Price v. Monterey Coal Company

Plain-English summary

Paula Price challenged a four-day suspension and loss of mine access after she did not comply with Monterey Coal's requirement that miners wear integrated metatarsal boots. The Commission held that her conduct was a work refusal, but that the refusal was not reasonable or protected because the footwear rule was intended to improve safety and the record did not show a sufficiently serious hazard from the boots. The Commission reversed the finding of discrimination, dismissed the complaint, and vacated the ALJ's award of costs and attorney fees.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 30 U.S.C. § 815(c)(3); 29 C.F.R. § 2700.40(b)
• Outcome: The discrimination finding was reversed, the complaint was dismissed, and the costs and attorney-fee award was vacated.
• Key point: A work refusal based on discomfort from required protective footwear is not protected when the record does not establish a sufficiently serious hazard and compliance was reasonably available.

Full text (FMSHRC public release)

CCASE:
PAULA PRICE V. MONTEREY COAL
DDATE:
19900813
TTEXT:

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
August 13, 1990

PAULA PRICE

v. Docket No. LAKE 86-45-D

MONTEREY COAL COMPANY

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

DECISION

BY: Ford, Chairman; Backley, Lastowka and Nelson, Commissioners

This discrimination complaint is before the Commission by way of
cross-petitions for review of Administrative Law Judge Gary Melick's
decision on the merits issued April 12, 1989, 11 FMSHRC 614, and his final
disposition on costs and attorney fees issued June 19, 1989, 11 FMSHRC
1099. Monterey Coal Company seeks review of Judge Melick's holding that it
violated section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 815(c)(the Mine Act), by suspending Paula Price for four days in
retaliation for a statutorily protected work refusal. Price seeks review
of the judge's significant reduction in her claimed costs and attorney
fees. For the reasons that follow, we reverse the judge's holding that
Monterey discriminated against Price in violation of the Mine Act, we
dismiss the complaint and we vacate the award of costs and fees.

Paula Price first filed her discrimination complaint with the
Secretary of Labor on July 28, 1985 pursuant to section 105(c)(2) of the
Mine Act 1/ alleging that Monterey's newly imposed requirement that all

1/ Section 105(c)(2), 30 U.S.C. 815(c)(2), provides as follows:

Any miner or applicant for employment or
representative of miners who believes that he has

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been discharged, interfered with, or otherwise
discriminated against by any person in violation of
this subsection may within 60 days after such violation
occurs, file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint,
the
(Footnote continued)

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miners wear integrated metatarsal work boots had been discriminatorily
applied to her and others who could not obtain properly fitting
footwear. 2/ On August 26, 1985, Price supplemented her complaint by
charging that she had not been allowed to work for two days and was
thereafter suspended for three days because she "did not have proper
boots to wear." 11 FMSHRC 619. By letter of January 7, 1986, MSHA

Fn. 1/ continued

Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation
to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds
that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement
of the miner pending final order on the complaint. If
upon such investigation, the Secretary determines that
the provisions of this subsection have been violated,
he shall immediately file a complaint with the
Commission, with service upon the alleged violator and
the miner, applicant for employment, or representative
of miners alleging such discrimination or interference
and propose an order granting appropriate relief. The
Commission shall afford an opportunity for a hearing
(in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3)
of such section) and thereafter shall issue an order,
based upon findings of fact, affirming, modifying, or
vacating the Secretary's proposed order, or directing
other appropriate relief. Such order shall become
final 30 days after its issuance. The Commission
shall have authority in such proceedings to require a
person committing a violation of this subsection to
take such affirmative action to abate the violation as
the Commission deems appropriate, including, but not
limited to, the rehiring or reinstatement of the miner
to his former position with back pay and interest.
The complaining miner, applicant, or representative
of miners may present additional evidence on his own
behalf during any hearing held pursuant to this
paragraph.

30 U.S.C. 815(c).

Page 4

2/ Integrated metatarsal work boots are boots equipped with a permanent
protective shield incorporated into the boot which protects the top of
the foot between the ankle and the toes.

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informed Price that after its investigation of the matter it had concluded
that her complaint of discrimination "ha[d] been satisfied and that no
further pursuit of the complaint [was] required." 11 FMSHRC 620. MSHA
also informed Price of her right to file a complaint with the Commission on
her own behalf pursuant to section 105(c)(3) of the Mine Act, 3/ which she
did on January 24, 1986. Id.

Twelve days of hearings on the merits ensued during late 1986 and
early 1987. As post-hearing briefing was concluding, the Commission
issued its decision in Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327
(August 1987), wherein the Commission invalidated Commission

3/ Section 105(c)(3), 30 U.S.C. 815(c) provides as follows:

Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in
writing, the miner, applicant for employment, or
representative of miners of his determination whether
a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this
subsection have not been violated, the complainant
shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination
or interference in violation of paragraph (1). The
Commission shall afford an opportunity for a hearing
(in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3)
of such section), and thereafter shall issue an order,
based upon findings of fact, dismissing or sustaining
the complainant's charges and, if the charges are
sustained, granting such relief as it deems
appropriate, including, but not limited to, an order
requiring the rehiring or reinstatement of the miner to
his former position with back pay and interest or such
remedy as may be appropriate. Such order shall become
final 30 days after its issuance. Whenever an order is
issued sustaining the complainant's charges under this
subsection, a sum equal to the aggregate amount of all
costs and expenses (including attorney's fees) an
determined by the Commission to have been reasonably
incurred by the miner, applicant for employment or
representative of miners for, or in connection with,
the institution and prosecution of such proceedings
shall be assessed against the person committing such

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violation. Proceedings under this section shall be
expedited by the Secretary and the Commission. Any
order issued by the Commission under this paragraph
shall be subject to judicial review in accordance with
section 106. Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 an
110(a).

30 U.S.C. 815(c)(3).

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Procedural Rule 40(b), 29 C.F.R. 2700.40(b), by holding that a section
105(c)(3) complaint could not be filed in the absence of a Secretarial
determination that no violation of section 105(c) had occurred. Finding
that the Secretary's January 7, 1986, letter to Price was not a
determination that no violation had occurred, the judge held that he
lacked jurisdiction to continue the proceeding and dismissed the case.
9 FMSHRC 1662 (September 1987).

Price's petition for review of the judge's dismissal order was
granted by the Commission on October 13, 1987. Meanwhile, the U.S. Court
of Appeals for the District of Columbia Circuit reversed the Commission's
retroactive application of its revocation of Rule 40(b) in Gilbert supra.
Gilbert v. FMSHRC 866 F.2d 1433 (D.C. Cir. 1989). Accordingly, the
Commission on February 28, 1989, vacated its direction for review and
remanded the case to the judge to complete the record and enter a decision.
11 FMSHRC 183 (February 1989). On remand the judge issued his April 12,
1989, decision on the merits, 11 FMSHRC 614; and his June 19, 1989,
disposition of costs and fees, 11 FMSHRC 1099, both presently on review.

Monterey Coal Company operates a large underground coal mine, the
Monterey No. 2, in Albers, Illinois at which Paula Price is employed.
Sometime prior to early 1985, Monterey conducted studies of foot injuries
at its various operations and determined that those injuries could be
significantly reduced if miners wore metatarsal protective work boots.
The company also determined that greater protection would be provided if
the metatarsal shields were integrated into the miners' boots rather
than by means of temporary clip-on metatarsal guards which had not passed
American National Standards Institute (ANSI) standards for foot protection.
11 FMSHRC 622-23. Monterey began discussing its integrated metatarsal
boot policy with the United Mine Workers of America (UMWA) safety and
communications committees in February of 1985, and by a series of
announcements in April and May of 1985, declared that all miners would be
required to report to work with integrated metatarsal boots beginning
July 15, 1985. R. Ex. 1.

In response to a suggestion by the UMWA, Monterey agreed to pay
for the first pair of boots so long as they were provided by one of
two selected vendors (Hy-Test and Iron Age) who provided "shoemobile"
services to the mine where boots could be fitted and selected. Miners
were permitted to secure conforming boots from any source but would
only be eligible for free boots ordered from the two selected vendors.
11 FMSHRC 623; Tr. 883, 1065-1070. Miners were informed that both
vendors could make any size as a special order, 11 FMSHRC 623, but that
such orders should be placed as soon as possible. Resp. Ex. 1. The
vendors were scheduled to visit the mine three times each during the

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latter half of June. Id.

Anticipating that some miners might have difficulty securing the
required shoes by the July 15, 1985, deadline, Monterey advised any such
miners to so inform the safety department. A list of those miners was
drawn up and provision was made for them to wear temporary clip-on
metatarsal guards until the boots on order arrived; the general policy,
however, was that miners who reported for work after the deadline without

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integrated metatarsal boots would not be allowed to work. 11 FMSHRC 623.
Price was unable to secure from the shoemobile a pair of Hy-Test boots she
had selected, so an order was placed and her name was added to the list of
miners awaiting boots. Her pair apparently arrived on time, however, and
she reported for work in them on July 16, 1985. Id. Price experienced
discomfort with the new boots and complained to her foreman, Don Overturf,
and to an unidentified clerk in the safety department. She asked that she
be allowed to alternate wearing her new (Hy-Test) boots and her old (Red
Wing) boots equipped with temporary clip-on guards until the new pair was
broken in. The safety clerk told Price he had no authority to grant such
an exemption. From July 16 to July 19, 1985, Price described her
discomfort as increasing from redness to chafing, to raised and loosened
skin across the top of her arch and toes, to blistering. She also
complained that the boots caused pains in her heels at work and "charley
horses" in her legs when she tried to sleep at home.

On July 19, Price showed her feet to foreman Overturf who reported
observing redness but no blisters. In any event, Price left the mine
during the shift on July 19 and reported to the nurse's station. 11 FMSHRC
624-626. The nurse's report also showed redness but no blisters. R. F. 5,
Attach. 2. The following day Price visited a doctor who prepared a note
indicating that she had vesicles (small blisters) on her feet and that she
should not wear the new boots. 11 FMSHRC 626. Upon returning to work on
her next scheduled shift of July 22, 1985, Price presented the note to Ben
Chauvin, the mine shift manager, and filed a safety grievance regarding the
boot policy. She was given a one-week exemption from the new boot policy
and was permitted in the interim to wear her old boots with temporary
clip-on guards. 11 FMSHRC 627.

On July 24, 1985, Price filed a second grievance regarding the
company's refusal to excuse her absence for part of her July 19, 1985,
shift and for refusing to treat her foot problem as a work-related injury.
The grievance was settled on July 26, 1985, by the following agreed-upon
terms:

The appropriate manufacturing representative shall
be contacted regarding this employee's shoes. After
such contact is made and a determination given by the
manufacturer, the employee shall make arrangement for
providing footwear that meets management standards for
metatarsal shoes.

It was agreed that Price's boots would be returned to Hy-Test to determine
whether they were defective. Id. (Price contended that the boots had
"stretched-out." Tr. 657). Price's exemption from the boot policy was

Page 10

extended until such time as the boots were returned or new boots were
provided. Hy-Test responded that the boots were not defective but were too
big, and sent a replacement pair of a narrower width with the proviso that
Price should be sure the new ones fit before she wore them underground.
11 FMSHRC 627.

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Price received the replacement pair on August 12, 1985 and wore
them at home in an attempt to break them in, but found that she could not
"keep them on [her] feet for more than an hour." 11 FMSHRC 617. Shift
manager Chauvin became aware on August 15, 1985 that Price had received
the replacement pair, and at that point he informed Price that she would
no longer be exempt from the policy and that she would have to report to
work on August 19, 1985, her next working day, with integrated metatarsal
boots. 11 FMSHRC 627. 4/ Price thereupon visited a bootery in an attempt
to have the temporary clip-on guards attached permanently to her old Red
Wing boots but, according to Price, she was told it could not be done for
"liability reasons." On August 19, 1985, Price reported for work wearing
her old boots and her own set of temporary clip-on guards. She was refused
access to the mine and marked AWOL for the day. 11 FMSHRC 628. Price then
secured another doctor's note stating that she required properly fitting
boots. She also called Hy-Test to complain that the second pair of boots
did not fit and was advised to return them to Monterey's mine warehouse so
that a third pair could be provided. On August 20, 1985, after returning
the second pair of boots to the warehouse, Price once again reported for
work wearing her old boots and temporary clip-ons. Chauvin again denied
her access to the mine and marked her AWOL. He also told her that if she
failed to appear the following day with integrated metatarsal boots she
would be suspended and perhaps discharged. 11 FMSHRC 628-29.

Price made attempts to secure proper boots that day but was told
they would have to be specially ordered which would take two weeks. The
scenario was repeated at the beginning of the August 21, 1985 shift and
when Price and UMWA safety committeeman Burkholder complained to mine
superintendent David Lange, he informed her that she was suspended until
August 26, 1985, at which time she would have to report to work in boots
with integrated metatarsals or risk being discharged. On August 22, 1985,
Price met with safety superintendent Gordon Roberts and asked whether she
could comply with the boot policy by having temporary clip-on guards
attached permanently to her old boots by a cobbler. After conferring with
other Monterey officials, Roberts approved this means of compliance and a
notice to that effect was posted at the mine. Id. Thereafter Price
reported for work on August 26, 1985 in her old boots with the clip-ons
permanently attached and was allowed back into the mine. 11 FMSHRC 618,
629.

On August 28, 1985, the UMWA on Price's behalf filed a grievance
seeking pay for the four days she was marked AWOL or suspended (August 19,
20, 21 and 22) as well as pay for an "idle day" Price claimed she was
entitled to work (August 23) and out-of-pocket expenses connected

4/ The ALJ's decision indicates that Chauvin apparently learned of Price's

Page 12

receipt of the second pair of boots and issued his ultimatum on August 18,
1985. This must be error. August 18, 1985, was a Sunday, a non-working
day at the mine. Furthermore, both Price (post-hearing brief at p. 16) and
Monterey (brief on review at p. 8, fn 11) agree that the correct date was
August 15, 1985.

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with the grievance. The grievance was settled by the union for four days'
pay in return for the withdrawal of Price's other grievance demands but
Price was not present at the time the settlement was entered into. Id.
Unsatisfied with the terms of the settlement, Price informed MSHA on
December 16, 1985 that while she had been reimbursed four days' pay, she
felt she was still entitled to the "idle day" pay and to have all
references to the dispute removed from her file. 11 FMSHRC 619.

As described above, the Secretary responded that her complaint "ha[d]
been satisfied" and that further pursuit of the complaint was not required.
In her subsequent section 105(c)(3) filing with the Commission, Price again
requested the "idle day" pay and removal of all references to the dispute
from her file. 11 FMSHRC 621. After a preliminary hearing before the ALJ,
held July 9, 1986, Price added claims for her "expenses related to the
litigation of her complaint" and "a pair of boots that fit." Id.

In his decision on the merits, the judge reduced what he described as
Price's "somewhat rambling and ambiguous complaints" to the following basic
complaint: that Price "was suspended from work by Monterey because she in
essence refused to perform work under a work rule that was unhealthful and
unsafe as applied to her." 11 FMSHRC 622. 5/ This distilled complaint
provided what the judge termed a "framework" for analyzing the case in
terms of work refusal precedents established by the Commission.

Reviewing the evidence the judge determined: that Price's first pair
of boots was ill-fitting and caused injuries to her feet; that Price was
unsuccessful in breaking in the second pair of boots; that ill-fitting
boots would present a hazard of possible infection from abrasions and
blisters, or could cause a stumbling hazard or interfere with her safe
evacuation of the mine in an emergency; and that Price had made good faith
efforts to secure properly fitting boots before and during the period of
her suspension. On those bases the judge concluded that Price's continued
refusal to comply with Monterey's work rule requiring the wearing of
integrated metatarsal boots from August 19 through August 22, 1985,
constituted a protected work refusal based on a good faith reasonable
belief that it would have been hazardous to comply with the rule.
11 FMSHRC 622, 630.

The judge also found that Price had sufficiently communicated the
hazards associated with her wearing ill-fitting metatarsal boots to

5/ The judge made note of other alleged acts of discrimination in Price's
post-hearing brief but held they were not properly before him since they
had not first been presented to the Secretary under section 105(c)(2).
In short, he held that Price had "neither exhausted her administrative

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remedies nor met a statutory condition precedent." 11 FMSHRC 622, fn. 4.
The judge also noted that Price's underlying complaint had not been amended
to include the additional allegations nor had Price or her attorney
complied with Commission Rule 42(a), 29 C.F.R. 2700.42(a), dealing with
the contents of a discrimination complaint. Id.

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various Monterey officials, including foreman Overturf and shift manager
Chauvin. Lastly, the judge concluded that Monterey's refusal to allow
Price to work from August 19 through August 22, 1985, was motivated solely
by her refusal to wear integrated metatarsal boots. 11 FMSHRC 630.

Having found protected activity and adverse action motivated solely
by that activity, the judge sustained Price's complaint with respect to
the loss of four days' work while she was marked AWOL or on suspension. 6/
He also held that Price was entitled to recover her costs associated will
pressing her complaint in both the proceeding before him and in the
grievance proceeding. Lastly, the judge directed Monterey to delete from
its records any references to disciplinary action taken against Price for
her refusal to wear integrated metatarsal boots. The judge denied,
however, Price's request for a company-paid pair of integrated metatarsal
boots since she had waived such an entitlement by requesting to wear her
old boots with clip-on guards permanently attached. He also denied her
claim for compensation for the "idle day" of August 23, 1985. The judge
thereupon directed the parties to submit written statements and responses
with respect to the costs to be awarded.

In the supplemental proceeding to determine fees and costs, Price
submitted the following claims: $187.36 incurred in connection with her
grievance proceeding: $4,250.98 in costs of prosecuting her section
105(c)(3) claim; and $24,107.79 in attorney's fees. Monterey opposed the
award of costs or fees on the grounds that they were not authorized under
the circumstances of the case and were, in any event, well in excess of
"any conceivable fee and expense entitlement." 11 FMSHRC 1099. Monterey
argued that Price was foreclosed from recovering costs associated with her
labor grievance since that had been settled by the company's payment of
the four days' pay in return for the dropping of all other claims. The
judge, however, dismissed the challenge on two grounds. First, the costs
incurred by Price in processing her grievance were directly related to the
development of evidence necessary for the section 105(c)(3) case and were
thus, in terms of 105(c)(3), "in connection with the institution and
prosecution" of her discrimination complaint before him. Second, Price had
not consented to the settlement reached between Monterey and the UMWA
acting on her behalf. 11 FMSHRC 1100.

The judge did, however, substantially reduce the claimed court
costs and attorney fees on the ground that section 105(c)(3) limits
such awards to those costs and expenses "reasonably incurred." Id. To
determine the reasonableness of Price's costs and fees, the judge relied
on Hensley v. Eckert, 461 U.S. 424 (1983) and Copeland v. Marshall,
641 F.2d 880 (D.C. Cir. 1980). While noting that an appropriate attorney
fee may be determined by multiplying the number of hours reasonably

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expended on the litigation by a reasonable hourly rate, the judge indicated
that the party's partial or limited success may render the product of that
multiplication excessive. Thus, "the court necessarily has discretion in
making this equitable judgment." 11 FMSHRC 1101. The judge then noted
that while Price had alleged 31 protected activities and 14 acts

6/ As noted above, Price had recovered her pay for the four days' work
through settlement of her grievance under the labor contract.

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of discrimination (some of which he called "facially frivolous"), she
prevailed on only one act of discrimination.

The judge also considered the quality of Price's representation as
another factor in determining the appropriate fee. Here, he concluded
that the inordinate length of trial - 12 days for a case that should have
taken 2 days - was chargeable to Price's counsel. He also noted counsel's
lack of preparation, focus, and understanding of the law; her frequent and
extraordinary delays between questions; and her repeated failure to
promptly appear and be ready for trial as bases for significantly reducing
the "lodestar" fee. Taking the above matters into consideration, the judge
reduced the request for costs and fees to $4,800 which added together with
the costs claimed for the grievance proceeding, resulted in an award of
$4,987.36.

On review, Monterey's first exception to the judge's decision is
that he erroneously characterized the dispute over the integrated
metatarsal boot policy as a work refusal case. Monterey argues that
Price never refused to work; rather, Monterey refused her access to the
mine from August 19 to August 22, 1985, because she refused to comply with
a company safety rule, i.e., wearing integrated metatarsal boots on the
job. Monterey brief pp. 17-18. Viewed from that perspective, the company
asserts, it does not matter whether Price was unwilling or unable to comply
with the metatarsal boot policy; a mine operator can establish "proactive"
company safety rules or requirements and a miner's failure to comply, for
whatever reason, should not be deemed protected activity for purposes of
the Act.

In the alternative Monterey asserts that even if the case involves a
work refusal, Price's claim should be rejected for two reasons: (1) the
"hazard" complained of did not justify Price's work refusal, and (2) Price
lacked a good faith reasonable belief that a hazard existed. In that
regard Monterey first avers that the complained-of hazard was personal to
Price and was not under Monterey's control. Monterey further asserts that
work refusal rights are intended to be invoked only in the face of a hazard
which is "relatively severe and imminent". Monterey contends that the
hazard faced by Price on August 19, 1985, was ',discomfort from ill-fitting
boots that had not yet been broken in" and that the judge!s finding of a
hazard with respect to the boots is so remote and speculative that it
cannot justify a refusal to obey a direct work order. Id. p. 27.

With respect to Price's good faith reasonable belief in the existence
of a hazard warranting a work refusal, Monterey asserts that Price could
have taken the necessary steps that ultimately brought her into compliance
with the work boot policy before the threat of suspension with intent to

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discharge became a reality. In sum, Monterey takes the position that it
was Price's responsibility to secure a pair of boots that complied with the
company's integrated metatarsal policy and which fit to her satisfaction;
that the company made reasonable efforts to accommodate her by extending
her time to comply; and that its imposition of disciplinary measures was
justified in order to ensure her compliance.

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For her part, Price asserts that she did engage in a protected work
refusal based upon her good faith, reasonable belief that her replacement
boots were unsafe or unhealthful to wear on August 19, 20 and 21, 1985.
Price further argues that once a miner expresses to an operator a good
faith reasonable fear of a hazard, the operator has a corresponding
obligation to address the perceived danger or provide another method of
performing the same work that is safe. Price contends that she continued
to reasonably respond to the perceived hazard throughout her suspension
while Monterey refused to offer her a reasonable alternative method of
performing her job until the work boot dispute could be resolved, i.e.,
an extension of time for Price to comply until she could: secure a third
pair of boots from Hy-Test, have temporary metatarsal guards permanently
attached to her old boots, or secure a specially fitted shoe.

In sum, it is Price's contention that the integrated metatarsal boot
policy was unhealthful and unsafe as applied to her, since she was unable
to secure a pair of boots during July and August of 1985 that would fit
her properly and would not cause her discomfort to such an extent that she
could not work safely. Given that premise, Price asserts, it was incumbent
upon Monterey either to provide Price with a pair of boots that both
complied with its policy and did not pose a hazard to her or offer Price
an alternative, interim means of compliance until the larger dispute was
resolved.

The Commission has long held that a miner seeking to establish a prima
facie case of discrimination under section 105(c) of the Mine Act must
prove that he or she engaged in protected activity and that the adverse
action complained of was motivated in any part by that protected activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was not motivated by the
protected activity. Failing that, the operator may defend affirmatively
against the prima facie case by proving that it was also motivated by
unprotected activity and would have taken the adverse action in any event
for the unprotected activity alone. Pasula supra; Robinette, supra, (the
so-called Pasula-Robinette test). See also Donovan v. Stafford Constr.
Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC 719 F.2d 194,
195-96 (6th Cir. 1983).

Within this general construct, it is also well-established that in
certain circumstances a miner's refusal to work constitutes protected
activity. Pasula, supra, Robinette, supra; Miller v. FMSHRC, 687 F.2d

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1994 (7th Cir. 1982); Simpson v. FMSHRC 842 F.2d 453 (D.C. Cir. 1988).
The genesis for the recognition of certain work refusals as protected
activity is the Senate Report on the 1977 Act, which endorsed a miner's
right to refuse "to work in conditions which are believed to be unsafe or
unhealthful." S. Rep. No. 81, 95th Cong., 1st Sess. 35 (1977). In order
to be protected work refusals must be based upon the miner's "good faith,
reasonable belief in a hazardous condition." Robinette, 3 FMSHRC 812;
Gilbert v. FMSHRC supra 866 F.2d at 1439.

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The Commission has eschewed the setting of a bright line threshold of
severity in determining how severe a hazard must be in order to trigger a
miner's right to refuse work." Pratt v. River Hurricane Coal Co., 5 FMSHRC
1529, 1533 (September 1983). We have instead preferred to resolve that
issue on a case by case basis. Id., See also e.g., Pasula supra at 2793
and Robinette, supra at 809 fn. 11. Mindful that work refusals are not
explicitly addressed in the Mine Act but are derived from its legislative
history and our own decisional attempts to implement the overall safety and
health goals of the Act, we are initially skeptical as to whether Congress
would have envisioned that discomfort arising from a miner's wearing of
ill-fitting clothing would constitute a "sufficiently serious danger"
(Robinette, 3 FMSHRC at 816) to justify a work refusal.

Mining is not the most comfortable of professions. Many items of
basic miner's apparel or gear such as clothing, personal protection
equipment and other safety accessories (e.g., cap lamps and batteries,
self-rescuers, hard-toed shoes and hard hats) contribute to the general
discomfort of laboring in an underground mining environment. It is
problematic, however, to compare such discomfort, in either type or
degree, to the hazards heretofore at issue in work refusal cases brought
before the Commission.

With the foregoing as a preface, our analysis of the record in this
case leads us to conclude first that the judge was correct in treating the
events of August 19 through August 22, 1985 as a work refusal on Price's
part. While it is true, as Monterey argues, that Price actually presented
herself for work on those days, but was refused access to the mine for lack
of mandated footwear, Price's refusal/failure to comply with the company's
metatarsal boot policy constitutes a refusal to comply with a mandatory
work rule. We therefore reject Monterey's assertion that the judge erred
in treating this matter as a work refusal case and analyzing it in those
terms.

We find, however, that the work refusal was not a reasonable one
and therefore was not protected by section 105(c) of the Mine Act.
Consequently, Monterey did not violate the Act by denying Price access to
the mine and suspending her until such time as she came into compliance
with the metatarsal boot policy. We reach that conclusion on the ground
that the "hazard" posed to Price by the wearing of metatarsal boots was
not sufficient to warrant her continued refusal/failure to comply with
Monterey's work rule. We further find that whatever "hazard" Price
subjectively feared with respect to wearing metatarsal boots was one
within her power to overcome as she ultimately did once disciplinary
measures were imposed by Monterey. 7/

Page 22

7/ While substantial evidence supports the judge's finding that the first
pair of metatarsal boots did cause Price discomfort and that she was
unsuccessful in breaking in the second pair, his findings that the boots
would present a stumbling hazard or impede her safe evacuation of the mine
in the event of an emergency are highly conjectural and are based on
Price's own speculative assertions. We therefore reject these latter
findings as they relate to the work refusal at issue.

Page 23

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Part of the difficulty in resolving this case is attributable to the
complainant's (and t some extent the judge's) tendency to narrow. the
dispute before us to the two or three days immediately preceding Monterey's
denial of access to Price and her ensuing suspension. In fact, however,
disciplinary measures were not taken until a full four months after the
metatarsal boot policy was first announced and more than a month after the
new policy actually took effect. During that period Price's problems with
compliance were accommodated and extensions of time for her to comply were
granted in connection with her ongoing grievance concerning the policy.
While we do not minimize the discomfort owing to ill-fitting shoes or
boots, we are at a loss to determine what more Monterey could have done in
these circumstances where the level of comfort associated with the wearing
of new boots is a particularly subjective and personal matter.

Furthermore, the record clearly indicates that the method by which
Price ultimately came into compliance with the policy was available to
her prior to August 19, 1985. Price testified that she was aware that
another miner experiencing problems with Hy-Test boots, Dorothy Liske,
had on July 23, 1985 removed the metatarsals from her new boots and had
them permanently attached to her old boots by a cobbler, apparently
without incident and with Monterey's knowledge. Tr. 792-794. Price,
herself, had on August 17, 1985 sought to have the clip-on metatarsals
permanently attached to her old boots at one bootery but was told it could
not be done for "liability reasons." 11 FMSHRC 628. Nevertheless, she was
able to quickly locate another cobbler who would do the work several days
later as soon as she was placed under the threat of suspension with intent
to discharge.

In addition to retrofitting her old boots to achieve compliance, the
record indicates that from the outset of the policy Monterey informed the
miners that those with particular fitting problems could special order
boots from one of the designated vendors. Yet, for reasons unexplained in
the record Price had apparently never attempted to place a special order
with Hy-Test although by the time of the hearings in this case she had
ordered and sent back five pairs of boots to the vendor. Tr. 839. We
note in this regard the grievance settlement entered into between Price
and Monterey on July 26, 1985 placed the onus of securing footwear that met
the metatarsal boot policy squarely on Price.

Lastly, it should be borne in mind that the work rule at issue is one
specifically designed to enhance Price's safety. We cannot, accordingly,
conclude that her refusal to comply with a legitimate work rule adopted to
advance the Mine Act's goal of protecting miner safety falls within the
realm of conduct intended by Congress to be protected by section 105(c).

Page 24

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We therefore reverse the judge's finding that Monterey discriminated
against Price in violation of the Mine Act and dismiss the complaint. In
view of our disposition on the merits, we also vacate the judge's award of
costs and attorney fees. 8/

8/ Since we are vacating the award of costs and fees, the issue raised in
Price's petition with respect to the propriety of the judge's substantial
reduction of costs and fees is moot.

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Commissioner Doyle, concurring:

In its decision, the majority concludes that Monterey did not
discriminate against Price in violation of the Mine Act. It does so after
finding that Price was engaged in a work refusal but that the hazard posed
was not sufficient to warrant her refusal to comply with Monterey's work
rule. Slip op. at 11. I concur in the conclusion that Monterey did not
discriminate against Price but do so based on my opinion that Price's
conduct was a refusal to comply with a work rule, not a refusal to work.

Monterey Coal Company, after conducting studies of foot injuries at
its operations, determined that those injuries could be significantly
reduced if miners were required to wear integrated metatarsal-protective
work boots. After discussing its plans with the UMWA, Monterey instituted
a policy requiring all miners to wear such boots and agreed to pay for the
first pair for each miner, who purchased his boots from one of two
particular vendors. Price experienced a series of problems with the boots
she ordered. As indicated in the majority's decision, Monterey attempted
for more than a month to accommodate Price's problem with her boots.
Slip op. at 12. Those accommodations did not resolve the problem and Price
reported to work on August 19 wearing her old boots with temporary clip-on
guards. She was denied access to the mine on that day and again on August
20 and August 21, when she was suspended. 11 FMSHRC 618, 628-29.

A miner's refusal to perform work is protected under section 105(c)
of the Mine Act if it is based on a reasonable, good faith belief that the
work involves a hazard. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2789-2796 (October 1980), rev'd on other grounds, sub nom Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 807-12 (April 1981).
"The case law addressing work refusals contemplates some form of conduct or
communication manifesting an actual refusal to work." Perando v. Mettiki
Coal Corporation, 10 FMSHRC 491, 494 (April 1988), quoting Secretary on
behalf of Sedgmer v. Consolidation Coal Co., 8 FMSHRC 303, 307 (March
1986).

The judge found that Price's refusal to comply with Monterey's work
rule requiring integrated metatarsal boots "was a protected work refusal
based on a good faith, reasonable belief that it would have been hazardous
to comply with." 11 FMSHRC 630. He also found that she had communicated
the hazardous nature of wearing ill-fitting integrated metatarsal boots,
thus meeting the "communication" requirement. 11 FMSHRC 630.

While the record may support the judge's finding that Price
communicated what she saw as the hazardous nature of wearing ill-fitting

Page 26

boots, the record does not show, nor did the judge find, that Price at any
time communicated a refusal to work. And while the majority agrees that
Price presented herself for work each day but was refused access to the
mine, it concludes that Price's refusal to comply with a mandatory work
rule equates to a refusal to work. Slip op. at 11. I disagree.

In Perando 10 FMSHRC 491, the claimant, an underground miner,
developed industrial bronchitis and her physician recommended that she be
placed in a "position without exposure to coal dust." She agreed to be
transferred to a

Page 27

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laboratory position, but then failed to report to work for a substantial
period of time. Subsequently, she filed a section 105(c) claim against the
operator because he did not retain her higher, underground rate of pay.
The administrative law judge concluded that while Perando had never refused
to work underground, her medically substantiated inability to work
underground" was the "functional equivalent of a work refusal" and that
this "refusal" was protected activity. 8 FMSHRC 1220, 1222.

The Commission unanimously reversed the judge, finding no evidence of
a work refusal, and specifically disagreeing with the judge's determination
that, while Perando had never refused to work underground in the
traditional sense, her medical condition was the functional equivalent of a
work refusal. 10 FMSHRC 495. The Commission also found that none of the
doctors' reports stated directly or indirectly that Perando was refusing to
work. Even viewing the doctor's reports and Perando's actions together, we
found no work refusal. Id

I am unable to distinguish the present case from Perando. Price,
like Perando, presented a doctor's note, which diagnosed small blisters
and recommended that she not wear her new boots. In addition, Price
presented herself for work each day, something more than Perando did.
Price's.actions alone or taken in conjunction with her doctor's note did
not communicate an "actual refusal to work" as required by Sedgmer,
8 FMSHRC 303, or Perando. Accordingly, I would dismiss her complaint on
that basis.

The Mine Act gives miners and their representatives the right to
play a major role in enforcement of the Mine Act. In order to encourage
the exercise of those rights, section 105(c) was enacted in an effort to
preclude discrimination motivated by those activities. Also protected
is the right to refuse to work in unsafe or unhealthful conditions and
the right to refuse to comply with orders that are violative of the Mine
Act. 1/ Congress intended that miners not be inhibited in exercising any
rights afforded by the Act.

I see nothing in the legislative history, however, to indicate that
Congress intended to give miners the right to refuse work on the basis of
problems that are totally idiosyncratic to the miner and over which the
operator has no control. While a particular miner may hold a good faith,
reasonable belief that it is unsafe or unhealthy for him or her to wear
shoes that don't fit or a hard hat that provokes a headache, to work
underground with industrial bronchitis, to lift timbers with a bad back or
while pregnant, or to work at all because of

1/ The Senate Committee stated that section 105(c) "is intended to give

Page 28

miners, their representatives, and applicants, the right to refuse to work
in conditions they believe to be unsafe or unhealthful and to refuse to
comply if their employers order them to violate a safety and health
standard promulgated under the law" (emphasis added). S. Rep. No. 181,
9th Cong., 1st Sess. 36 (1977). The Committee cited with approval Phillips
v. IBMA, 500 F.2d 772 and Munsey v. Morton, 507 F.2d 1202. In Phillips the
conditions involved excessive coal dust and defective electrical wiring,
500 F.2d at 774-775, while Munsey involved a roof fall and loose roof.
507 F.2d at 1204-1205. See S. Rep. No. 181, 95th Cong., 1st Sess. 36
(1977).

Page 29

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lack of sleep, I do not believe that these are rights protected by the
Mine Act or that Congress intended the operator to be charged with
discrimination for failing to accommodate them, irrespective of the
seriousness of the hazard. On this broader basis, I would also dismiss
Price's complaint.
Joyce A. Doyle, Commissioner

Distribution

Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Michael J. Hoare, Esq.
134 North Broadway
St. Louis, Missouri 63102

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