Old Ben Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Billy B. Taylor worked at Old Ben Coal Company's underground Mine No. 24. The ALJ found that Taylor raised a good-faith safety concern about transportation through a blocked travelway and was suspended after doing so. The judge found that the suspension violated the Mine Act's discrimination provision, ordered back pay and benefits, required removal of related disciplinary records, and assessed a $500 civil penalty. The penalty was lower than the Secretary's proposed $1,250 penalty.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(1); 30 U.S.C. § 815(c)(2)
• Outcome: The discrimination violation was established, relief was ordered, and the civil penalty was set at $500.
• Key point: An operator must meaningfully respond to a miner's reasonable, good-faith safety concern and cannot discipline the miner for raising it.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OLD BEN COAL
DDATE:
19920923
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 92-131-D
ON BEHALF OF
BILLY B. TAYLOR Mine No. 24
COMPLAINANT

      v.

OLD BEN COAL COMPANY,
RESPONDENT

                               DECISION

Appearances: Miquel J. Carmona, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois,
for Petitioner;
Gregory S. Keltner, Esq., Old Ben Coal Company,
Fairview Heights, Illinois, for Respondent.

Before: Judge Barbour

                        STATEMENT OF THE CASE

 This case involves a discrimination complaint filed by the

Secretary of Labor ("Secretary") on behalf of Billy B. Taylor
under Section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 815(c)(2) ("Act" or "Mine Act"). The
complaint alleges that Old Ben Coal Co. ("Old Ben") violated
Section 105(c)(1) of the Act when it suspended Taylor from
employment for four days in retaliation for Taylor's protected
safety complaints.(FOOTNOTE 1) The Secretary seeks by way of
restitution a

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finding that Old Ben's suspension of Taylor was the result of
unlawful discrimination, back pay plus interest, benefits lost
due to the suspension, and the expunging of all disciplinary
letters located in Taylor's employment records that relate to the
suspension. Finally, the Secretary proposes a civil penalty of
$1,250 for the alleged violation of Section 105(c)(1). Old Ben
admits that it suspended Taylor but denies the disciplinary
action was motivated by Taylor's protected activity.

 A hearing on the merits of the Secretary's complaint was

held in Evansville, Indiana. Post-hearing briefs were filed by
counsel for both parties.

                          STIPULATIONS

 At the commencement of the hearing counsel for Old Ben read

the following stipulations into the record.

      1. The Administrative Law Judge has jurisdiction over
  the proceeding.

      2. Mine 24 is an underground bituminous coal mine.

      3. During the calendar year preceding the alleged
   violation of Section 105(c) of the Mine Safety and
   Health Act, Mine Number 24 had a production of
   1,250,636 tons of coal and the controlling entity had a
   production of 14,918,109 tons of coal.

      4. Payment of a penalty as provided by the Mine Safety
   and Health Act, if a violation were found in this case,
   would not affect the operator's abilities to remain in
   business.

      5. During the twenty-four month period preceding the
   alleged violation, Respondent had the following history
   of violations: (a) number of violations assessed, one
   hundred ninety-five; (b) number of inspection days, two
   hundred and three; (c) violations per inspection day
   point nine-six . . . ; number of previous Section
   105(c) violations, zero.

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6. On June 20, 1991, Respondent issued a Notice of
Suspension suspending Billy B. Taylor from his employment
without pay on June 18 through June 21, 1991.

         7. On June 21, 1991, Billy B. Taylor filed a
      discrimination complaint with the Mine Safety and
      Health Administration subdistrict in Benton, Illinois.

Tr. 10-11.

                          COMPLAINANT'S CASE

    Billy B. Taylor and Terry Koonce were called to
    testify.(FOOTNOTE 2)

                           BILLY B. TAYLOR

 Taylor testified that he began working for Old Ben in 1975

and since has continued in Old Ben's employ.(FOOTNOTE 3) At all times
pertinent to this case, Taylor stated that he worked at Mine No.
24 as a longwall prop man. Tr. 56-57. On June 18, 1991, Taylor
was working on the 4:00 p.m. to 12:00 a.m. shift (the "afternoon
shift"). At the start of the shift, Taylor was sent to an area of
the mine where the work of setting up a longwall was in progress.
Taylor's immediate responsibility was to assist in assembling a
longwall stage loader. However, when it was discovered that all
of the tools necessary for the job were not on the unit, Taylor
was instructed by his immediate supervisor to drive in the manbus
to another unit and there to get the needed tools. Sheer operator
Dennis Parkhill was told to accompany Taylor. The unit where the
men were instructed to go was one where a longwall was being
disassembled and moved (a "recovery unit"). Tr. 58.

 Upon reaching the mouth of the recovery unit, Taylor and

Parkhill encountered what Taylor described as a "massive
blockage" of the entry. Tr. 59. According to Taylor, "[T]here was
. . . trucks, scoops and diesel scoops and everything. We
couldn't go any further. We were stuck there." Id. At this point,
Parkhill got out of the manbus and walked the main travelway.
When he returned to the manbus he told Taylor that the entry was
blocked, that up ahead men were trying to transfer

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a longwall shield from a dolly onto a scoop and that he and
Taylor could not proceed further. Tr. 60.

 Taylor stated that he and Parkhill sat in the manbus

approximately 20 minutes, at the end of which time they were
approached by Ronald Smart, the section boss of the recovery
unit. Taylor asked Parkhill if he had observed any vehicles that
could be used for transportation outby in case of an emergency,
and Parkhill indicated he had not. Taylor then asked Smart, "Hey
Ron, did [sic] you have any kind of transportation outby this
mess[?]" Tr. 61. Taylor testified that Smart did not answer and
that he again asked Smart the same question. Taylor stated that
once again Smart did not respond but rather walked around the
corner of a rib where Taylor could not see him. According to
Taylor, he got out of the manbus and walked to where he could see
Smart, and he asked Smart, this time in a louder voice, "Have you
got any transportation outby?" Id. Smart turned and came toward
Taylor, and Taylor said again, "[H]ave you any transportation
outby?" Id. According to Taylor, Smart pulled out a notebook and
said, "I'm telling you to work, are you refusing to work, if you
are I'm going to stop your time and send you out of the mine."
Tr. 62. Taylor replied that he was not refusing to work, that
everything was blocked and he could not do anything. Taylor also
stated that he may have again asked about transportation outby,
and that Smart replied in a louder tone for Taylor to get in the
manbus and to leave the area. Tr. 62.(FOOTNOTE 4)

 Shortly thereafter the travelway was opened and Taylor

testified that he stepped into the manbus and told Smart, "This
is not over . . . We'll settle it on top if I have to get the
Union, Federal, and State involved." Tr. 63, See also Tr.
76.(FOOTNOTE 5) Smart then came toward Taylor and told him to get off
the manbus, that Smart was stopping Taylor's time and was sending
Taylor out of the mine. Id.

 Taylor testified that he then asked Parkhill to take him

back to the unit from whence they had come so that Taylor could
retrieve his dinner bucket. Smart told Taylor to stay put, and
Smart sent for the acting mine manager, Joe Ronchetto.

 When Ronchetto arrived, Taylor stated that Smart explained

that he had stopped Taylor's time and that Taylor had threatened

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him. Taylor claimed he responded, "I said, what [?]," and Smart
repeated that Taylor had threatened him. Tr. 65. Ronchetto then
took Taylor out the mine.(FOOTNOTE 6)

 Taylor maintained that during the June 18 incident he never

refused a direct work order from Smart, that his work at that
time involved being in the manbus and that he was right where he
should have been. Tr. 66. Further, Taylor maintained that during
the incident he did not direct abusive language at Smart,
although, at some point during the exchange, he may have placed
his hands in a prayer-like position and said, "Please, please
send me out of the mine." He explained that if he had said it, to
Smart it was "in a situation in the mine where . . . Smart was
very belligerent toward me and trying to make me feel that I
didn't have the right to ask any of the questions, and it was
just my way of saying . . . you don't have to badger me." Tr. 67.

 Taylor claimed that when he inquired of Smart whether there

was transportation outby he did so out of concern for the safety
of himself and his fellow miners. As a former union safety
committeeman he was aware that past practice at the mine was to
have such transportation available when heavy equipment -- such
as longwall shields -- was being moved. The transportation was on
the scene because of the possibility that the transporting
equipment could break down. Tr. 68-69. He explained that outby
transportation was needed because if someone was injured and the
travelway was obstructed by broken down equipment, the injured
person could be placed on the outby transportation and be quickly
removed from the mine. Tr. 84-86.

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In addition, Taylor stated that prior to and at the beginning of
the afternoon shift on June 18, the underground telephone system
had been working only intermittently. When he and Parkhill left
their section, the phones were not working. When they arrived in
the vicinity of the blockage, they saw a man repairing a
telephone, and he told them he thought the phones now had been
fixed. Tr. 66. Taylor stated that the unreliability of the
telephone system on June 18 added to his safety concerns and made
it even more important to have transportation outby, since if
someone were hurt, a telephone call to the top for assistance
could not be assured. Tr. 84, 101-102.

 Once Taylor was on the surface, he stated that he was told

by the union safety committeeman at the mine to go home and that
the committeeman would see if he could find out "what's going
on." Tr. 78. When Taylor did not hear from the safety
committeeman, Taylor returned to the mine on June 19 and the
committeeman told Taylor that Taylor had to talk to Mine
Superintendent Koonce before Taylor could return to work. Taylor
stated that this lead to a brief discussion between himself and
Koonce in which Koonce stated that there were serious charges
against Taylor (Taylor thought Koonce said "You threatened your
boss." Tr. 79.) and that Koonce would have to further investigate
the charges. Tr. 79.

 The following day, according to Taylor, he met with Koonce

and others at the mine. Taylor stated that he did not remember
everything that was said because the meeting went "on and on" but
as best he could recall, Koonce said that Taylor had been charged
with abusive language, threats to Smart and his family and
refusing a direct work order. Tr. 81-82. Koonce also told Taylor
that the charges were "founded." Tr. 81. At the close of the
meeting, Koonce handed Taylor a letter advising Taylor he was
suspended from June 18 to June 21.(FOOTNOTE 7)

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DENNIS PARKHILL

 Parkhill essentially corroborated Taylor's testimony. He

stated that subsequent to being assigned to assemble a
stageloader for a longwall section, he and Taylor were asked to
take the manbus and to go to the longwall recovery unit to get
some missing tools. Tr. 111. Parkhill testified that he and
Taylor proceed to the mouth of the recovery unit where Parkhill
found miners in the process of taking a shield off the shield
dolly and loading it onto a scoop and where the route they had to
travel was blocked. Therefore, he and Taylor were forced to wait
until the roadway cleared. Tr. 113-114.

 Parkhill stated that after he found that the roadway was

blocked, Taylor several times asked Smart if transportation was
available on the outby side, and that Smart ignored the
questions. Parkhill also stated that Smart directed Taylor to get
into the manbus and to leave, which Taylor and Parkhill could not
do because the roadway was blocked, and that ultimately Smart
told Taylor that his time was being stopped and that he was being
sent out of the mine. Tr. 114.

 After the roadway opened, Smart directed Parkhill to get the

tools, which Parkhill did. Tr. 123.

                        TERRY N. KOONCE

 Mine Superintendent Koonce stated that he was not present at

the June 18 incident but that he investigated it by discussing
the matter with Taylor and Smart. Koonce said that he did not
interview Parkhill because Parkhill stayed on the manbus and did
not come into the area where the conversation between Taylor and
Smart took place. Tr. 24, 28. According to Koonce, the
conversation between Taylor and Smart concerned whether or not
the telephones were operational and Taylor's concern that the
travelway may have been blocked. Koonce believed that Smart told
Taylor that the travelway was not blocked and to go back to the
manbus and to his work assignment. Koonce stated that this
conversation was repeated several times. Tr. 18.

 Koonce maintained that by continuing questioning about the

roadway after having been told it was not blocked, Taylor was
insubordinate. Tr. 19. Koonce also maintained that Taylor told
Smart he would go back to the manbus "whenever he got good and
G-D ready." Tr. 21. Koonce further stated that during the
conversation Taylor held his hands in a praying fashion in front
of Smart's face and said, "[P]lease take me our of the mine,
please take me our of mine." Tr. 19. Koonce termed this
"threatening or abusive" language and stated that the use of such
language was a violation of Old Ben's work rules. Id.

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Finally, according to Koonce, after Taylor was told by Smart that
his time had been stopped, Taylor made statements to Smart in
which he threatened Smart's family and said he would damage
Smart's personal vehicle. Koonce agreed however that Taylor
denied making these statements. Tr. 26.

 In Koonce's view, the fact that Taylor got "in the section

foreman's face with his hands in a praying motion during [the]
heated conversation [and said], ["]Please take me out of the
mine, please take me out of the mine[']," was an action
sufficiently abusive to warrant Taylor's suspension. Tr. 31.
Koonce further explained that Taylor was disciplined for the way
in which he spoke to Smart and for his motions, "I just don't
think that it's right that an employee or an employer has to get
up in someone's face, nose to nose, and act in that kind of
manner. It's just not professional." Tr. 50. He further stated
that he believed that Taylor had no reason to start the
conversation because Taylor was not even in his own work area at
the time. Id. Taylor was not discharged because "he hadn't had
that much [prior] discipline." Tr. 36.

 Koonce stated that, in general, if there is one way in and

out of an area and the way is blocked, then transportation must
be provided on the outby side, regardless of whether or not
telephones are working. Koonce further acknowledged that at Mine
No. 24, once or twice a month, a rockfall would block a travelway
and that two or three times a week a piece of equipment would
break down and block the travelway. Tr. 51. However, Koonce
maintained that in this particular instance, outby transportation
was not required because the equipment in the travelway was
operational and energized, and it would have taken but "a matter
of minutes" to move it out of the way. Tr. 36, 39-40.

 With regard to Taylor's safety concerns, Koonce agreed that

Taylor was questioning whether the type of transportation
required by Section (0)(4) of the Bituminous Wage Agreement of
1988 was available. Tr. 43.(FOOTNOTE 8)

 Finally, regarding the incident of June 17, Koonce stated

that Taylor's scoop could have inadvertently pinned Smart and
that no separate internal investigation was taken by Old Ben in
response to the incident. Tr. 49.

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RESPONDENT'S CASE

 Joe Ronchetto, David Stritzel, Mark Cavinder, and Ronald

Smart were called to testify.

                         JOE RONCHETTO

 Ronchetto stated that on June 18, 1991, he was the Acting

Mine Manager in charge of production at Mine No. 24. He also
stated that at approximately 9:00 p.m., while underground, he
received a call from Smart requesting that he, Ronchetto, come to
the mouth of the recovery area. When he reached the area, Smart
told him that Taylor and Smart had gotten into a dispute and that
Smart had stopped Taylor's time because Taylor had refused two or
three direct orders to return to work. Ronchetto added that
Taylor denied he had refused to return to work. Tr. 138.
Ronchetto also stated that he asked Taylor if any equipment had
broken down, that Taylor said he did not know, and that Ronchetto
responded, "If we don't have anything broken down we're not
required to have a ride outby." Tr. 138-139, see also Tr. 140.
Ronchetto added that if shields were being moved, outby
transportation was not required. Tr. 140.

 Ronchetto described Taylor as a good worker who usually

followed orders "very well." Tr. 141.

                         DAVID STRITZEL

 Stritzel, the Director of Health and Safety for Ziegler Coal

Company, stated that he is involved in the majority of direct
contacts between MSHA, the state inspection agency and the
company. He testified that he was not contacted by anyone from
MSHA or the state regarding the issue of whether transportation
is required outby while shields are being loaded. Tr. 143.

                         MARK CAVINDER

 Cavinder, the manager of three Old Ben mines, including Mine

No. 24, stated that he has the "final say" on whether discipline
will be implemented at the mines. In that capacity he reviewed
Taylor's case and agreed that a four day suspension was
appropriate. Cavinder stated that Taylor was disciplined because
of the manner in which he approached Smart, specifically for
failing to comply with a direct work order to return to work and
for intimidating-type remarks. Tr. 149-150. He further stated
that although a supervisor typically is required to respond to a
question concerning safety, in this instance he would not
second-guess Smart, who, he believed, was trying to defuse a
hostile situation. Tr. 157. He added that to comply with the work
order all Taylor would have had to do was to return to the
manbus. Tr. 160.

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Further, he stated that in the usual situation, transportation is
not required outby when longwall shields are being moved, and
that the momentary 5 to 10 minute interruptions in the use of a
travelway when moving shields are not considered blockages
requiring outby transportation. Tr. 151, 160.

                          RONALD SMART

 Smart first testified about the incident on June 17. Smart

stated that on June 17 he had concerns about how shields were
being unloaded, and he discussed his concerns with Taylor's
foreman. Smart believed that the process was taking too long.
According to Smart, Taylor, who was there and who was running a
scoop, became belligerent and cursed the company and Smart. Smart
remembers that Taylor insulted him three times before Smart
approached Taylor's scoop and asked Taylor what he had said.
Smart said to Taylor, "What did you say?" and Taylor responded,
"You heard me Goddamnit." Tr. 168. At that point, Taylor started
the scoop and pinned Smart's legs. Smart stated that as a result
he became irate and had words with Smart's foreman over the
foreman's lack of control of his workers. Smart also stated that
he was reprimanded later for his conduct toward the foreman. Tr.
168.

 Smart also described the loading of the shields on June 18.

Smart stated that two large diesel scoops were transporting the
shields from the old panel, down the travelway, to the point
where the shields were transferred to dollies. (The dollies were
being pulled by two smaller scoops.) The distance from the old
panel to the transfer point was approximately 1,000 to 1,500
feet. Also, there was a battery powered scoop in the vicinity
that would load the shields onto the dollies. If the dollies were
not at the transfer point when the diesel scoops arrived, the
scoops would drop the shields off in the roadway and leave. Tr.

169. The shields are steel and are approximately 5 to 6 feet wide
     and 20 feet long. Tr. 171.

     At the time of the incident with Taylor, the crew was
     loading shields in the travelway. One of the smaller scoops was
     loaded and ready to go, but the scoop operator was eating dinner.
     One of the diesel power powered scoops arrived, and the crew
     commenced to load the second dolly rather than put the shield on
     the ground. Smart told the small scoop operator to pull the dolly
     out of the travelway. Smart stated that at this time the
     travelway had been blocked "maybe fifteen minutes," Tr. 172, but
     that if the travelway had to have been cleared this could have
     been done in five minutes. Tr. 182.(FOOTNOTE 9) Smart then observed
     Taylor

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coming toward him down the travelway. Tr. 172, 180. According to
Smart, when he first saw Taylor, Taylor was out of the manbus.
Smart claimed he did not know why Taylor and Parkhill had stopped
the bus. Tr. 206.

 Taylor was no closer to 25 feet from Smart when he asked

Smart in a very loud voice, "Do we have a bus or truck outby
where we're loading these shields?" Tr. 180. Smart explained,
"[W]ith what happened the night before and the travelway no
longer blocked I said, ["]Now Bill, go on, I don't want to argue
with you, go on back to your bus, got to work.["] Tr. 181-182.
According to Smart, Taylor responded, "I want to know if there's
a goddamn truck or a bus outby when you're loading shields?", and
Smart replied, "Bill, I'm telling you, go back to work. The
travelway is no longer blocked, I want you to go back to the bus
and go on about your job." Tr. 182, See also Tr. 184.(FOOTNOTE 10)
Taylor responded that he would go when he got "a goddamned
answer," and Smart stated that he again told Taylor to go back to
the bus and to work. Id. It was at this point, according to
Smart, that Taylor clasped his hands about a foot from Smart's
face and stated "Please stop my time, I'll have your goddamn
job." Tr. 183. After this statement, Smart stopped Taylor's time.

 Smart testified that Taylor returned to the manbus and asked

Parkhill to take him back to the setup section to get his dinner
bucket. Smart told Taylor to remain in the area, and he told
Parkhill to leave and get the needed parts. Taylor responded that
since he was no longer on Old Ben's time, Smart could not tell
him what to do. Smart then called Ronchetto. Tr. 185.

 After Parkhill left, and before Ronchetto arrived, a scoop

passed through the travelway, Smart stated he said to Taylor, "Is
that scoop broken down, isn't it going in the travelway, would
you consider [the travelway] blocked[?]". . . " Couldn't [the
scoop] get out of the way if something come up on it[?]" Tr.
188-189. Taylor replied, "Yeah, I guess," and Smart asked, "Why
do you think I have to have a scoop or transportation outby when
I'm loading shields[?]" Smart testified that Taylor responded
that "It could mean his goddamn life or something." Tr. 189.

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Smart stated that at this point he decided he could not reason
with Taylor, and he walked away from Taylor. Taylor followed him
and Smart began taking notes about what was said, as Taylor
orally confronted Smart saying, "Go ahead and write, you dumb
son-of-a-bitch, I can say what I want, I'm no longer on your time
and I ought to just knock your ass off right now." Tr. 189. Smart
testified that because he wished to "defuse the situation," he
tried to walk away, but Taylor followed and said, "Smart, you're
in this mine like the rest of us, and things can happen down here
to you . . . or. . . at home to your family." Tr. 190.

 Smart testified that at this point Parkhill returned, and

Taylor told Smart he was going to ride with Parkhill and retrieve
his dinner bucket. Taylor got into the manbus. Smart replied that
Taylor was to stay. Taylor again said, "You can't tell me what to
do, goddamnit, I'm no longer on your time." Tr. 191. Smart told
Taylor that he would "ask about that when Joe [Ronchetto] gets
here." Id. When Ronchetto arrived, Smart explained to him that
Taylor had threatened Smart and his family, had cursed Smart and
that Smart had stopped Taylor's time and wanted Taylor removed
from the mine. Tr. 192.

                      APPLICABLE CASE LAW

 In order to establish a prima facie case of discrimination

under Section 105(c) of the Act, a complaining miner bears the
burden of production and proof 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., 709 F.2d 86 (D.C. Cir. 1982). 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 the protected activity. If an operator cannot
rebut the prima facie case in this manner, it may nevertheless
affirmatively defend by proving that it was also motivated by the
miners' unprotected activity 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. 1982); Donovan
v. Stafford Construction Company, 732 F.2d 954 (D.C.

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Cir. 1984) (specifically approving the Commission's
Pasula-Robinette test). See also NLRB v. Transportation
Management Corporation, 462 U.S. 393, 397-413 (1983), (where the
Court approved the NLRB's virtually identical analysis for
discrimination cases arising under the National Labor Relations
Act).

 Under this legal framework Taylor's asserted protected

activity must be analyzed in the context of the ongoing
circumstances in the mine as they appeared to Taylor at the time,
provided always that his perception of those circumstances was
reasonable.

                       PROTECTED ACTIVITY

 Taylor's safety complaint allegedly arose out of his belief

that the travelway was blocked and thus that outby transportation
was required to facilitate the removal from the mine of any miner
who might have been injured. I fully credit Taylor's testimony
that he and Parkhill stopped the manbus at the mouth of the
recovery unit because of a reasonable belief that the entry was
blocked. Taylor's testimony is corroborated by Parkhill's
uncontested statement that Parkhill got out of the manbus,
surveyed the situation, and returned to report to Taylor that the
entry was blocked. Although Smart testified that he first saw
Taylor approaching him, his statement is not necessarily
inconsistent with Taylor and Parkhill's testimony that Parkhill
left the manbus first to reconnoiter the entry. Smart himself
testified that prior to seeing Taylor, the travelway had been
blocked, possibly for 15 minutes, and although Smart also
testified that he did not know why Parkhill and Taylor had
stopped the manbus, Taylor's testimony that he believed he and
Parkhill could not proceed further is credible in light of the
work that was taking place in the entry.

 Further, not knowing the length of time the blockage had

existed and would continue to exist, I conclude that Taylor's
concern about the presence of outby transportation was
reasonable. As a general rule, a miner's safety inquiry, like a
miner's work refusal, must adequately apprise the operator of the
nature of the feared hazard and must be reasonable under the
circumstances of the case. It must also be made in good faith.
See e.g., Secretary on behalf of Pratt v. River Hurricane Coal
Company, Inc., 5 FMSHRC 1529, 1533-34 (September, 1983).

 Taylor's inquiry regarding outby transportation was direct

and understandable, as witnessed by the fact that at no time did
Smart maintain that he was confused about what Taylor was asking
or uncertain as to what Taylor meant. Further, and as noted
above, the fact that Taylor reasonably believed the entry was
blocked leads me to credit Taylor's testimony that he was
concerned that if a miner was injured, transportation would not

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be available to quickly remove an injured miner from the mine.
Taylor's history as a former mine safety committeeman and his
unrefuted testimony regarding the unreliability of the mine's
underground telephones on June 18, in my view, makes it logical
that Taylor would have been concerned about assuring as swift an
exit from the mine as possible for an injured miner. Thus, I
conclude that Taylor, in good faith, inquired of Smart regarding
the presence of outby transportation, and that when he did so, he
engaged in protected activity.(FOOTNOTE 11)

                 ADVERSE ACTION AND MOTIVATION

 Taylor was suspended for four days and was so advised

formally by letter on June 20, 1991. Koonce and Smart maintained
that Taylor was suspended both for refusing a direct order to
return to work and for abusing and threatening Smart. Tr. 23, 25,
28, 30, 32, 35, 49-50, 182-183, 192. These reasons were also
given in the formal Notice of Suspension. Exh. C-1. The testimony
of Taylor and Smart is in agreement that this adverse action,
although confirmed on June 20, was instituted on June 18, when
Smart stopped Taylor's time.

 At issue is whether the suspension was motivated in any part

by Taylor's protected behavior? To answer the question it is
necessary to view in total the events surrounding the incident of
June 18. On that date neither Taylor nor Smart met as strangers.
They had come to know one another on June 17. I credit Koonce's
opinion that Taylor was concerned about the Zeigler buy-out of
Old Ben and about Smart's knowledge of mining operations at Mine
No. 24. Tr. 19-20. I also believe it true that Taylor's low
regard for the Ziegler management personnel lead directly to his
comments on June 17 regarding Smart's direction of the longwall
set up and to the subsequent oral exchange between the two of
them. Whether Taylor purposefully pinned Smart between the rib
and the scoop, or whether it was inadvertent -- Smart admitted he
had put himself in a bad position -- it seems certain that Taylor
and Smart regarded one another with some degree of hostility when
they next met on June 18.

 Thus, it may well be that on June 18, when Taylor inquired

about outby transportation, in addition to being concerned about
his safety and that of his fellow miners, he was also trying to
aggravate Smart. However, and this is the essential point, even

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Page 16

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if Taylor had an ulterior motive, he also had a good faith,
reasonable belief that the situation in which he found himself
presented a possible danger to his and to others' safety. Thus,
his questions regarding outby transportation were, under the
circumstances in which he found himself, perfectly proper, and it
was Smart's duty to meaningfully respond to the specific concerns
expressed by Taylor.

 Communication of safety hazards and responses thereto are a

means by which the Mine Act's purposes are attained, and once a
reasonable, good faith concern is expressed by a miner, an
operator, usually acting through its on-the-scene management
personnel, has an obligation to address the perceived danger.
Boswell v. National Cement Co., 14 FMSHRC 253, 258 (February
1992); Secretary on behalf of Pratt v. River Hurricane Coal
Company, Inc., 5 FMSHRC 1529, 1534 (September 1983); Secretary of
Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 230 (February
1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 766
F.2d 469 (11th Cir. 1985). Moreover, the operator must address
the miner's concern in such a way that the miner's fears
reasonably should be quelled. Gilbert v. FMSHRC, 866 F.2d 1433,
1441 (D.C. Cir. 1989). If the operator does not address the
perceived danger and disciplines the miner, "it does so at its
own legal risk." Metric Constructors, 6 FMSHRC at 230.

 Smart did not meet his obligation to meaningfully respond to

Taylor's inquiry. Both Taylor and Parkhill creditably testified
that Smart did not respond to Taylor's questions regarding outby
transportation. Even under Smart's version of the exchange --
that he ordered Taylor back to work and told Taylor that the
travelway was no longer blocked -- Smart's response was patently
inadequate. A statement that, "The travelway is no longer
blocked." (Tr. 182) or that, "The road's clear now." (Tr. 183),
cannot be equated to the kind of communicative response
envisioned under the Act. Moreover, Smart's statements appear to
have been made after the travelway was opened and after the
factual basis for Taylor's concern had ceased to exist.

 While it is conceivable that there are circumstances that

could mitigate an operator's duty to meaningfully respond; for
example, instances in which adverse mine conditions preclude an
immediate safety-related discussion or in which an operator may
reasonably fear his response will trigger a overtly adverse
reaction on the part of his questioner, the obligation to respond
to reasonable, good faith safety concerns is -- at least in my
view -- so important to the goals and purposes of the Mine Act
that I can envision recognizing its mitigation only in the most
extraordinary of circumstances -- circumstances that do not exist
here. I conclude that Taylor has established that he was
suspended because he engaged in protected activity.

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Page 17

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AFFIRMATIVE DEFENSE

 Old Ben argues that even if Taylor's inquiry about the

availability of outby transportation constituted protected
activity he was not disciplined for asking questions but for
refusing an order to return to work, insubordination and using
threatening language and that Old Ben established an affirmative
defense by proving that it was motivated entirely by this
unprotected conduct. I do not agree.

 As I have found, Smart's response to Taylor's inquiries was

insufficient under the Act. Moreover, it colored all that
followed, for subsequent to Smart's failure to meaningfully
respond, the situation deteriorated. Koonce maintained that
Taylor told Smart he would go to the manbus "whenever he felt
good and G-D ready". Tr. 21, See also Tr. 28. Smart's version is
that Taylor said he would go back to the manbus when he got "a
goddamn answer." Tr. 183. Taylor asserted that he did not refuse
a direct order to return to work because his work assignment
required him to proceed inby on the manbus, and the entry being
blocked, he could not do so.

 Smart's testimony in this regard is more detailed than

Taylor's and is, in my opinion, more believable.(FOOTNOTE 12)
Thus, I find that Taylor did, in fact, refuse to return to the
manbus until he got "a Goddamn answer" and even after being told that
the entry had been cleared. I also credit Smart's testimony that
Taylor held his hands up in Smart's face in a prayer-like fashion
and asked, in effect, that he be suspended from work. I further
find that after Parkhill left, the conversation became more
heated, with Taylor telling Smart the lack of transportation
outby could "mean his [meaning Taylor's] goddamn life" and that
Smart "had f__ked with the wrong person," and Taylor ought to
"knock [Smart's] ass off." Tr. 189.(FOOTNOTE 13) I do not, however,
credit Smart's testimony that Taylor told him, "You're in this
mine like the rest of us, and things can happen down here to you
. . . or it can happen at home to your family." Tr. 190. Taylor
denied making such threats and Smart's version was not
corroborated by Ronchetto, the first person from management with
whom Smart spoke after the "threats." In recounting his
conversation with Smart, Ronchetto could recall being told only
that Smart had stopped

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Page 18

~1672
Taylor's time because the two had gotten into a dispute and
Taylor had refused Smart's orders to return to work. Tr. 138. It
is reasonable to assume that had the acting mine manager been
told that Taylor had in this manner threatened his foreman and
the foreman's family, Ronchetto would have remembered it and have
recounted it. Further, while it is true that Koonce stated Smart
told him Taylor threatened Smart and his family, the "abusive and
threatening language" (Exh. C-1) for which Taylor was disciplined
was, according to Koonce, in the nature of Taylor holding his
hands up to Smart in a praying fashion and pleaded with Smart to
stop his time and send him out of the mine. Koonce also stated
that the objectionable nature of the language lay not so much in
what Smart said but in "the way in which it was said and the
motions." Tr. 50.(FOOTNOTE 14)

 The following colloquy between counsel for the Secretary and

Koonce reveals Koonce's thoughts:

 Q. So what was the reason for the suspension?

 A. The reason for the suspension: Refusing a direct
 work order and using threatening and abusive language.

 Q. How do you know there was abusive language?

 A. Mr. Taylor admitted to doing exactly what he was
 accused of.

 Q. What is it exactly Mr. Taylor told you that he said
 to Mr. Smart?

 A. During the conversation he admitted the conversation
 was a heated conversation. He admitted to getting into
 Mr. Smart's face, with his hands in a praying motion,
 saying, ["]Please send me out, please send me out.["]

 Q. Is this the only thing he said to Mr. Smart?

 A. There were some other things that, that was said
 that Billy didn't admit to. Mr. Smart advised me that
 Mr. Taylor had threatened his kids, to do damage to his
 personal vehicle, and -- but Mr. Taylor didn't admit to
 that.

Tr. 25-26, See also Tr. 19.

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Page 19

~1673
Thus, while I credit Smart's testimony that Taylor refused an
order to return to the manbus and spoke to Smart in a heated and
at times profane manner, I view Taylor's refusal and his comments
as a direct result of Smart's failure to address in a meaningful
way the danger Taylor perceived. As such, they could not form a
valid basis for Taylor's suspension, and I conclude that in
disciplining Taylor, Old Ben acted "at its own legal risk."
Metric Constructors, 6 FMSHRC at 230.

 Nor does Taylor's oral response to Smart's failure to

meaningfully respond strip protection from Taylors' safety
inquiry. Taylor's "praying" to be suspended and his telling Smart
that he (Taylor) should "knock [Smart's] ass off," were entwined
with and the result of his protected activity. Just as in the
collective bargaining context, where the courts have been
reluctant to find language to be so opprobrious as to carry the
speaker "beyond the pale" of statutory protection, I do not
believe that the interest of the Act in promoting safety-related
dialogue between miner and management is served by the external
imposition of a rigid standard of proper and civilized behavior.
See Lee Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724,
729-730 (5th Cir. 1970). Threatening harm to Smart and his family
might well be another matter, but, as noted, I do not credit
Smart's testimony in this regard.

                           CONCLUSION

 ACCORDINGLY, I conclude and find that Taylor engaged in

activity protected under the Act when he inquired of Smart
whether there was transportation outby and that Old Ben suspended
Taylor for this activity. I further conclude and find that
Taylor's subsequent refusal to return to the manbus and his
"abusive and threatening language" toward Smart does not provide
Old Ben with a valid basis for adverse action nor remove from
Taylor the protection of the Act. Therefore, I hold that in
suspending Taylor, Old Ben violated Section 105(c)(1) of the Act.

                             ORDER

 1. Old Ben is ORDERED to pay Taylor within thirty (30) days

of the date of this Decision all back wages and benefits from
June 18, 1991 through June 21, 1991, with interest thereon in
accordance with the Commission's Decision in Local Union 2274,
UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (October 1988)
calculated proximate to the time payment is actually made.

 2. Old Ben is ORDERED to expunge from Taylor's personnel

records all reference to the incident of June 18, 1991, and
Taylor's subsequent suspension.

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~1674
3. Old Ben is ORDERED to pay to the Secretary within thirty (30)
days of the date of this Decision a civil penalty of $500.(FOOTNOTE 15)

                           David F. Barbour
                           Administrative Law Judge

FOOTNOTES START HERE-

 1. Section 105(c)(1) of the Act provides as follows:
      "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, representative of miners or
applicant for employment in any coal or other mine subject to
this [Act] because such miner, representative of miners or
applicant for employment, has filed or made a complaint under or
related to the [Act], including a complaint notifying the
operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety
or health violation in a coal or other mine or because such
miner, representative of miners or applicant for employment is
the subject of medical evaluations and potential transfer under a
standard published pursuant to Section [101] of this [Act] or
because such miner, representative of miners or applicant for
employment has instituted or caused to be instituted any
proceedings under or related to this [Act] or has testified or is
about to testify in any such proceeding, or because of the
exercise of such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this [Act]."

30 U.S.C. 815(c)(1).

 2. Koonce, the superintendent of Mine No. 24 at the time of

the alleged discrimination, was subpoenaed to testify by the
Complainant.

 3. Old Ben became a subsidiary of Zeigler Holding Co. on

July 20, 1990, when Zeigler purchased all of Old Ben's
properties. Tr. 142. The acquisition resulted in some changes in
management personnel at Old Ben's mines, including the transfer
to Mine No. 24 of section foreman Ronald Smart, the foreman
involved in this case. Smart previously had worked for Ziegler.

 4. Taylor believed that he could have asked Smart about

outby transportation up to five times. Tr. 97. In any event,
however many times he asked, he maintained that Smart never
answered his questions.

 5. On cross examination Taylor admitted that subsequent to

his conversation with Smart, he never spoke with the union safety
committeeman about the situation, nor to a state mine inspector
and that he contacted MSHA only after he had been handed a notice
of suspension. Tr. 86-87.

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Page 21

 6. On cross-examination, Taylor stated categorically that

during the incident of June 18, he never threatened Smart. Tr.

99. However, during his direct testimony, Taylor indicated that
    he and Smart had a prior run-in. According to Taylor, on June 17,
    in his regular working section and while in the process of
    setting up a longwall, he had observed Smart "screaming and
    hollering" at the section foreman about the way the work was
    proceeding. Taylor claimed that he said to his helper, "These
    people [meaning the former Zeigler bosses] never saw a longwall .
    . . until . . . a few weeks ago, and now all of a sudden they are
    experts on how to set a longwall up." Tr.73. Smart, who overheard
    Taylor, responded that he did not have to take Taylor's "abusive
    language" and that he would "write up" Taylor for the incident.
    Tr. 73-74. Taylor claimed that Smart continued to holler at the
    section boss. Taylor, who was sitting in a scoop, with his back
    to the where Smart was standing, energized the scoop. Taylor
    claimed he did not know that Smart had moved between the rib and
    the scoop. The scoop lurched toward the rib and pinned Smart.
    Smart, who was not hurt, told Taylor's section foreman that
    Taylor had tried to run over him. Tr.74. Taylor denied he had
    tried to hit Smart or that he knew Smart was in a position where
    he could have been endangered by the scoop. Taylor stated that he
    was not reprimanded for the incident but that he found out later
    Smart had been reprimanded for the manner in which he had
    addressed the foreman. Id. This was confirmed by Smart. Tr. 168.

    7. The letter states in part:
       An investigation reveals that on June 18, 1991, while
       working the 4:00 P.M. to 12 midnight shift you were insubordinate
       and refused a direct order to return to your assigned work after
       having been instructed to do so by your supervisor on at least 2
       occasions.
       The investigation also reveals that in violation of
       Company Rules and Regulations you used abusive and threatening
       language toward a supervisor and his family.
       Old Ben can not and will not condone such action,
       therefore, you are hereby suspended for a period of four (4)
       working days without pay (June 18, 19, 20, 21, 1991).
       Exh. C-1

    8. Section (0)(4) states in part:
       "The Employer shall provide quick and efficient means
       of transporting injured or sick Employees from the mine to the
       surface."
       Joint Exh. 1 at 34-35.

    9. Smart also stated that at the mouth of the longwall
       section there was a crosscut that, in conjunction with an
       adjacent entry, served as a "runaround" in the area where the
       shields were being loaded, and that the runaround allowed the
       loading area to be by-passed if the main travelway was blocked.
       See Tr. 177-178.

    10. Smart stated that he did not respond to Taylor's inquire
        about outby transportation because Taylor would not accept his
        answer that there was no transportation outby. Taylor, in Smart's
        opinion, was putting on a show for Parkhill and was looking for

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Page 22

trouble. Tr. 200.

 11. Counsel for the Secretary argues that Taylor engaged in

additional protected activity when he told Smart that the
discussion regarding outby transportation was not over and that
it would be settled "on top" even if he had to involve the union,
the state inspectors and MSHA. Because the record lacks even a
hint that Taylor's suspension was motivated in any part by his
statement, its protected nature need not be assayed.

 12. For example, Taylor, who had no trouble recalling the

events immediately surrounding his safety complaint, could not
recall clasping his hands in a prayer-like manner and as much as
daring Smart to send him out of the mine. At most, Taylor would
acknowledge the "possibility" that he might have done it. Tr. 67,
See also Tr. 96.

 13. Although the language is rough, I do not find it

unusual. To understate the matter considerably, mining is not an
ice cream social, and blunt speech, laced with Anglo Saxon
epithets, frequently is the norm.

 14. Had Old Ben's management personnel really believed

Taylor credibly threatened harm to Smart and to his family, it is
hard for me to believe Taylor's discipline would have been
restricted to a limited suspension.

 15. The Secretary proposed a civil penalty of $1250 for the

violation of Section 105(c) of the Act. I find the proposal
excessive. I note particularly that Old Ben had no prior
violations of Section 105(c) in the 24 months prior to this
violation. I further conclude that Smart, although negligent in
failing to respond to Taylor's inquiry, did not deliberately act
in derogation of Taylor's Section 105(c) rights.