Denu v. Amax Coal Company

Plain-English summary

Donald Denu, an electrician and union president, refused to unplug a 6,900-volt cable at a mine switch box because he believed the procedure was unsafe. An ALJ found that Amax violated the Mine Act by threatening discipline, but the Commission reversed that decision. The Commission found that Denu knew the only cable at the substation had been unplugged, that qualified electricians were monitoring it, and that the record did not support a reasonable belief that the cable remained energized. The Commission therefore rejected the discrimination claim.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: The ALJ's discrimination ruling was reversed.
• Key point: A work refusal is not protected when the miner's specific safety concern is not reasonable in light of verified safeguards and known facts.

Full text (FMSHRC public release)

CCASE:
DONALD DENU V. AMAX COAL
DDATE:
19900426
TTEXT:

              FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                             WASHINGTON, D.C.
                                April 26, 1990

DONALD F. DENU

v.               Docket No. LAKE 88-123-D

AMAX COAL COMPANY

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

         DECISION

BY THE COMMISSION:

In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1982) ("Mine
Act"), Complainant, Donald Denu, alleges that Amax Coal Company ("Amax")
violated section 105(c)(1) of the !@ne Act. 1/ Commission

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

     Discrimination or interference prohibited; complaint;
     investigation; determination; hearing

                (1) No person shall discharge or in any manner
     discriminate against or cause to be discharged or
     cause discrimination against or otherwise interfere
     with the exercise of the statutory rights of any
     miner ... because such miner ... has filed or made a
     complaint under or related to this [Act], including
     a complaint notifying the operator or the operator's
     agent ... of an alleged danger or safety or health
     violation in a coal or other mine ... or because of
     the exercise by such miner ... of any statutory right
     afforded by this [Act].

Page 2

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

discharged, interfered with, or otherwise discriminated
against by any person in violation of this subsection
may, within 60 days after such violation occurs, file
(Footnote continued)

Page 3

~603
Administrative Law Judge Gary Melick held that Amax violated section 105(c)
of the Mine Act by threatening Denu with disciplinary action and discharge
for refusing to unplug a 6,900-volt power cable. 11 FMSHRC 317 (March
1989)(ALJ). We granted Amax's Petition for discretionary review. For the
reasons set forth below, we reverse the judge's decision.

Fn. 1/ continued

 a complaint with the Secretary alleging such
 discrimination. Upon receipt of such complaint,
 the Secretary shall forward a copy of the
 complaint to the respondent and shall cause such
 investigation to be made as he deems appropriate.
 Such investigation shall commence within 15 days
 of the Secretary's receipt of the complaint....
 If upon such investigation, the Secretary determines
 that the provisions of this subsection have been
 violated, he shall immediately file a complaint with
 the Commission, with service upon the alleged violator
 and the miner ... alleging such discrimination or
 interference and propose an order granting appropriate
 relief. The Commission shall afford an opportunity
 for a hearing ... and thereafter shall issue an order,
 based upon findings of fact, affirming, modifying,
 or vacating the Secretary's proposed order, or
 directing other appropriate relief. Such order
 shall become final 30 days after its issuance....

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

Page 4

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....

Page 5

~604
At the time of the events giving rise to this proceeding, Denu was an
electrician and local union president at Amax's Ayrshire Mine in Indiana.
The Ayrshire Mine is a surface coal mine at which a dragline is used to
remove the overburden and electrically powered shovels are used to remove
coal. The 6,900-volt power cable ("power cable" or "cable") supplying
electricity to the shovels in the pit crosses the bench where the dragline
operates. The bench is cut about six to eight feet below the undisturbed
ground and the pit is 85 feet below the bench. When it is necessary for
the dragline to travel past the cable, the cable is unplugged at both ends,
moved around the dragline and then plugged back in. As an aid to our
discussion, a copy of Respondent's Exhibit 2, reduced in size, is attached
to this decision and incorporated herein.

When the dragline approaches the power cable as it travels along the

bench, the procedure for moving the cable around the dragline is commenced.
First, the shovel operators are directed via radio to shut off their
equipment. Next, the circuit breaker at the 6,900-volt substation (the
"substation") located on undisturbed ground is switched off and the plug to
the power cable is pulled from the substation. These steps de-energize the
cable. The plug at the other end of the power cable is removed from the
6,900-volt circuit breaker box (the "switch box") located on the bench near
the highwall above the pit. The switch box end of the cable is then moved
around the dragline and reconnected at the switch box. Next the other end
of the cable is plugged back in at the substation and the circuit breaker
at the substation is switched on, which energizes the cable. Finally the
shovels are switched on.

Usually, a pair of electricians travels by truck to the substation to

switch off the power to the cable and to disconnect the plug. Then they
travel by truck to the bench to unplug the other end of the power cable,
move it around the dragline and plug it back in at the switch box. Finally
they travel by truck to the substation to plug that end of the cable back
in and turn on the circuit breaker. Sometimes, however, if the shovels are
operating, and other electricians are available, a pair of electricians is
dispatched to the substation to perform the tasks required at that location
and a second pair of electricians is sent to the bench to perform the tasks
required there. If this procedure is used, the two pairs of electricians
communicate via radio to ensure that the switch is off and the cable is
unplugged at the substation before the other end of the cable is unplugged
at the switch box on the bench. Once the cable is moved and reattached at
the switch box, the electricians on the bench immediately radio the
electricians at the substation to re-energize the power cable.

Donald F. Denu is an experienced electrician with over nine years
experience in the mining industry. On February 27, 1988, Denu was working

Page 6

the 4:00 p.m. to midnight shift. At 6:00 p.m. he was preparing with
another electrician, Harrison Key, to disconnect and move the power cable
to allow the dragline to pass. According to Denu, he and Key drove to
the substation to de-energize the cable. Tr. 23. While there, Denu
observed that there was only one cable connected at the substation.
Tr. 33; Exh. C-1. While he and Key waited at the substation for a call
to disconnect the cable, Vernon Knight, the second shift electrical

Page 7

~605
supervisor and Denu's immediate supervisor, radioed Denu and told them to
proceed to the bench because he was bringing Don Kozar and Don Gehlhausen,
two electricians, to disconnect the cable at the substation. Denu asked to
remain at the substation but Knight told them to proceed to the bench.
Tr. 23-33, 219, 223-224; Exh. C-1.

After Denu and Key returned to the bench, Denu called Knight and

asked if he was going to be allowed to disconnect the power cable at the
substation. Tr. 26-33; Exh. C-1. Knight replied that the other pair of
electricians would perform the disconnect at the substation. A discussion
followed wherein Denu told Knight that the procedure was improper and
unsafe and that he would withdraw himself by refusing to unplug the head
of the cable at the switch box. Knight radioed Brent Weber, second shift
general supervisor, and told Weber to meet him at the bench. Knight drove
to the bench with Kozar and Gehlhauser, got out of the truck and instructed
Kozar and Gehlhauser to drive to the substation to standby for the
disconnect. Tr. 23-33, 219, 223-224; Exh. C-1.

A discussion between Denu, Knight and Weber took place at the bench.

According to Denu, Knight told him that he would be disciplined for
insubordination and Weber asked him if he knew what the consequences of
his actions were. Denu stated that he replied that there should be no
consequences to a person who withdraws himself from a situation that he
feels is unsafe or is in violation of Federal law. According to Weber,
he overheard Denu tell Knight over the radio that he would withdraw if he
was required to unplug the cable at the switch box for the reasons he had
expressed previously. Weber testified that when he arrived, he told Denu
that he did not appreciate him talking about such matters over the radio.
Weber testified that he did not mention disciplinary action until after
Denu refused to unplug the cable. Tr. 33-37, 224-230, Exh. C-1.

 Electrician Kozar called Denu via the radio and said that the cable

at the substation was unplugged and the cable head was on the ground.
Weber then ordered Denu to unplug the cable at the switch box. Denu
replied that he was going to withdraw and again said it was not a safe
practice. Weber testified that he replied that if Denu did not exercise
in good faith his right to withdraw he would be subject to discipline.
Weber went on to testify that Denu then got out of his truck and said that
Weber was not threatening him with discipline or anyone else with this
issue ever again. A short, heated discussion followed in which Weber told
Denu that he was bordering on insubordination because he had come right up
against Weber. Tr. 33-38, 103, 224-230; Exh. C-1.

Weber asked Key if he would unplug the cable at the switch box.
Key, who testified that he did not find the procedure to be unsafe,

Page 8

complied. Denu then put on hot gloves and assisted Key in moving the
disconnected cable around the dragline. Key then plugged the cable back
into the switch box and Denu turned the circuit breaker off on the switch
box. Kozar was called on the radio and told to plug the other end of the
cable back into the substation and switch the circuit breaker on. After
that was completed, Denu closed the switch on the switch box, which
reapplied power to the shovels in the pit. Tr. 39-41; Exh. C-1.

Page 9

~606
Kozar testified that he did not walk along the cable or otherwise
trace the cable from the switch box to the substation. He also testified
that neither the cable head nor its receptacle was labeled. After he
switched off the circuit breaker, unplugged-the cable and put the cable
head on the ground, he did not lock out or tag out the cable. Rather, he
remained at the substation until it was time to plug the cable back in and
switch on the circuit breaker. He stated that there was only one cable
plugged in at the substation, that this cable went in the direction of the
pit and that he did not see any other substations or switch boxes in the
area that could have supplied power to the cable plugged in at the switch
box on the bench. Although he could not state that he was 100% certain
that he unplugged the correct cable, he believed that he did. He stated
that he remembers seeing the power indicator light go out at the switch box
or lights go off at the shovels when he threw the switch at the substation.
He testified that at the time he felt sure that he had de-energized the
correct cable. Tr. 101-104.

Near the end of the shift, there was a brief meeting with the union
safety committeeman about Denu's work refusal. Weber, Knight, Denu and
Robert Lee, the safety committeeman, were present. Lee stated that the
labor contract requires that an MSHA inspector be notified if there is a
disagreement on withdrawal actions. Weber responded that a federal
electrical inspector was expected back the next working day (Monday,
February 29, 1988). He also told Denu to report to the office of Larry
Landes, human relations manager, before the start of his shift the next
working day to determine if disciplinary action would be taken. Lee and
Denu complained to Weber that the labor agreement was not being followed.
The discussion centered around the labor agreement and was heated at times.
Denu states that Weber's attitude was threatening. Tr. 42-44, 149-51,
229-31; Exh. C-1.

On Monday, February 29, 1988, the next work day after Denu's work

refusal, William Deuel, an MSHA electrical inspector, was scheduled to
terminate an electrical citation that had been abated. When the inspector
arrived, Larry Ashby, AMAX's electrical maintenance manager, told him what
had happened on February 27. Ashby asked if the company's radio disconnect
procedure was still permitted by MSHA. As discussed below, Inspector Deuel
had previously told him and Denu that radio communications may be used when
disconnecting cables. Inspector Deuel called MSHA's Arlington headquarters
in Ashby's presence and confirmed that radio communications are a proper
procedure when disconnecting power cables. Inspector Deuel went to a
safety committee meeting attended by management and union officials and
explained that radio disconnect procedures are permitted by MSHA.
Tr. 185-188. Jay Perry, the union safety committee chairman, told Denu
about MSHA's interpretation prior to his meeting with Landes that

Page 10

afternoon.

At the afternoon meeting, Landes told Denu that the company was not
going to take disciplinary action, that the matter was resolved and that
the company did not anticipate this sort of problem occurring in the
future. Lee testified that Landes said that if this problem happened
again, disciplinary action would be taken. No disciplinary action was ever
taken and nothing was put into Denu's personnel file as a result of this
incident.

Page 11

~607
About a year before Denu's work refusal, on March 2, 1987, Denu had
asked Inspector Deuel if it was improper for the company to ask him to
unplug a shovel cable when other electricians were assigned to unplug the
cable at the power source. Larry Ashby also participated in these
discussions. Denu testified that Inspector Deuel replied: "I agree
with you, Don, but I don't think the books [regulations] do." Tr. 93;
Exh. C-28. Ashby recalls Inspector Deuel stating that MSHA did not
consider the unplugging of cables to be electrical work and that the proper
use of radio communications was acceptable. Ashby also testified that
Inspector Deuel talked about an MSHA policy memo authorizing this procedure
and that the inspector subsequently gave him a copy. 2/ Ashby did not
discuss the matter further with Denu. Tr. 174-179; Exh R-8.

Denu brought this present action under section 105(c)(3) of the Mine

Act, 30 U.S.C. 815(c)(3), 3/ after the Secretary of Labor determined that
Amax did not violate section 105(c). Exh. R-3. At the hearing, Denu did
not state directly what the hazard was in allowing one set of electricians
to disconnect the plug at the substation and another set to move the cable.
He did state his belief that such a procedure would violate 30 C.F.R.
77.501. 4/ This regulation requires that disconnecting devices be locked
out and tagged out before electrical work is performed on electric
distribution circuits. Denu maintained that the cable is an electric
distribution circuit and that disconnecting the cable head from the bench
box is electrical work. Tr. 49-50. He testified that the radio disconnect
procedure used violates the standard because he is not personally allowed
to lock out and tag out the disconnecting device, the plug, at the
substation. 5/ Tr. 52. Denu also generally relied on the

2/ This MSHA memorandum, dated November 20, 1974, instructs MSHA inspectors
not to issue citations when they observe an electrician at one location
performing repair work on a high-voltage electrical system after another
qualified electrician de-energized the circuit at a different location so
long as the two electricians are in direct telephone or radio
communication. Exh. R-8.

3/ See n. 1, supra.

4/ 30 C.F.R. 77.501, provides in pertinent part:

  Electric distribution circuits and equipment; repair.

            No electrical work shall be performed on electric
  distribution circuits or equipment, except by a
  qualified person .... Disconnecting devices shall
  be locked out and suitably tagged by the persons who

Page 12

 perform such work....

5/ Amax and apparently MSHA consider 30 C.F.R. 77.501 inapplicable when
unplugging high voltage lines. The term "high voltage" is defined in
30 C.F.R. 77.2(s) as ''more than 1000 volts." The provisions of 30 C.F.R.
77.704-1 govern high-voltage lines and provides in part:
(Footnote continued)

Page 13

~608
fact that there have been a number of fatalities and injuries at other
mines caused by violations of section 77.501. Tr. 54, 59, 67. He stated
that since he did not believe that Kozar and Gehlhauser traced the cable
from the switch box back to the substation,and the cable and receptacle
were not marked at the substation, there was no guarantee that Kozar
deenergized the correct cable. Tr. 62. He stated that even if Kozar had
locked the cable out, there would have been a violation and he would have
refused to work because he would not have been "afforded the opportunity to
perform that disconnect and lock out procedure myself." Tr. 69-70.
Although Denu did not specifically articulate the hazard of unplugging a
cable that is energized, Kozar testified that there could be a big flash or
explosion and the person involved could receive burns or be electrocuted.
Tr. 115-116.

Following an evidentiary hearing, Administrative Law Judge Gary Melick
held that Amax violated section 105(c) of the Mine Act and awarded damages
of $1,000 as had been stipulated by the parties. 11 FMSHRC 563. 6/ The
judge found that Denu entertained a reasonable, good faith belief that a
hazardous condition existed at the time he was directed to disconnect the
cable at the bench box. He found that there is "no dispute that it would
have been extremely hazardous and likely to result in severe burns and/or
electrocution to have disconnected the cable at the switch box if the cable
had remained connected and energized at the substation or had been
reconnected and re-energized." 11 FMSHRC at 321. He found that the cable
could have been "intentionally or unintentionally" reconnected at the
substation. Id. He then stated that while under the circumstances of this
case, the chances may not have been great that the cable had not been
"deenergized, disconnected and not

Fn. 5/ continued

  Work on high-voltage lines.

              (a) No high-voltage line shall be regarded as
  deenergized for the purpose of performing work on
  it, until it has been determined by a qualified person
  ... that such high voltage line has been deenergized
  and grounded. Such qualified person shall by visual
  observation (1) determine that the disconnecting
  devices on the high-voltage circuit are in open
  position, and (2) insure that each ungrounded conductor
  of the high-voltage circuit upon which work is to be
  done is properly connected to the system grounding
  medium....

Page 14

The MSHA memorandum referenced in note 3 above, is based on this safety
standard.

6/ Because Denu was not suspended or discharged by Amax the stipulated
damages cover the costs associated with Denu's prosecution of his
discrimination complaint. Of the $1,000 in stipulated damages,
approximately $700 is wages lost to Denu because he missed six days
of work while preparing and presenting his case.

Page 15

~609
reconnected, the danger of serious injury or electrocution was a near
certainty if the cable at the substation had been inadvertently reconnected
and reenergized." Id. The judge considered "these extreme consequences"
to be a key component in his determination that Denu entertained a
reasonable, good faith belief in a hazard. Finally, the judge concluded
that threats of disciplinary action directed to a miner exercising a
protected right constitute unlawful interference under section 105(c)(1),
whether or not those threats are later carried out.

Under established Commission precedent, a complaining miner
establishes a prima facie case of prohibited discrimination by proving
that he engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub. nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was not motivated in any part by
protected activity. Robinette, 3 FMSHRC at 818 n. 20. If an operator
cannot rebut the prima facie case, it nevertheless may defend affirmatively
by proving that (1) it was also motivated by the miner's unprotected
activity, and (2) it would have taken the adverse action in any event for
the unprotected activity alone. See also Donovan v. Stafford Construction
Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194,
195-96 (6th Cir. 1983)(specifically approving the Commission's
Pasula-Robinette test).

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

work, if the miner has a good faith, reasonable belief in a hazardous
condition. Pasula, 663 F.2d at 1216 n. 6, 1219; Miller v. Consolidation
Coal Co., 687 F.2d 194, 195 (7th Cir. 1982). The complaining miner has the
burden of proving both the good faith and the reasonableness of his belief
that a hazard existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf
of Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief "simply
means honest belief that a hazard exists." Robinette at 810. This
requirement's purpose is to "remove from the Act's protection work refusals
involving frauds or other forms of deception." Id. The Commission has
rejected a requirement that miners who refuse to work must objectively
prove that hazards existed. The miner must simply show that his perception
was a reasonable one under the circumstances. Haro v. Magma Copper Co.,
4 FMSHRC 1935 (November 1982); Robinette, supra. In determining whether
the miner's belief was reasonable under the circumstances, the judge is
to look to the miner's account of the conditions precipitating the work
refusal, and to the operator's response in order to evaluate the relevant

Page 16

testimony as to "detail, inherent logic and overall credibility."
Robinette, 3 FMSHRC at 812. The perception of a hazard must be viewed
from the miner's perspective at the time of the work refusal. Secretary
on behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529 (September
1983); Haro, supra.

The pivotal issue in this case is whether Denu was engaged in a
protected work refusal. On the facts presented, the issue is not

Page 17

~610
whether Denu generally believed that it was hazardous to unplug an
energized 6,900-volt power cable, but whether he entertained a reasonable,
good faith belief at the time of his work refusal that he faced a hazard if
he unplugged the power cable at the switch box as he had been instructed to
do.

The Commission is bound by the substantial evidence test when

reviewing an administrative law judge's decision. 30 U.S.C.
$823(d)(2)(A)(ii)(I). Substantial evidence means "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Nevertheless,
"substantiality of evidence must take into account whatever in the record
fairly detracts from its weight." Universal Camera v. NLRB, 340 U.S. 474,
488 (1951). For the reasons discussed below, we conclude that substantial
evidence does not support the judge's conclusion that "Denu did in fact
entertain a reasonable, good faith belief that a hazardous condition
existed at the time he was directed to disconnect the power cable at the
6,900 volt switch box." 11 FMSHRC 320-21.

Although Denu did not testify as to the hazards presented by

unplugging an energized power cable, Kozar testified that a "big flash"
can result and the miner could receive burns on his arms or could be
electrocuted. Tr. 114-16. Since no evidence of record contradicts this
testimony, the judge's conclusion that unplugging an energized 6,900-volt
power cable presents a significant safety hazard is supported by
substantial evidence.

It is clear, however, that at the time of Knight's order to unplug
the power cable, Denu knew that Kozar was at the very same substation at
which Denu had been when Knight ordered Denu to proceed to the bench. 7/
Denu also knew from his own personal observation that only one power cable
was present at this substation. In fact, Denu had just proceeded to the
substation to unplug the very same cable. Thus, when Kozar called Denu on
the radio and told him that the plug was disconnected and on the ground,
Denu could not have entertained a reasonable belief that Kozar had
unplugged a different cable. Finally, Denu also knew that Kozar was a
qualified electrician and that he and another electrician were going to
remain at the substation for the short duration of the cable move and that
they were to plug the cable back in at the substation only after Denu had
notified them via radio that the cable move had been completed. Whatever
uncertainties Denu may have had regarding whether all steps had been taken
to de-energize the cable could have been resolved through use of the
two-way radio system.

The record also makes clear that the issue of the safety of using

Page 18

two pairs of electricians in radio communication with each other when

7/ Indeed, if Denu entertained any doubts as to Kozar's location, he could
have simply asked Kozar where he was when the two were in communication on
the radio.

Page 19

~611
disconnecting power cables had arisen before. Denu had raised safety
concerns with respect to this issue about a year before and was told by
MSHA electrical Inspector Deuel that it was allowed under MSHA's safety
standards. He also knew from previous discussions that AMAX believed it
to be a safe and legal procedure.

Given the above facts as set forth in the record, we believe that

Denu failed to prove that his belief that@ at the time of the events
at issue, if he had pulled the plug at the switch box as instructed by
Knight he would have been exposed to an electrical hazard was reasonable.
Instead, the record reveals that Denu refused to work because of
generalized fears that if a mistake is made when working with 6,900-volt
power lines, a serious accident can happen. 8/ The record does not show
that he had a reasonable belief that such a mistake would be made or that
an accident would happen if he unplugged this particular cable at the time
of his work refusal.

Denu testified that he would not have unplugged the cable at the

switch box unless AMAX allowed him to personally disconnect the power
cable at the substation and put his own personal lock on the cable head.
Tr. 74. He stated that even if Kozar had locked out the cable head at
the substation, he would have refused to unplug the cable at the switch
box. Thus, Denu was reserving to himself exclusively the right to unplug
the cable at the substation. Nothing in the Mine Act or MSHA's safety
standards grants a miner the right to insist that only he can de-energize a
power cable if he is required to unplug the other end of the cable. Kozar
was a qualified electrician in direct communication with Denu and nothing
in the record suggests that he was regarded by Denu as being unreliable or
incapable of safely performing the disconnect at the substation. Thus, in
the absence of a reasonable fear that the cable was energized, Denu had no
statutory right to insist that he be granted the exclusive right to
personally perform all aspects of the assigned task.

Because we are bound to affirm an administrative law judge's findings

of fact if supported by substantial evidence, we have carefully reviewed
the judge's decision and have determined that several additional critical
findings lack a substantial basis in the record. One significant

8/ In order to prove that his work refusal was reasonable and made in good
faith, Denu introduced a number of exhibits to illustrate the hazards
presented when an electrician works on an electrical circuit that has not
been locked out. Exhs. C-4 through C-8. None of these exhibits concern
the hazards present in unplugging or moving high voltage cables. The judge
held that Denu was concerned about the hazards presented because he was
"aware through MSHA 'Fatalgrams' of the potentially fatal consequences in

Page 20

similar if not identical situations." 11 FMSHRC 321. Denu attempted to
introduce these "Fatalgrams" (MSHA notices of fatal mine accidents) at the
hearing, but withdrew them when the judge and counsel for Amax questioned
their relevance. Tr. 57-59. In addition, none of the other exhibits that
were introduced shed light on the hazards presented in this case.

Page 21

~612
finding lacking record support is the judge's determination that the
serious hazard presented by unplugging an energized 6900-volt power cable
was "not significantly diminished" by the fact that Denu knew that the
cable plug at the substation was out and lying on the ground. 11 FMSHRC
at 322. The judge recognized that the record evidence establishes that
Denu knew that (1) only one cable exited the substation, (2) this cable
was likely the same cable that was plugged in at the switch box, (3) two
qualified electricians were at the substation to disconnect this cable,
and (4) one of the electricians told Denu via radio that the cable head
was out and lying on the ground. Id.

In spite of this evidence, the judge found that "the serious hazards,

previously discussed, are not significantly diminished by these
considerations." Id. We find no basis whatsoever in the record to support
this finding. Denu knew that during the short period of time required to
move the cable around the dragline, two qualified electricians would be
present at the substation to make certain that the only cable connected to
the substation was unplugged and remained unplugged at the substation.
There is no evidence in the record to suggest that these electricians
were unaware of the procedure to be followed, that they were otherwise
unqualified or that Denu had a reasonable fear that they would plug the
cable back in at the substation prematurely. Thus, the record evidence
demonstrates that the hazards of electric shock were not only
"significantly diminished" but were in fact eliminated when Kozar told
Denu that the cable head was disconnected and lying on the ground.

The judge also concluded that Denu had reason to believe that if the

circuit breaker malfunctioned at the substation the cable could remain
energized even though the switch was off and the indicator light on the
switch box was off. Assuming this to be true, it is totally irrelevant
because the undisputed testimony is that Kozar not only turned off the
circuit breaker at the substation but also pulled the plug. The testimony
concerning the hazards of a switch malfunction assume that the cable
remains plugged in at the substation. The testimony makes clear that once
the cable is unplugged at the substation it is impossible for the cable to
remain energized. Therefore, a malfunction of the circuit breaker would
create a potential hazard to the electrician unplugging the cable at the
substation rather than to the electrician unplugging the cable at the
switch box. Thus, substantial evidence does not support the judge's
conclusion.

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~613
We stress that our conclusion is based on Denu's knowledge of certain
facts at the time of his work refusal, particularly his knowledge that only
one cable exited the substation and that Kozar, a qualified electrician,
was dispatched to the substation to unplug the same cable that Denu
prepared to unplug previously. Substantial evidence does not support the
judge's determination that Denu reasonably believed that he faced a hazard
if he followed the radio disconnect procedure in this particular instance.

Accordingly, the judge's decision is reversed.

              Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner


              L. Clair Nelson, Commissioner

Distribution

Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Donald F. Denu
Rt. 1, Box 333
Rockport, Indiana 47635

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

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~614
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