belt structure not outby the belt
structure, you would be in a dangerous position to pin someone"
(Tr. 168). Mr. Hacker confirmed that he has worked as an
electrician on a continuous haulage system, and that in his
experience, it has never operated for a full 8-hour production
shift. Both he and Mr. Collins instructed the servicemen to
report the fact that they were unable to service the equipment
during their shift (Tr. 172).

 On cross-examination, Mr. Hacker confirmed that he knew the

miners who testified that they observed Mr. Hays servicing the
haulage system while it was in operation, and that he had no
reason to believe that these individuals were not honest or were
lying (Tr. 175, 177). He confirmed that he did not consider Mr.
Hays to be very good at his job, and that he was not very good at
overall maintenance or mechanical work (Tr. 178). He confirmed
that Mr. Hays had worked for him for a year at the No. 49 Mine,
and that when he learned that he was being transferred to the No.
62 Mine, he (Hacker) did not object (Tr. 179).

 Mr. Hacker confirmed that at the time he gave a statement to

the MSHA investigator investigating Mr. Hays' complaint, he told
the investigator that Mr. Hays was fired for not servicing the
mobile bridge carrier the way he was instructed and that the
bearings, grease caps and speed reducers had not been serviced
within the past week. He stated that the investigator did not ask
him about any of the other equipment, and that he told the
investigator that he had fired Mr. Hays over the mobile bridge
carrier and mentioned no other equipment (Tr. 185-186). He
confirmed that when the investigator took his statement, a
representative of the safety department, Pat Graham, was present,
but he denied that he discussed what he would tell the
investigator with Mr. Graham (Tr. 188). Mr. Hacker further
confirmed that in his deposition he testified that he found that
"most" of the grease fittings on the system were broken off, but
that he does not now believe that six broken fittings was "most"
of them (Tr. 189).

Page 28

~1876
Mr. Hacker stated that when he spoke to Mr. Hays and Mr. Caudill
at the time he fired them, he was showing them the speed reducer
grease cap with a broken fitting, and that Mr. Hays told him that
he could not service the system while it was operating and that
it was unsafe to service it while it was operating (Tr. 190). Mr.
Hacker stated "I know it's unsafe to do so, but why would an
individual wait up to this time to complain about something to
you" (Tr. 191). He confirmed that he had no reason to believe
that what Mr. Hays was telling him was not true (Tr. 192).

 Mr. Hacker confirmed that he knew at the time of the

discharge of Mr. Hays that it was illegal to service the system
while it was in operation, and that this included all of the
fittings. He stated that the system has extended fittings on the
manifolds, and blocks on each side of the mobile carriers, but
that he did not mention this during his prior deposition and
stated at that time that there were no extended fittings, and
that this was what he believed at the time he fired Mr. Hays. He
subsequently learned of the existence of extended fittings when
he examined the system (Tr. 193-194). He also confirmed that he
previously stated during his deposition that any time the system
was greased, it had to be deenergized and blocked against motion,
but that he was confused about the question because he had
previously talked about electrical or maintenance work (Tr.
195-197). He denied that he thought the haulage system had to be
deenergized and locked out at the time he fired Mr. Hays, and
conceded that his present testimony was different from his prior
deposition testimony "on that specific thing" (Tr. 198).

 Mr. Hacker agreed that if an electrician were greasing the

system with the breaker off on the machine, and if someone were
to turn the breaker on and the machine was not locked out, the
electrician could be injured (Tr. 199). He stated that electrical
work must be locked out and tagged, and that the term
"maintenance" found in section 75.1725, includes greasing and
oiling. He confirmed that when one is greasing the system,
machinery motion is not required in order to make adjustments,
and that it is his understanding that if any greasing is
performed on the system, the power must be off and it must be
blocked against motion (Tr. 201).

  Mr. Hacker confirmed that he never informed Mr. Hays or any

of his electricians that the machine had to be deenergized and
locked out while they were greasing it. He believed that the
particular grease fitting which he showed Mr. Hays at the time he
fired him could be safely greased while the system was in
operation, and he saw no danger in doing this, and did not
believe there was any way that an injury would occur while
greasing the system while it was in operation. He confirmed that
even though he thought it was illegal to grease the system while
it was in operation, and thought that half of the fittings on the
whole

Page 29

~1877
system could be safely greased while it was in operation, he was
not going to let his men do it (Tr. 203-204). He confirmed that
he had never disciplined any employee for greasing the system
while it was in operation, and stated that "I only know the
safety department said it was against policy" (Tr. 205).

 Mr. Hacker confirmed that the grease cap with the broken

fitting which he showed to Mr. Hays at the time of his discharge
had nothing to do with the equipment breakdown which Mr. Hays was
working on at that time (Tr. 211). Mr. Hacker acknowledged that
he did not ask Mr. Hays about his work that day and had no
knowledge as to what he was doing. Mr. Hacker confirmed that
servicing the system while it was in operation could result in
serious or fatal injuries to a miner and this is why it is
illegal to grease or oil the system while it is in operation. Mr.
Hacker further confirmed that 2 days before the discharge he
conducted an electrical inspection of the system and did not
observe any broken grease fittings (Tr. 212-213). Prior to the
discharge, no one ever reported any broken grease fittings,
including the equipment operators who are responsible for the
pre-operational inspection of their equipment and the reporting
of any broken fittings (Tr. 214-215).

 Mr. Hacker stated that prior to the discharge of Mr. Hays,

he never told him that he was not complying with the maintenance
"card system," and no one from management ever complained that
Mr. Hays was not complying with this system. Mr. Collins has
never "written up" Mr. Hays for failing to notify management
about any needed equipment repairs or servicing, and many times
Mr. Hays would have been responsible for repairing equipment, and
when he finished, the system would begin operating immediately
(Tr. 218). During the 2 or 3-weeks prior to the discharge, Mr.
Hacker was not aware of any time that he or the section foreman
suggested that the system be shutdown so that Mr. Hays could
grease it, and that this would be an unusual procedure because he
tries to get the least amount of downtime on a production shift
(Tr. 221). He confirmed that the electricians did not always
contact him personally to report work that needed to be done, and
they would frequently call "Mabel in the light house" and she
would write down what was needed (Tr. 222).

 Mr. Hacker confirmed that on the day of the discharge, Mr.

Hays informed him that it would be unsafe to grease the system
while it was in operation. Prior to firing Mr. Hays, Mr. Hacker
made no inquiries to determine whether Mr. Hays was in fact
greasing the system while it was in operation (Tr. 225). He
confirmed that the 3 hour and 15 minute downtime shown on one of
the reports resulted from two broken sprockets, but he did not
attribute this to Mr. Hays' failure to service the system
properly. The broken sprockets were not the result of any lack of
oil or grease, but were caused by cutting rock, and there was

Page 30

~1878
nothing Mr. Hays could have done to prevent the sprockets from
breaking (Tr. 229).

 Mr. Hacker stated that his visit underground on the day of

the discharge was prompted by the two broken sprockets and the
grease cap that Mr. Collins and Mr. Hays found while working on
the equipment which was down (Tr. 230). He showed the cap to Mr.
Caudill and Mr. Hays "because that was a topic to get started on
the servicing of the equipment," and the lack of grease on the
cap raised an inference that Mr. Caudill and Mr. Hays were not
doing their job (Tr. 231). Commenting on some of the entries made
by Mr. Hays in his daily notebook, exhibit C-1, Mr. Hacker stated
"That is the best I've ever saw" and "That is very impressive."
He confirmed that Mr. Hays never showed him the book, and if he
had, it would have changed his mind because the notations reflect
"a very hard working individual right there" (Tr. 233). However,
based on what he knew of Mr. Hays, Mr. Hacker did not believe him
to be a very hard worker (Tr. 234).

 Mr. Hays was recalled by the Court, and he stated that on

the day of his discharge he was not aware of any broken fittings
on the system except for the one which had broken that day. He
confirmed that when he could not grease the offset fittings, they
were left ungreased and he did not report this (Tr. 240). He
stated that Mr. Hacker instructed him to grease the system while
it was in operation and told him that this was the way he
preferred it (Tr. 241). Mr. Hays stated that prior to his
discharge he told Mr. Hacker that he had a problem with greasing
the system while it was moving, and that he greased it while it
was moving because he believed he was expected to and wanted to
keep his job, and no one told him that he was not supposed to
grease the system while it was moving (Tr. 244).

                 Findings and Conclusions

 In order to establish a prima facie case of discrimination

under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 (November 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity. If an operator cannot rebut the

Page 31

~1879
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette, supra.
See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and
Donovan v. Stafford Construction Company, No. 83-1566 D.C. Cir.
(April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test). See also NLRB v. Transportation
Management Corporation, _ U.S. _, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.

Protected Activity

 A miner has the right under section 105(c) of the Act to

refuse to work if he has a good faith, reasonable belief that his
continued work involves a hazardous condition. Pasula, supra, 2
FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12;
Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30
(February 1984), aff'd sub nom. Brock v. Metric Constructors
Inc., 766 F.2d 469, 472-73 (11th Cir. 1985). However, where
reasonably possible, a miner refusing work ordinarily must
communicate or attempt to communicate to some representative of
the operator his belief that hazardous conditions exists. In a
number of safety related "work refusal" cases, it has been
consistently held that a miner has a duty and obligation to
communicate his safety concerns to mine management in order to
afford the operator with a reasonable opportunity to address
them. See: Secretary ex rel. Paul Sedgmer et al. v. Consolidation
Coal Company, 8 FMSHRC 303 (March 1986); Simpson v. Kenta Energy,
Inc. & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40 (July 1986);
Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 9
FMSHRC 992 (June 1987); Miller v. FMSHRC 687 F.2d 194, 195-97
(7th Cir. 1982) (approving Dunmire & Estle communication
requirement); Sammons v. Mine Services Co., 6 FMSHRC 1391 (June
1984); Charles Conatser v. Red Flame Coal Company, Inc., 11
FMSHRC 12 (January 1989), review dismissed Per Curiam by
agreement of the parties, July 12, 1989, U.S. Court of Appeals
for the District of Columbia Circuit, No. 89-1097.

 In Gilbert v. Sandy Fork Mining Company, 12 FMSHRC 177

(February 1990), on remand from Gilbert v. FMSHRC, 866 F.2d 1433
(D.C. Cir. 1989), rev'd Gilbert v. Sandy Fork Mining Co., 9
FMSHRC 1327 (1987), it was held that a violation of section
105(c) is established when a miner has a reasonable, good faith
belief that certain work conditions are hazardous, communicates
that belief to mine management, and management does not address
his safety concerns in a manner sufficient to reasonably quell
his fears.

Page 32

~1880
The complainant views this case as a "work refusal" case, and
takes the position that Mr. Hays' refusal to fully grease the
continuous haulage system was both reasonable and made in good
faith.

 The respondent argues that in order to demonstrate "good

faith," Mr. Hays must show that he timely informed the respondent
of his belief in the safety hazard so that the respondent would
have an opportunity to correct the situation. Respondent takes
the position that a work "refusal" requires communication of a
miner's intention not to perform work, and that the purpose of
the Act is not served when a miner keeps his "refusal" to do
unsafe work to himself. Respondent concludes that Mr. Hays'
surreptitious failure to service the grease fitting on the speed
reducer shaft for 5 consecutive days did not constitute a valid
work "refusal" protected by the Act.

 Although Mr. Hays' discrimination complaint may not directly

involve a "work refusal" in the traditional sense, I conclude and
find that the principles enunciated in the aforementioned case
law apply in this case, and that Mr. Hays' reluctance or failure
to service the haulage system or any of its component parts in
question while it was in operation because of his belief that to
do so would be unsafe and hazardous and would expose him to
serious injuries would be protected activity within the intent
and scope of section 105(c) of the Act. Mr. Hays has the burden
of establishing that he was required or expected to service the
system while it was in operation, that servicing it while it was
in operation was unsafe and hazardous, that his safety concerns
with respect to the servicing of that equipment were reasonable
and made in good faith, and that he timely communicated these
concerns to mine management.

The Safety Issue

 MSHA's mandatory safety standards, which are applicable to

the respondent's mine, provide in relevant part as follows:

        75.509 Electric power circuit and electric equipment;
      deenergization.

                  [STATUTORY PROVISIONS]

      All power circuits and electric equipment shall be
      deenergized before work is done on such circuits and
      equipment, except when necessary for trouble shooting
      or testing.

Page 33

~1881
75.1725 Machinery and equipment; operation and
maintenance.

      (a) Mobile and stationary machinery and equipment shall
      be maintained in safe operating condition and machinery
      or equipment in unsafe condition shall be removed from
      service immediately.

      (b) Machinery and equipment shall be operated only by
      persons authorized to operate such machinery or
      equipment.

      (c) Repairs or maintenance shall not be performed on
      machinery until the power is off and the machinery is
      blocked against motion, except where machinery motion
      is necessary to make adjustments.

      (d) Machinery shall not be lubricated manually while in
      motion, unless equipped with extended fittings or cups.

 The respondent argues that it never required or instructed

Mr. Hays to service the system while it was in operation and that
the testimony of Mr. Garcia, Mr. Collins, and Mr. Hacker
establishes that Mr. Hays was not instructed to grease equipment
while it was running, but was instead instructed to work safely
in general and specifically to perform his greasing duties during
"those scattered occasions throughout the shift when there were
pauses in production for various reasons." Respondent believes
that such idle times did occur during the shift, and that if they
did not, or if Mr. Hays found them too short or to infrequent to
allow for complete servicing of the equipment, he should have
made this fact known to somebody in charge. Assuming that Mr.
Hays did not have sufficient down time to service the equipment,
the respondent concludes that he apparently worked on the
equipment in an unsafe manner and/or left the work undone and
failed to advise management that the work was not being done.

 Respondent's General Mine Manager Garcia had no knowledge of

any company policy regarding the servicing of the haulage system,
and he was unaware of any policy requiring anyone to lubricate
the equipment while it was in motion or being trammed. However,
he confirmed that he would not approve of, and would avoid, the
shutting down of the haulage system during a production shift for
the purpose of servicing it. He conceded that servicing the
equipment while it was in operation would be a violation of
section 75.1725. He further conceded that subsection (c) of
section 75.1725, would require the equipment to be deenergized
and blocked against motion while it is serviced, but that it was
not required to be tagged or locked out. He also considered
"repairs," as that word is used in subsection (c), to include

Page 34

~1882
lubrication of the equipment, and assumed that any lubrication is
covered separately by subsection (d) of section 75.1725.

 Mine Superintendent Collins denied that he ever observed

anyone servicing the haulage system while it was in operation,
and he confirmed that no one ever informed him that this was
being done. Although Mr. Collins believed that a portion of the
haulage system could legally be serviced while it was in
operation, and that the remaining portion was not required to be
deenergized at the power center and locked out, he conceded that
the electrical breaker on the "start box" had to be "kicked"
while the system was being serviced. When asked to reconcile his
testimony with his prior deposition testimony that the system had
to be locked out at the power center before servicing and oiling
the fittings, Mr. Collins stated that he misunderstood the
questions asked of him during his deposition and that his present
opinion is that the equipment has to be locked out only if
electrical work is being performed.

 I have reviewed Mr. Collins' pretrial deposition of April

25, 1990, and I cannot conclude that the questions asked and
answered at pages 26 through 31 are confusing. The questions
pertained to the greasing and oiling of the system fittings, and
not to any electrical work. Mr. Collins' deposition testimony
reflects his belief that two or three fittings, or those fittings
located together at the front of the bridge carrier operator's
control station, could be safety greased while the equipment was
running because they are stationary and have no turning shafts
and "there's nothing you can get hung into" (Q212 answer, pgs.
27-28). He further clarified his answer when he stated that the
carriers are equipped with some, but not all, fittings which are
extended or have cups, but that none of these fittings have
anything extending out from the grease fitting itself (Q231-233
answers, pgs. 30-31). Mr. Collins doubted that it would be legal
to oil the system while it was running and stated "I don't even
see how you can put oil in it with it running" (Q218 answer, pg.
28). He also confirmed that in order to service the system
fittings which were not otherwise safe to service, the system
power had to be deenergized and the system had to be blocked
against motion and he stated that "that's the only way you could
service it" (Q228-229 answers, pg. 30).

 During his hearing testimony, Mr. Collins confirmed that

servicing a moving part of the system while it was operating is
illegal, and he conceded that servicing the system while it is in
operation would expose the serviceman to danger, and could result
in his being caught between the equipment and the rib, or being
run over, and that this could result in serious injury or death.
This testimony is consistent with his deposition testimony that
servicing the equipment while it is running would expose an
electrician to serious hazards and injuries (deposition, pgs.
31-32). Mr. Collins also conceded during his trial testimony

Page 35

~1883
that a fitting which is "off-center" and is turning while the
system is operating cannot be serviced because it is impossible
to grease them while the system is in operation. He also conceded
that a broken fitting cannot be greased.

 Maintenance foreman Hacker denied that he ever suggested or

instructed his service personnel to service the system while it
was in operation, or that he ever observed anyone servicing the
system while it was in operation. He confirmed that he expected
each serviceman to service the system "when they find the time to
do it." He was unaware of any time that the section foreman
suggested that the system be shutdown so that Mr. Hays could
grease it, and he confirmed that this would be an unusual
procedure during a production shift because he tries to have the
least amount of "downtime."

 Mr. Hacker conceded that it was illegal to service the

haulage system while it was in operation, and that it would be
illegal to service any equipment while it was moving unless it
was equipped with an extended grease fitting or cup. Although he
confirmed that each bridge carrier has some extended grease
fitting at different locations, he confirmed that these fittings
have no grease caps and that it would still be illegal to grease
these fittings while the system was in operation because it would
expose the serviceman to a hazard of being pinned if it were
operating near a belt structure. Although Mr. Hacker claimed some
confusion about his prior deposition testimony that the system
had to be deenergized and blocked against motion when it was
being greased, he agreed that if an electrician were greasing the
system with the circuit breaker off, if someone were to turn the
breaker back on, and the equipment was not locked out, the
electrician could be injured.

 Mr. Hacker agreed that the term "maintenance" as found in

section 75.1725, includes greasing and oiling, and that when the
system is being greased, machinery motion is not required in
order to make any adjustments. He confirmed that it was his
understanding that if any greasing is being performed on the
system, the power must be off and the system must be blocked
against motion.

 Mr. Hacker conceded that at the time he discharged Mr. Hays,

even though he knew that it was illegal and unsafe to service the
system while it was running, he had never informed Mr. Hays or
any of his electricians that the system had to be deenergized
before it was serviced. Mr. Hacker further conceded that during
his discussion with Mr. Hays on the day of his discharge, and
immediately prior to discharging him, Mr. Hays told him that he
could not service the system while it was in operation because he
believed it was unsafe. Mr. Hacker acknowledged that he had no
reason to believe that Mr. Hays was not telling the truth about
his safety concerns, and that he had no reason to question the

Page 36

~1884
honesty of the miner witnesses who testified about their
servicing of the system while it was running, or their safety
concerns and the hazards of servicing the system while it was in
operation.

 Former MSHA official William Craft testified credibly that

pursuant to mandatory safety standard 30 C.F.R. 75.509, the
greasing and lubrication of the haulage system in question
encompasses "work" and "equipment" within the meaning of this
section, and the system must be deenergized before this kind of
work is performed. He also confirmed that lubricating the system
without deenergizing it would be unsafe and would constitute a
violation of mandatory safety standard 30 C.F.R. 75.1725(c) or
(d).

 Mr. Hays testified that Mr. Hacker was aware of the fact

that the system was being serviced while it was in operation
because Mr. Hacker had instructed the servicemen to do so. Mr.
Hays also testified credibly that when he previously informed Mr.
Hacker that he could not grease the fittings while the system was
in operation, Mr. Hacker informed him that the system could not
be shutdown for greasing, and instructed him to grease the speed
reducers while the bearings were turning and informed him that
the system could be greased while it was in operation because he
had done so himself and knew that it could be done. Mr. Hays
stated that he knew it was illegal and unsafe to service the
system while it was in operation but did it anyway because he was
told that he would be replaced if he didn't, and he confirmed
that he asked Mr. Hacker to permit him to stay over his shift to
service the system while it was not in operation, but was
refused.

 Mr. Jerry Caudill testified that when he worked as a second

shift electrician, he was expected to service and oil the system
while it was in operation, and that Mr. Hacker and his section
foremen knew that he was servicing the system while it was in
operation because they observed him doing it. Mr. Caudill further
testified that he complained to his foremen about servicing the
equipment while it was running, but they did nothing about it. He
also informed Mr. Hacker on at least four different occasions
that it was dangerous, but that Mr. Hacker "wasn't going to hear
no excuses."

 Shift foreman and electrician Terry Richardson testified

that he had serviced the system while it was in operation and not
deenergized. Roof bolter Marty Lewis, who worked with Mr. Hays,
confirmed that he observed Mr. Hays greasing the system when it
was not deenergized. Miner operator Dewey Eldridge observed Mr.
Hays servicing the system while it was in operation and not
locked out. Bridge carrier operator David Combs testified that
while he observed Mr. Hays greasing and oiling the system, he
never observed him doing this while the system was in operation.

Page 37

~1885
However, he confirmed that the system power was on while Mr. Hays
serviced it, and he never saw the system shutdown or locked out
at the power center while this work was being done. Scoop
operator Clifton Lewis, who also worked with Mr. Hays at the time
of his discharge, testified that he observed Mr. Hays servicing
the system while it was in operation, and that it was never
deenergized or locked out while he was doing this work. Scoop
operator Gary Caudill also worked with Mr. Hays and he confirmed
that he observed Mr. Hays servicing the equipment while it was in
operation.

 The credible testimony of Mr. Hays and Mr. Jerry Caudill, as

corroborated by the credible testimony of the other equipment and
system operators, establishes that Mr. Hays serviced the system
while it was in operation. Although Mr. Hacker denied that he
ever observed anyone servicing the system while it was in
operation, I credit the testimony of Mr. Hays and Mr. Caudill
that Mr. Hacker and other foremen had observed them servicing the
system while it was in operation. I also credit the testimony of
electrician foreman Richardson who confirmed that he serviced the
system while it was in operation and not deenergized, and Mr.
Hays' testimony that Mr. Hacker would not allow the system to be
shutdown for greasing because he had greased it himself while it
was in operation and believed that it could be done.

 The credible and unrebutted testimony of Mr. Hays and Mr.

Jerry Caudill reflects that the servicing of the haulage systems
at all of the respondent's mines where they had worked was done
while it was in operation and that this was a standard practice
or procedure. Although management was aware of the fact that
servicing the system while it was in operation was contrary to
the law and exposed its service personnel to potential hazards
and injuries, there is no evidence that management ever issued
any instructions or adopted any safety rules prohibiting this
practice, and it never disciplined anyone for doing this.

 Notwithstanding the lack of any written or published company

policy requiring the system to be serviced while it was in
operation, the testimony of respondent's management personnel in
this case reflects that short of a mechanical breakdown in the
system, they would not approve of routinely shutting down the
system or scheduling a shutdown to allow its service personnel
ample time to grease, oil, or perform other normal and routine
servicing of the system while it was not in operation. Management
expected Mr. Hays to find the time during his shift to service
the system, preferably during the "belting up" and changing of
the miner bits, would not allow him to stay over and service the
system while it not operating, would accept no excuses or
explanations from him if he failed to service the system during
his shift, and apparently simply expected him to report the fact
that he could not service the system during his shift. Under all
of these circumstances, I conclude and find that management
condoned and

Page 38

~1886
tacitly approved of Mr. Hays' practice of servicing the system
while it was in operation. I further conclude and find that it
was not unreasonable for Mr. Hays to conclude that he was
expected and required to service the system while it was in
operation.

 Mr. Jerry Caudill testified that greasing some of the

fittings on the carrier, including the speed reducers, regardless
of whether they were centered or off-centered on the shaft, while
he was "riding" it or "on the run" between the machine and coal
rib would place him at risk of being caught against the rib or in
the conveyor chain or slide pan, and that he has had "close
calls" on more than one occasion while attempting to service the
system under these conditions. Electrician and foreman Richardson
believed that it was possible for someone to be injured or killed
while attempting to service the system while it was in operation.

 Although bridge carrier Combs testified that he can engage

an emergency stop control to stop the carrier from advancing and
stop the miner machine, and that he could observe Mr. Hays at all
times if he were servicing the system while it was moving if Mr.
Hays were standing erect or hunched over, he could not see if he
were lying down or on his knees greasing the fittings, and could
not see him if he were at the rear of the machine unless he
(Combs) turned around to look.

 Mr. Collins conceded that servicing the system while it was

in operation could result in the individual doing the work being
caught between the machine and the rib, or being run over, and
that this could result in serious injury or death. He also
conceded that it would be impossible to service a fitting which
is off-centered while the system is in operation.

 Mr. Hacker conceded that servicing the system while it was

in operation was illegal and unsafe. Although he alluded to
several carrier fittings which have extended fittings, he
confirmed that they were not equipped with grease caps and that
it would still be illegal to grease these fittings while the
system was running because he could be pinned against a belt
structure. He agreed that an electrician greasing the system
while the system power was off but not locked out, could be
injured if the power breaker was turned on.

 Having viewed Mr. Hays during the course of the hearing, I

find him to be a credible witness, and I take note of the fact
that Mr. Hacker had no reason to disbelieve his assertions that
the servicing of the system while it was in operation exposed him
to hazards and potentially serious or fatal injuries. Mr. Hays
believed that it was physically impossible to attach a grease
hose to an off-centered carrier speed reducer fitting while it
was turning on the shaft and while the system was in operation,

Page 39

~1887
and Mr. Collins agreed that this was true. Although Mr. Hays
indicated that he could physically attach a grease hose to a
fitting which was centered and not turning on the shaft, he
believed it was unsafe to do so and had to watch and stay out of
the way of the moving equipment while doing this, and that he
could be run over or pinned against the rib by the machine,
particularly if he were unaware that the bridge carrier operator
would moved the machine.

 Mr. Hays also believed that he could be seriously injured

while servicing the system while it was in operation, and that
none of the system fittings he was required to service had
extended fittings. He stated that he had to "ride" or lie on top
of the machine to grease the fittings when there was no room for
him to stand between the machine and the coal rib when the miner
was cutting coal in a belt entry. Because of the location of some
of the fittings he had to lay on top of the machine while it was
moving in order to reach them, and would have to position his
body between the coal rib and the machine to reach other
fittings. With regard to the five grease fittings located at the
bridge carrier block, he had to lay on the machine to reach them
and this exposed him to a hazard of coming in contact with the
mine roof.

 Given all of the aforementioned circumstances, I conclude

and find that Mr. Hays had a reasonable and good faith belief
that greasing, oiling, or servicing the haulage system in
question, including its component parts and bridge carrier speed
reducer with off-centered fittings which turned on a shaft, while
the equipment was energized and in operation or moving, would
expose him to dangerous safety hazards and possible serious or
fatal injuries. Although Mr. Hays may not have directly refused
to service the system while it was in operation, and he
acknowledged that he had previously serviced it while it was in
operation, I accept as credible his assertion that he was
instructed to do so by Mr. Hacker, that he reasonably believed
that he would be replaced if he did not follow these
instructions, and that he had reasonable grounds for believing
that management expected or required him to service the system
while it was in operation, regardless of any resulting hazard or
injury exposure.

 I conclude and find that the respondent required or expected

Mr. Hays to service the haulage system, including its component
parts, while it was in operation, and that his failure to do so
was tantamount to a work refusal. I further conclude and find
that this work refusal was reasonable and made in good faith, and
that it constitutes protected activity within the scope and
intent of section 105(c) of the Act.

Page 40

~1888
Mr. Hays' Communication of His Safety Concerns to Mine Management

 Mr. Garcia's suggestion that Mr. Hays should have discussed

his safety concerns with someone "higher up" in management is
rejected. The credible testimony establishes that Mr. Hays
specifically informed maintenance foreman Hacker of his safety
reasons for not servicing the haulage system immediately before
Mr. Hacker discharged him, and Mr. Hacker himself acknowledged
that this was true and that he had no reason to disbelieve Mr.
Hays. Rather than addressing Mr. Hays' concerns, or taking them
into consideration, Mr. Hacker summarily discharged him, and he
did so without any further inquiry as to the work which Mr. Hays
may have performed on the system prior to the discharge. The
credible and unrebutted testimony of Mr. Hays and Mr. Caudill
establishes that Mr. Hacker would accept no excuses for what he
believed was a failure by Mr. Hays to service the equipment.

 The credible testimony of Mr. Hays reflects that during a

meeting held a week or two prior to his discharge, and in the
presence of Mr. Hacker and Mr. Collins, he raised his safety
concerns about servicing the system while it was in operation,
and Mr. Collins acknowledged and believed that this was true.
Further, Mr. Hays' testified credibly that he had previously
voiced his safety concerns about servicing the system while it
was in operation with Mr. Hacker and complained to Mr. Hacker
about the matter when he worked at the No. 49 Mine, and that he
had "confronted" Mr. Hacker "face to face" about greasing the
speed reducers while the system was in operation.

 Under all of the aforementioned circumstances, I conclude

and find that Mr. Hays' concern and belief that the greasing and
servicing of the system while it was in operation was unsafe and
hazardous and exposed him to potential injuries was communicated
to mine management prior to his discharge, and that management
had a reasonable opportunity to address his safety concerns, but
did nothing about it. I further conclude and find that Mr. Hays'
communications were timely made and that they met the
requirements enunciated by the Commission in Secretary of behalf
of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February
1982), Secretary on behalf of John Cooley v. Ottawa Silica
Company, 6 FMSHRC 516 (March 1984); and Gilbert v. Sandy Fork
Mining Company, supra.

The Respondent's Defense

 The respondent takes the position that the complainant has

not established that he engaged in any protected activity and has
not established a prima facie case of discrimination. The
respondent argues that Mr. Hays' termination was not motivated in
any part by any protected activity, and that he was discharged
for not servicing other equipment which was found to be dry and
dusty and ungreased when it was examined by his supervisors

Page 41

~1889
(Collins and Hacker). The respondent points out that prior to the
inspection of this equipment by the supervisors, they were
unaware that Mr. Hays and Mr. Caudill were not lubricating those
parts properly, and until they discovered that grease fittings
were missing or broken, they had no knowledge that the work was
not being performed. After meeting with both miners, Mr. Hacker
questioned them and fired them both.

 The respondent argues further that at the time of the

discharge of Mr. Hays, Mr. Hacker knew about his "record of
previous misconduct," and attempted to find a niche for him at
the mine in spite of his feelings that he was the best of
workers. Although Mr. Hacker believed that Mr. Caudill had a poor
work record, when Mr. Hacker's superiors reviewed the dismissals
and discovered that Mr. Caudill had never been disciplined
before, they offered him reinstatement. Respondent concludes that
this "is the most compelling evidence of the respondent's true
motive," and that if the respondent had wanted to punish miners
for exercising their rights to safe working conditions it would
not have brought Mr. Caudill back to work.

 The respondent's termination notice of September 7, 1989,

reflects that Mr. Hays was terminated for "unsatisfactory
performance," and the explanation for this action is shown as
"Improper Servicing of Equipment." In its answer to the
complaint, respondent states that Mr. Hays was discharged "in
part" because he "had not serviced a grease fitting for the speed
reducer on the No. 1 bridge" (emphasis added). During his opening
statement at the hearing, the respondent's counsel stated that
Mr. Hays was discharged because of his failure "to service a
large number of the components that were within his
responsibility" and that "the single grease fitting on the speed
reducer shaft was merely the means by which his failure to do his
job was discovered" (Tr. 12). Counsel further stated that when
the speed reducer broke down, Mr. Hacker examined it and found
that it had not been greased. At the same time, he found other
pieces of equipment that had not been maintained and summoned Mr.
Hays to his office and interviewed him regarding his failure to
service "the equipment." Counsel concluded that Mr. Hays'
previous disciplinary record, coupled with his "egregious failure
to service any equipment on the day . . . or during the week
preceding his discharge" led to his termination (emphasis added,
Tr. 13).

 The complainant asserts that he was discharged because of

his refusal to grease the No. 1 bridge carrier speed reducer
grease fitting. Complainant argues that it is undisputed that
when Mr. Hacker met with him and Mr. Caudill immediately prior to
his discharge he showed them the offset grease fitting that Mr.
Collins had discussed with him earlier that afternoon, and asked
them when they had last serviced it. Complainant maintains that
at no time during his conversation with Mr. Hacker did

Page 42

~1890
Mr. Hacker claim that he had found other broken grease fittings
on the section, nor did he accuse him or Mr. Caudill of failing
to service other equipment on the section. Complainant points out
that during his extensive trial testimony Mr. Hacker did not
claim that he had discussed other broken grease fittings and/or
the failure to service other equipment with him or Mr. Caudill,
and that Mr. Caudill unequivocally testified that they were both
fired "over that grease cap." Complainant further points out that
the respondent's general manager Garcia testified that he was
discharged for failing to lubricate the continuous haulage system
and that Mr. Garcia was not told that management had found
numerous broken grease fittings, or that the complainant had also
failed to service other equipment on the section.

 The complainant states that Mr. Hacker admitted that prior

to the day of the discharge, there had not been any reports of
broken grease fittings on the section despite the fact that the
individual equipment operators were required to inspect their
equipment each shift prior to its operation. Complainant points
out that Mr. Hacker also admitted that he had been on the section
every other day prior to the discharge and never saw any of the
several broken grease fittings that he claimed to have found that
day. Complainant asserts that Mr. Hacker attempted to avoid this
inconsistency by stating that the grease fittings could not have
been broken for long (when he allegedly discovered them on the
day of the discharge) because otherwise breakdowns of the haulage
system would have occurred. Complainant concludes that this
explanation contradicts the respondent's argument that he had not
serviced any of the equipment on the section during the week
preceding his discharge.

 Complainant further concludes that had he failed to service

all of the equipment, it is clear that equipment breakdowns would
have occurred. However, there were no such breakdowns, and the
respondent admitted that the broken conveyor sprocket which
malfunctioned on the day of the discharge did not break because
of the failure to grease the offset fitting in question.
Complainant emphasizes the fact that although Mr. Hacker claimed
at his deposition that "most" of the grease fittings on the
haulage system were broken when he inspected the system, at
trial, he alleged that he had only found about six broken
fittings.

 The complainant points out that the respondent failed to

call any day shift or second shift foremen to testify to his
alleged failure to service the haulage system and other equipment
on the section, and failed to elicit testimony from any
supervisory or hourly employees regarding his otherwise allegedly
poor job performance. On the other hand, complainant states that
he called six former coworkers and equipment operators who
testified credibly that he was a good worker, and that Mr.
Collins admitted that he had not received any complaints from Mr.
Hacker, or

Page 43

~1891
anyone else, regarding his job performance prior to discovering
the broken grease fitting on the day of his discharge.

 The complainant asserts that the respondent's allegations

that he had not serviced any of the equipment on the section
during the week prior to his discharge and that he admitted this
to Mr. Collins on the day of the discharge are refuted by the
daily notes which he kept in order to keep track of the repair
work that needed to be done. Complainant points out that after
reviewing these notes during the hearing, Mr. Hacker stated that
the amount of work reflected by these notes was "very impressive"
and revealed a "hard working individual" who had put in a "very
rough day."

 The complainant argues that the hearing testimony of Mr.

Collins and Mr. Hacker is inconsistent with their prior
statements made to the MSHA special investigator during the
investigation of his complaint. Complainant points out that Mr.
Collins did not tell the investigator that he had examined other
equipment on the section after observing the broken grease
fitting on the day of the discharge, or that he had found other
broken fittings. Complainant states that Mr. Collins' statement
indicates that after he saw the broken grease fitting on the No.
1 bridge, he told Mr. Hacker to "come underground and look at the
bridge," and does not reflect that he asked Mr. Hacker to examine
the entire haulage system and the other equipment on the section.
With regard to Mr. Hacker, complainant argues that he did not
tell the investigator that the complainant had been discharged
for failing to service equipment other than the mobile bridge
carrier.

 Complainant asserts that Mr. Collins' testimony that the

complainant did not complain that it was unsafe to service the
haulage system while it was in operation at the time he asked
about the broken grease fitting is not credible in light of Mr.
Hacker's admission that the complainant raised this issue
immediately after being sent out of the mine. Complainant notes
that Mr. Collins, who testified in a previous safety
discrimination case, was found by Judge Melick not to be a
credible witness. Tolbert v. Chaney Creek Coal Corporation, 9
FMSHRC 580 at 583-584, 589 (March 1987).

 The complainant asserts that Mr. Hacker's lack of

credibility is plainly evidenced by his testimony regarding the
complainant's reassignment to the day shift electrician's job.
Complainant points out that although Mr. Hacker testified that he
considered the complainant to be an inept electrician who was not
interested in doing a good job, and claimed that the
complainant's previous foreman had told him that the complainant
would have to be replaced, Mr. Hacker transferred the complainant
to a production shift a couple of weeks before his discharge. The
complainant finds incredible Mr. Hacker's testimony that he does

Page 44

~1892
not usually try to put good electricians on his production shifts
and assigns his worst electricians to those shifts.

 The complainant also concludes that Mr. Hacker's testimony

that he told the complainant that he was not instructed to
service the haulage system while it was in motion is likewise
clearly not credible. In support of this conclusion, the
complainant points out that had Mr. Hacker just learned for the
first time that his electricians were servicing the haulage
system while it was in operation, and had he been concerned
enough to tell them they were not supposed to do this, he would
certainly have investigated the situation further. However, Mr.
Hacker made no further inquiry to determine whether the system
was being greased while it was in operation, and when the
complainant complained to him about the dangers of servicing the
system while it was in operation, he was precipitately
discharged. Complainant concludes that his abrupt discharge
clearly indicates that Mr. Hacker knew that the haulage system
was regularly being serviced while it was in operation, and that
his refusal to service the fitting in question was the reason for
his discharge.

 With regard to the three prior disciplinary actions taken

against him, the complainant takes the position that they are
irrelevant to the issue presented in this case, and he points out
that in each case he refused to sign the disciplinary slips
because he disagreed with the reasons for the stated discipline.
Complainant also points out that Mr. Hacker confirmed that he was
never disciplined by the respondent for failing to notify
management of repairs that needed to be made. The complainant
points out that if he were discharged for his protected refusal
to service the offset grease fitting in question, then his
discharge clearly was in violation of the Act. If, on the other
hand, he was discharged for the unprotected failure to service
any of the equipment on the section during the week preceding his
discharge, as claimed by the respondent, his discharge did not
contravene the Act. However, even assuming that this was a mixed
motivation case, complainant concludes that his prior
disciplinary record, i.e., his unprotected activities, would not
be at issue, Secretary of Labor on behalf of Pasula v.
Consolidation Coal Company, 2 FMSHRC 2786, 2800 (1980), rev'd on
other grounds sub nom. Consolidation Coal Company v. Marshall,
663 F.2d 1211 (3d Cir. 1981).

 Complainant asserts that the respondent failed to introduce

any concrete evidence to support its attempts to establish that
he may have had time during the final week of his employment in
which he could have serviced the eight offset grease fittings
that he refused to grease while the haulage system was in
operation, and that its trial testimony in this regard was mere
conjecture. The complainant believes that the respondent's
defense in this case is misplaced and that the gravamen of this
case is

Page 45

~1893
that the respondent required him to spend 1-1/4 hours or more
every shift performing an unsafe and unlawful act, namely,
servicing the continuous haulage system while it was in
operation.

 The complainant concludes that the fact that he regularly

acceded to the respondent's unlawful requirement by servicing
most of the system while it was in operation does not absolve the
respondent of liability for his unlawful discharge for refusing
to service the offset grease fitting on the No. 1 bridge.
Complainant further concludes that the fact that there
theoretically may have been 5 minutes available to him during
which the haulage system could have been deenergized and the
fitting in question serviced, is irrelevant, and that the
respondent cannot dissolve its unlawful conduct by surmising that
there may have been time when its illegal requirement could have
been lawfully performed.

 With respect to the respondent's assertion that he should

have reported to management each day that he had not greased the
offset fitting on the haulage system, complainant points out that
there is no precedent or legal justification for requiring a
miner to daily report his refusal to perform a hazardous job
assignment which his employer requires as a condition of
employment. The complainant points out that he had complained
about the respondent's illegal requirement prior to his discharge
but his complaints were ignored. He was then given the Hobson's
choice of his safety or his job, an action which the complainant
concludes was prohibited by the Act.

 The evidence in this case establishes that Mr. Hays was

expected or required by management to service the continuous
haulage system while it was in operation. In addition to these
duties, Mr. Hays was responsible for the daily servicing of a
roof-bolting machine and the gathering arms of the
continuous-mining machine. He was also assigned other duties on
the section. In the event of any haulage equipment breakdown, Mr.
Hays was responsible for making the repairs. Contrary to Mr.
Hacker's belief that Mr. Hays was not a good electrician, Mr.
Hacker himself conceded that such repairs were accomplished by
Mr. Hays as required, and the system would be placed back into
operation immediately. Further, after reviewing Mr. Hays'
notebook entries reflecting the work he performed during the time
period prior to his discharge, Mr. Hacker agreed that it appeared
that Mr. Hays was a hard working individual. Although the
respondent asserted that these work entries were self-serving,
and suggested that they may have been fabricated, it nonetheless
stipulated that the notebook was authentic, and I find it to be
credible and probative. In addition, the credible and unrebutted
testimony of several of the equipment operators reflects that Mr.
Hays was doing a good job in servicing their equipment, and they
had no complaints about his job performance. Mr. Collins

Page 46

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confirmed that he was not concerned about Mr. Hays' job
performance prior to his discharge, and had received no
complaints about Mr. Hays prior to this time.

 Contrary to the respondent's assertion that Mr. Hays failed

to service any equipment on the section during the week prior to
his discharge, the credible unrebutted testimony of Mr. Hays and
the daily work log which he maintained establishes that he
greased and serviced several bridge carrier components, a roof
bolter, a continuous-mining machine, conveyor chains, scoops, and
made necessary repairs. Except for 2 days when he noted that he
was off on September 3 and 4, 1989, because of labor day, all of
this work was accomplished during the period August 29, 1989
through September 6, 1989, the day before his discharge. In
response to several bench questions concerning these work
entries, Mr. Hacker conceded that some of the work performed was
on the continuous haulage system, and that it was obvious to him
that the equipment was being serviced while it was in operation
(Tr. 209-210). He also confirmed that he had no knowledge of the
work performed by Mr. Hays on the section on the day of his
discharge and did not ask him about his work that day (Tr. 212).

 General mine manager Garcia testified that he learned of Mr.

Hays discharge through a telephone call, and he could not recall
any conversations with Mr. Collins about the discharge, nor could
he recall receiving any information from Mr. Hacker about the
matter. Mr. Garcia further testified that he could not recall
being told that Mr. Hays was discharged for any reason other than
his failure to lubricate the haulage system. He confirmed that
the discharge "was basically a failure to perform the job as he
was assigned is generally the way it was put to me."

 Mine Superintendent Collins testified that he believed that

Mr. Hays was fired for not servicing the entire haulage system,
rather than the one offset grease fitting on the No. 1 bridge.
Mr. Collins further testified that when he checked the haulage
system on the day of the discharge he found other broken fittings
which had not been greased, and that after Mr. Hays was fired Mr.
Hacker informed him that he had fired Mr. Hays for "not servicing
equipment." However, Mr. Collins confirmed that he was not
involved in the decision to fire Mr. Hays, did not discuss Mr.
Hacker's decision to fire Mr. Hays with Mr. Hacker, did not speak
with Mr. Hacker about Mr. Hays' job performance, and did not
suggest to Mr. Hacker that any disciplinary action needed to be
taken against Mr. Hays.

 Mr. Hacker testified that when he inspected the equipment on

the section after Mr. Collins summoned him underground on
September 7, 1989, he did not speak with Mr. Hays about the
servicing of the equipment. Mr. Hacker stated that upon
inspection of the haulage system, the roof-bolting machines, and
one of

Page 47

~1895
the scoops he found "a lack of servicing," and found six or more
broken grease fittings on all of the bridge carriers. He then
retrieved the No. 1 bridge carrier broken sprocket grease fitting
and cap which needed repair and took it with him to his office.
He then met with Mr. Caudill and Mr. Hays in his office and
showed the fitting to Mr. Caudill and Mr. Hays and asked for an
explanation as to why "they had not serviced," and Mr. Caudill
informed him that he did not have time "to service," and Mr. Hays
informed him that he could not "service that while it is running"
(Tr. 152). Mr. Hacker confirmed that Mr. Hays also informed him
that it was unsafe to service the haulage system while it was
operating (Tr. 190).

 Mr. Hacker testified that he discharged Mr. Hays for

"improper servicing of equipment" because "he had not serviced it
the way he was instructed to" (Tr. 184-185). He admitted that he
informed the MSHA special investigator that he fired Mr. Hays
because he had not serviced the mobile bridge carrier, and that
the bearings, grease caps and speed reducers had not been
serviced within the past week (Tr. 185). He confirmed that he
told the investigator that he fired Mr. Hays "over the MBC," and
did not mention the roof-bolting machine, continuous miner and
the other equipment on the section (Tr. 186).

 In response to several bench questions, Mr. Hacker stated

that he concluded that the broken No. 1 bridge carrier speed
reducer sprocket fitting had not been serviced because it showed
the lack of any greasing when he removed the cap. Mr. Hacker
further stated that when he showed that part to Mr. Caudill and
Mr. Hays, he asked them why they had not reported that it was
broken, and that he showed them the part "because that was a
topic to get started on the servicing of the equipment" (Tr.
231). I find no evidence or credible testimony from Mr. Hacker
supporting any reasonable conclusion that he discussed any
equipment, other than the offset broken speed reducer fitting in
question with Mr. Hays or Mr. Caudill at the time of their
discharge. I conclude and find that it was reasonable for Mr.
Hays to believe that he was being discharged for his failure to
grease or service the broken speed reducer which Mr. Hacker
displayed during their meeting, and all of the testimony
regarding this issue leads me to conclude that this was in fact
the case.

 I find no credible or probative evidence to support the

respondent's assertion that Mr. Hays was discharged because of
his failure to service any of the equipment on the section during
the week immediately preceding his discharge, or because of his
failure to service other parts on the continuous haulage system.
The "other parts" of the haulage system which the respondent has
alluded to as not being properly serviced or greased by Mr. Hays
appear to be the six additional broken and ungreased fittings
which Mr. Hacker claimed he found during his inspection of the
system on the day he discharged Mr. Hays. However, Mr. Hacker

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~1896
confirmed that none of these fittings could have been serviced or
greased because they were broken off.

 Although Mr. Hacker testified that each mobile carrier has

nine different locations which have extended fittings, but no
grease cups, there is no evidence that the six fittings alluded
to by Mr. Hacker were equipped with extended fittings. Even if
they were, Mr. Hacker conceded that it would be illegal to
service those fittings while the system was in operation because
it would be dangerous (Tr. 168). I also take note of the fact
that in his deposition, Mr. Hacker stated that the haulage system
had no extended fittings, and he believed that this was the case
at the time he discharged Mr. Hays. He also reconfirmed the fact
that he knew it was illegal to service any of those fittings
while the equipment was in operation, and that the system had to
be deenergized and blocked against motion when it was being
greased (Tr. 194, 196-197, 201). I also take note of Mr. Hacker's
prior statement to the MSHA investigator that "the bearings,
grease caps and speed reducers had not been serviced within the
past week," but I find no evidence to establish that these
components included extended grease fittings. The extended
fittings mentioned by Mr. Hacker had no grease cups, and the
evidence establishes that the speed reducers have offset fittings
which are hazardous to service while the equipment is in motion.

 Although Mr. Collins and Mr. Hacker testified that they

expected Mr. Hays to report any problems or lack of available
time to service the system and the equipment, I find no evidence
to support any conclusion that Mr. Hays was discharged for
failing to report his inability to service the system during his
regular work shift. Mr. Hays' note book notations, which I find
credible, reflect that he periodically reported equipment
malfunctions and other problems. The record also reflects that
Mr. Hays made necessary repairs on the section during the period
prior to his discharge.

 Mr. Hacker acknowledged that no one from management ever

complained about Mr. Hays' failure to comply with the maintenance
"card system," and that he had never "written up" Mr. Hays for
not informing management about any needed equipment and repairs.
He also confirmed that the electricians did not always personally
report to him work which was needed to be done and that they
frequently called a lady in the light house and that she would
take their reports. The respondent's suggestion that Mr. Hays may
have waived any protected rights under the Act by continuing to
service the haulage system knowing that it was unsafe is
rejected. I believe Mr. Hays' testimony that Mr. Hacker gave him
no choice and would have replaced him if he failed to service the
system while it was in a production mode, and the record
establishes that management did not address Mr. Hays' complaints
in this regard.

Page 49

~1897
General manager Garcia testified that there is no specific
company rule dictating when an employee should be discharged, and
that the fact that an employee has been previously suspended does
not necessarily or automatically provide grounds for a discharge.
He indicated that any decision to discharge an employee would
"depend on the circumstances." He confirmed that in Mr. Hays'
case, he and company personnel manager Richard Elliott reviewed
the personnel files of Mr. Hays and Mr. Caudill subsequent to
their discharge by Mr. Hacker. He confirmed that on the basis of
this review, Mr. Hacker's decision to discharge Mr. Hays was
allowed to stand, but Mr. Caudill's discharge was changed to a
3-day suspension because his file did not contain any recent
prior disciplinary actions.

 With regard to Mr. Hays' prior disciplinary actions,

although Mr. Hacker may have known about them at the time he made
the decision to discharge Mr. Hays, and may have mentioned them,
I find no evidence that he discussed these prior actions with Mr.
Hays in any detail, or informed him that they impacted on his
discharge. The termination notice given to Mr. Hays does not
mention these prior disciplinary actions. I agree with the
complainant's arguments that these prior actions are irrelevant
to the issue presented in this case. Mr. Hays was not discharged
for being a poor electrician, and I conclude and find that but
for his refusal or failure to service the No. 1 bridge offset
grease fitting which he reasonably believed was hazardous, the
respondent would not have fired him.

 On the basis of the foregoing findings and conclusions,

which I find are supported by a preponderance of all of the
credible and probative evidence adduced in this case, I conclude
and find that Mr. Hays has established a prima facie case of
discrimination, and the respondent's arguments and defense to the
contrary are rejected. I conclude and find that Mr. Hays was
unlawfully discriminated against and discharged by the respondent
on September 7, 1989, for engaging in activity protected under
section 105(c) of the Act, and his complaint of discrimination IS
SUSTAINED.

                   Relief and Remedies

 The remedial aspects of this case were held in abeyance

pending my adjudication of the merits of the complaint. The
record reflects that subsequent to his discharge on September 7,
1989, Mr. Hays was out of work for approximately one month, and
since that time he has been employed by another coal mine
operator as an electrician. In his complaint, Mr. Hays requested
the following relief:

      (1) A finding that the respondent discriminated against
      him in violation of section 105(c)(1) of the Act by
      discharging him on September 7, 1989.

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~1898
(2) An order requiring his reinstatement with full backpay and
benefits, plus interest, at the same rate of pay, on the same
shift, and with the same status and classification that he would
now hold had he not been unlawfully discharged.

      (3) An order requiring that all references to his
      unlawful discharge be expunged from his personnel file
      and/or from any and all records maintained by the
      respondent.

      (4) An order requiring him to be reimbursed for all
      expenses incurred in the institution and prosecution of
      this proceeding, including attorneys fees.

      (5) An order requiring the posting of the decision in
      this proceeding at the mine where he is reinstated and
      at all of the respondent's other underground mines in
      eastern Kentucky, said postings to be in conspicuous,
      unobstructed places where notices to employee are
      customarily posted, each for a period of 60 consecutive
      days.

      (6) The imposition of a civil penalty against the
      respondent for unlawfully discharging him.

      (7) Any additional relief as is deemed just and proper
      to make him whole.

                         ORDER

 1. Respondent IS ORDERED to reinstate Mr. Hays to his former

position with full backpay and benefits, with interest, at the
same rate of pay, on the same shift, and with the same status and
classification that he would now hold had he not been unlawfully
discharged.

 2. Respondent IS ORDERED to expunge from Mr. Hays' personnel

file and/or any company records any reference to his discharge of
September 7, 1989.

 3. Respondent IS ORDERED to reimburse Mr. Hays for all

reasonable expenses incurred by him in the institution and
prosecution of his discrimination complaint, including reasonable
attorneys fees.

 The parties ARE ORDERED to confirm with each other during

the next thirty (30) days with respect to the aforesaid remedies
due the complainant, and they are encouraged to reach a mutually
agreeable resolution of these matters. Any stipulations or
agreements in this regard shall be filed with me within the next

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30 days. In the event the parties cannot reach an agreement, they
ARE FURTHER ORDERED to file their respective positions with me in
writing, with any relevant documentation and supporting
arguments, within the next 30 days. If the parties believe that a
further hearing may be required on the remedial aspects of this
matter, they should so state.

 I retain jurisdiction in this matter until the remedies due

the complainant are finalized. Until those determinations are
made, and pending a finalized dispositive order by the
undersigned presiding judge, my decision in this matter is not
final.

                             George A. Koutras
                             Administrative Law Judge

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On this page

Decision type

ALJ decision

Docket

KENT 90-59-D

Decided

September 28, 1990

Presiding judge

George A. Koutras

Outcome

Citations affirmed

Precedential status

Reviewed by the Commission

Checked against source

2026-08-16

Cited standards

30 U.S.C. § 815(c)(1) 30 U.S.C. § 815(c)(2) 30 U.S.C. § 815(c)(3) 29 C.F.R. § 2700.1

Official source

Read the official release (fmshrc.gov)

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