Mathies Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Joseph G. Delisio, Jr., a mine examiner and union safety representative at Mathies Coal Company's mine, was warned that disciplinary action could follow if he traveled from his assigned portal to accompany an MSHA inspector. Judge George A. Koutras found that the company's inconsistent private-vehicle policy interfered with Delisio's protected right to serve as the designated miners' walkaround representative. The complaint was affirmed, the warning was ordered expunged, and Mathies was required to permit portal-to-portal travel or provide transportation. The judge rejected the proposed $1,200 penalty and assessed a $100 civil penalty.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(1), § 815(c)(2), and § 815(c)(3); 30 U.S.C. § 813(f); 29 C.F.R. § 2700.1
• Outcome: The discrimination complaint was affirmed, corrective relief was ordered, and the civil penalty was reduced from the proposed $1,200 to $100.
• Key point: An operator may not apply an inconsistent vehicle policy to prevent the designated miners' representative from accompanying an MSHA inspector.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MATHIES COAL
DDATE:
19861121
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. PENN 86-83-D
ON BEHALF OF MSHA Case No. CD 85-9
JOSEPH G. DELISIO, JR.,
COMPLAINANT Mathies Mine

      v.

MATHIES COAL COMPANY,
RESPONDENT

                           DECISION

Appearances: Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsy-
lvania, for the Complainant;
Carl H. Hellerstedt, Jr., Esq., Volk, Robertson,
Frankovitch, Anetakis & Hellerstedt, Pittsburgh,
Pennsylvania, for the Respondent.

Before: Judge Koutras

                 Statement of the Proceeding

 This proceeding concerns a discrimination complaint filed by

the Secretary of Labor (MSHA), on behalf of the complainant
pursuant to section 105(c)(1) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 815(c)(1). The complainant
alleges that the respondent discriminated against him by issuing
him a verbal warning threatening possible disciplinary action
because of his desire to serve as the designated miner's
walkaround representative during Federal inspections of the mine.

 A hearing was held in this matter in Pittsburgh,

Pennsylvania, and the parties have filed posthearing briefs in
support of their respective positions. All of the arguments made
by the parties in their briefs, as well as during

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the hearing, have been considered by me in the course of this
decision.

                            Issues

 The critical issue in this case is whether or not the

respondent has interferred with the complainant's right to
accompany Federal inspectors during mine inspections as the duly
recognized union walkaround representative of the miners.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.

        Applicable Statutory and Regulatory Provisions

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

301 et seq

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

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

 3. Section 103(f) of the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. 813(f).

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

Complainant's Testimony and Evidence

 Joseph Delisio, Jr., testified that he is employed by the

respondent as a mine examiner, and has worked for the company for
12 years. He has served as the chairman of the union mine safety
committee since May, 1983, and is a member of the miner's
Political Action Committee. He is registered with the respondent
as the miner's safety representative, and has notified mine
management of this fact. He indicated that in the event of a
Federal mine inspection, if a member of the mine safety
committee, of which there are three, were available, he would be
the first choice to accompany the inspector as the walkaround
representative (Tr. 19Ä21).

 Mr. Delisio stated that he works 1 week on the daylight

shift and 1 week on the afternoon shift. He confirmed that since
most MSHA mine inspections (95 percent), take place during the
day shift, he would generally be performing his duties as a miner
examiner if he were working the afternoon shift. While working
the day shift, he is the only available member of the safety
committee. He confirmed that he works at the Thomas Portal, and
that when inspections occur at that portal during his shift, he
acts as the miner representative during these inspections. He
confirmed that mine management

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has never threatened him with any disciplinary action, or
attempted to discipline him for acting as the miner walkaround
representative at the Thomas Portal. He also confirmed that the
Thomas Portal does not produce coal, and that coal production
takes place at the Linden Portal which is approximately 5 miles
away (Tr. 23).

 With regard to the exercise of his walkaround rights at the

Linden Portal, Mr. Delisio stated that in June, 1985, he attended
a communication meeting with Mine Superintendent Edmund Baker and
raised the question concerning his ability to act as the
walkaround representative at that portal. Mr. Delisio stated that
Mr. Baker "recommended" that he not serve as the walkaround, and
"that some type of action may be taken against me" (Tr. 24). Mr.
Delisio stated that he again raised the question on July 30,
1985, while on his way to work at the Thomas Portal. He stopped
by the Linden Portal, which is on the way to the Thomas Portal,
and asked Mine Superintendent George Karazsia if he would allow
him to accompany the Federal inspector as the union walkaround
representative. With him at the time was Ron Stipanovich,
president of the local union, and Federal Inspector Phil Freese.
Mr. Karazsia informed him that "he had no problem with me
travelling with the inspector, but if I did management would take
disciplinary action against me, and I could consider that a
verbal warning" (Tr. 24).

 Mr. Delisio stated that on the evening of July 29, Mr. Baker

telephoned his home, spoke with his wife, and informed her that
it was his understanding that he (Delisio) would be at the Linden
Portal in the morning to accompany an inspector. Mr. Baker
advised his wife that he (Baker) recommended that Mr. Delisio not
do that, and if he did, "some type of action would be taken
against me" (Tr. 25).

 Mr. Delisio stated that he did not accompany the inspector

as a walkaround at the Linden Portal on July 30, and he confirmed
that no miner representative accompanied the inspector that day
(Tr. 26). He also confirmed that on that same day he travelled to
the MSHA office in Washington, Pennsylvania, and filed his
discrimination complaint (exhibit GÄ1, Tr. 26).

 Mr. Delisio stated that in February, 1986, he was at the

Linden Portal in the company of Federal Inspector Francis Wehr.
He again asked Mr. Karazsia if he could accompany the inspector
on his regular mine inspection as the union walkaround
representative, and that Mr. Karazsia informed him

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that since his discrimination case was on appeal, he recommended
that he wait until the case was heard and decided. Mr. Delisio
stated that he then inquired of Mr. Karazsia if there would be a
problem in Mr. Delisio reporting to the Thomas Portal and then
driving his own car back to the Linden Portal to accompany the
inspector, and that Mr. Karazsia responded that since the case
was on appeal "they would have a problem if I did that." Mr.
Delisio stated that he received the same response when he asked
Mr. Karazsia if he could report to the Thomas Portal and then
travel underground to meet and accompany the inspector at the
Linden Portal (Tr. 27).

 Mr. Delisio confirmed that his normal work reporting time at

the Thomas Portal during the day shift was 8:00 a.m., and that he
offered to report at 7:30 a.m., in order to have time to travel
back to the Linden Portal before the inspector would start his
inspection at 8:00 a.m. (Tr. 28).

 Mr. Delisio stated that there have been occasions when he

did not report to his assigned portal without informing mine
management of his whereabouts. He cited instances when he had
"safety business" at the union international district office or
"sudden" safety meetings where he could not contact mine
management. On some of these days the local union president would
turn in an excuse for him, and on other days when no excuses were
turned in, mine management never questioned him or inquired as to
his whereabouts. He also stated that management has never
disciplined him for not reporting to work or for not informing
them of his whereabouts. Mine management never threatened him
with disciplinary action or gave him any verbal warnings for not
reporting to work on those days (Tr. 29).

 Mr. Delisio stated that when he reports for work at the

Thomas Portal, the foreman can visually observe his presence, and
he does not report in to anyone. He simply changes clothes, gets
his equipment, and starts work underground. He does not use any
check-in or checkout system, and no time clock is used. Even if
he reported to the Linden Portal and called the Thomas Portal,
mine management would know of his whereabouts, and during an
inspection, a representative of management always accompanys the
inspector (Tr. 30).

 Mr. Delisio cited several examples of miners using their own

vehicles to travel from portal to portal. Motormen have driven
from one portal to another when their is a shortage of qualified
motormen, miners have driven between portals for

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retraining, and safety committeemen have driven between portals
when there are problems, accidents, or fires, and this is all on
company time (Tr. 32). Forbidding him to drive his own vehicles
also precludes his attending mine inspection close-out
conferences held at the Linden Portal (Tr 33). In his opinion,
the actions taken by mine management in his case have interferred
with his ability to act as the miners' walkaround representative
(Tr. 34).

 On cross-examination, Mr. Delisio confirmed that he is at

the Thomas Portal by his own personal choice and that he bid on a
job at that location (Tr. 34). If the same job were to become
available at the Linden Portal, he would bid on it (Tr. 35). He
confirmed that he is the only safety committeeman on the day
shift, and that other miners accompany Federal inspectors at the
Linden Portal because he is not allowed to accompany them during
his shift. The miners that accompany inspectors are designated to
do so by the safety committee, but Mr. Delisio believes he is
better qualified than those miners (Tr. 36Ä37). He conceded that
the safety committee is satisfied with the qualifications of the
miners who accompany the inspectors (Tr. 37). He also conceded
that there is another representative who would function in his
absence during any close-out conferences (Tr 37), but believes
that it is more efficient for the union if he were present if at
all possible (Tr. 38).

 Mr. Delisio stated that while no other miner walkaround

accompanied the MSHA inspector on July 30, 1985, respondent's
safety manager Malcom Dunbar did mention that another miner other
than Mr. Delisio could accompany the inspector. However, Mr.
Delisio asserted that Mr. Dunbar's suggestion was made after the
inspector had started his inspection (Tr. 39).

 With regard to his absence from the mine on union safety

matters, without first notifying mine management, Mr. Delisio
could not state how frequently this occurred, and indicated only
"several times throughout the year." He indicated that the
respondent has an absenteeism policy, but that he has not been
subjected to this policy because of his absences (Tr. 41).

 With regard to the use of personal vehicles by safety

committeemen to travel from portal to portal, Mr. Delisio stated
that this occurred when there was a fire, accident, or injury,
and that it did not occur too often. The only occasion he would
have to travel in a government vehicle with an inspector was when
the inspection started at the Thomas Portal and the inspector
conducted a surface inspection of the

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dumps or the impoundment. This did not happen frequently because
the inspectors usually show up at the Linden Portal (Tr. 42).

 Mr. Delisio confirmed that the threatened disciplinary

action against him amounted to warnings and that he has suffered
no loss of pay (Tr. 43). He confirmed that what he was seeking in
this case is the following (Tr. 43):

Q. I will--I just have, really, one more question, and
that is am I incorrect in the impression that what you
would want to do is to accompany a Federal Inspector
anytime that Federal Inspector is inspecting the mine,
as long as that inspection is occurring on your
regularly scheduled shift?

A. That is correct.

And, at (Tr. 72Ä75):

JUDGE KOUTRAS: Okay. Now, what's--tell me just in your
own words, how you feel that you should be able to do
your job there as mine examiner, and also fulfill your
obligations as a union walk around? How would you--if
you had your druthers, how would you prefer to do it?

THE WITNESS: I would--you mean how would I prefer to
travel with the Inspector and do my job?

JUDGE KOUTRAS: No, first of all, you're a paid employee
by Mathies as a mine examiner, that's your livelihood.

THE WITNESS: Yes, yes.

JUDGE KOUTRAS: And then your also the Chairman of the
Safety Committee designated as the walk around.

THE WITNESS: Yes.

JUDGE KOUTRAS: There seems to be some--

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THE WITNESS: Among--among other duties, I'm paid as--for my
job as Chairman of the Safety Committee also.

JUDGE KOUTRAS: You're paid by the union for that?

THE WITNESS: Yes. So that's--that's my job also.

JUDGE KOUTRAS: But, you're a paid employee of Mathies,
is that correct?

THE WITNESS: Yes.

JUDGE KOUTRAS: You're not suggesting--you're not under
the control of Mathies as an employee?

THE WITNESS: Yes.

JUDGE KOUTRAS: And, they have the right to tell you,
you know, you bid on the job at Thomas, they have the
right to say to you that your working hours are such
and such to such and such, and these are your duties,
and this is where you'll report to work. Is that
correct?

THE WITNESS: As far as walk around, I don't--

JUDGE KOUTRAS: No, no, no, no, as far as your--you're
wearing two hats. Let's put on the employee hat. As a
paid employee of Mathies, do you dispute the fact that
the Company has the--the management has the--

THE WITNESS: Right to direct a work force.

JUDGE KOUTRAS: Right to direct it's work force. Tell
you where to report for work?

THE WITNESS: Yes.

JUDGE KOUTRAS: Okay. Now, you tell me how you would
like to accomodate both things. From what I heard from
the opening statements

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in this case mine management wants you to report to the Thomas
portal and go to work, and then when you're called upon to do the
walk around that they more or less according to the Government
side of the story here--

THE WITNESS: I would have no problem going to the
Thomas portal. I will go to the Thomas portal and check
in there, and then travel to wherever the Inspector is
at for his inspection.

JUDGE KOUTRAS: Okay, you're willing to do that--

THE WITNESS: I have no problem doing that, no.

JUDGE KOUTRAS: You're willing to do that?

THE WITNESS: I'm willing to do that.

JUDGE KOUTRAS: In your own personal vehicle?

THE WITNESS: Yes.

JUDGE KOUTRAS: And, you say the Company management
doesn't want you to do that?

THE WITNESS: That's what management has said.

JUDGE KOUTRAS: And, what reasons are they giving you
for refusing you to use your own vehicle?

THE WITNESS: Well, at the time that I requested to do
that was the second meeting in February, and, at that
time Mr. Karazsia said that he just felt I should wait
for this particular case to go to a hearing, and let
you decide that.

JUDGE KOUTRAS: What about the first time, now, I
couldn't understand, once the case is in litigation--

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THE WITNESS: The first time--the first time was--the question
wasn't brought up about me using my own vehicle.

JUDGE KOUTRAS: What was brought up then?

THE WITNESS: About me just traveling with the
Inspector--that particular day. And, at that time I was
told that action would be taken against me. There was
never a question brought up about me reporting to my
work portal and then traveling back to the Linden
portal. That was brought up at the second meeting.

And, at (Tr. 84Ä85):

*       *      *       *       *       *       *      *

THE WITNESS: I believe what you're getting at there is
me traveling from Thomas to Linden in my own vehicle,
which I stated earlier, I'm willing to do that prior to
the shift. I'm willing to do that on my own time, not
on company time. I'm willing to take the responsibility
to drive my own vehicle, and my liability myself,
traveling from the portal to the other portal.

JUDGE KOUTRAS: Once you get there, taking the chance of
the Inspector showing up, is that what you're saying?
What if he doesn't show up?

THE WITNESS: Well, the Inspector is normally there at
7:30 in the morning. I could easily call--you're talking
about ten minutes difference in traveling time, I could
easily call that portal, if the Inspector was there
then travel--be at that portal before 8:00 a.m., where I
would still be on my own time; I wouldn't be on
company's time. I could actually leave Thomas portal at
a quarter to eight, and be at Linden portal before 8:00
a.m., on my own time where I would not start on company
time until 8:00 a.m.

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JUDGE KOUTRAS: And, what if the Inspector weren't there,
you'd just turn around and come back?

THE WITNESS: Well, I would call to make sure--if he
wasn't there I wouldn't travel to that portal. I mean
if I called that portal at twenty to eight, and, no
Inspector was there--the majority of the times the
Inspector wouldn't be coming that particular day. Just
about in all cases they're there by half past.

 Mr. Delisio stated that during 1985 there were approximately

70 different occasions when he missed a partial work shift or
left the mine early to attend to union business, and that mine
management never objected to his absences or complained that his
mine examiner duties could not be performed by anyone else (Tr.
44). He confirmed that on each of these occasions, other union
members accompanied the inspectors on their inspection rounds.
These walkarounds representatives would either be persons
designated by him or the regular walkaround representative at the
Linden Portal. He also confirmed that there is a regular union
walkaround representative available at the Linden Portal during
the shifts that he works at the Thomas Portal (Tr. 45Ä47). He
further explained the circumstances concerning his absences from
work as follows (Tr. 59Ä61):

JUDGE KOUTRAS: Mr. Delisio, let me ask you this
question. These times when you have business downtown
with the National or International Union, you mean to
tell me you simply go, and mine management is totally
unaware of it?

THE WITNESS: On occasion.

JUDGE KOUTRAS: About how many occasions? Is it usually
your practice to let somebody know at the mine that
you're not going to be there so somebody else--

THE WITNESS: I make an attempt to but, there's
occasions when I can't--

JUDGE KOUTRAS: How many times are you successful in
reaching the mine management to

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tell them that you're going to be away on union business?
More than the other way?

THE WITNESS: Yes.

JUDGE KOUTRAS: Simply not showing up?

THE WITNESS: More, yes.

JUDGE KOUTRAS: What is your job as a mine examiner what
precisely do you do as a mine examiner?

THE WITNESS: I examine an area of the mine for
hazardous conditions, for gas--

JUDGE KOUTRAS: Preshift, that sort of thing?

THE WITNESS: Preshift examination, yes.

JUDGE KOUTRAS: That's a pretty important job right?

THE WITNESS: Yes, it is.

JUDGE KOUTRAS: Now, if you simply don't show up, and go
on downtown, where does that put the--

THE WITNESS: I really don't know, cause management has
never questioned me on it.

JUDGE KOUTRAS: But, what I'm--the point I'm making, is
it true or not true that most of the time that you're
away on union business, and mine management is aware of
it, it's not simply a situation of your not showing up,
and them not doing anything.

THE WITNESS: Yeah, I would say the majority of the
time, yes, they would know that. I'm sure the foreman
at the start of the shift looks to see if I'm there on
occasions when I don't call in, and, he's aware of it
then, and that foreman the majority of the time does my
job. That particular foreman.

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JUDGE KOUTRAS: Well, on those occasions when you are not
there, does he naturally assume that you're off on union
business, or--

THE WITNESS: I don't know. He's never questioned me on
it so I really don't know what he assumes.

JUDGE KOUTRAS: When you report back on your next shift
do you always have an excuse of some kind, a note or
something?

THE WITNESS: No, I don't.

JUDGE KOUTRAS: So, any time you're not there at the
mine, mine management just knows automatically that
you're off on union business, and they don't say
anything to you?

THE WITNESS: I-- I-- I imagine that's what they do, I
really don't know how they handle that.

JUDGE KOUTRAS: Okay.

THE WITNESS: I have to say that a lot of those
instances, I mentioned 70 cases, a lot of those 70
cases were when I was at the Linden portal on a safety
inspection. I do monthly safety inspections where I'm
at the Linden portal, and some of those other instances
where I would be at the Washington MSHA office, at
Manager's conferences. It's not that I'm missing 70
days of work a year, you know, I'm on union business
either out there at a conference where managements with
me at that time, or I'm at the Linden portal where the
prep plant will have you on safety inspections. I don't
want you to look at that number and say well, this
fellow is missing 70 days of work, or 70 partial days
of work a year, you know--

 Mr. Delisio believes that he is the "most qualified" first

choice of the miners at the Linden Portal to accompany inspectors
during their inspections because the chairman of the safety
committee has always travelled with the inspectors and none of
the walkarounds at the Linden Portal have state safety
certifications as he does (Tr. 48). MSHA's

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counsel conceded that there are no particular "certification
requirements" for a miner to serve as a walkaround
representatives, and whoever the miners select for this task may
serve as their walkaround representative (Tr. 49). Counsel
further explained her position as follows at (Tr. 50Ä52):

JUDGE KOUTRAS: Well, is he the first choice because he
says he's the first choice, or is it because he's on
the Safety Committee, or is he the first choice because
the miners have said, Mr. Delisio, you as Chairman of
the Safety Committee, are the only Safety
Representative qualified to accompany a Federal
Inspector? How many members are on the Safety
Committee? Three?

MS. HENRY: Three.

JUDGE KOUTRAS: How about the other two? What choices
would they be, second and third, or--

MS. HENRY: They're all on different shifts.

JUDGE KOUTRAS: They work on different shifts?

MS. HENRY: Yes, Your Honor. So on the particular time--

JUDGE KOUTRAS: On the shift that Mr. Delisio works on--

MS. HENRY: On the shift that Mr. Delisio works, he
would be the only Safety Committee member available to
accompany the Federal Inspector.

JUDGE KOUTRAS: I understand that, but--

MS. HENRY: And, our point is that--our contention is
that this is the miners first choice as the
representative. When the miners go in to elect members
of the Safety Committee, as there has been testimony,
they are aware that the duties of the members of the
Safety Committee is that of walk around. If they wanted
somebody else to accompany the

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Inspector on a walk around, they would elect that person
to the Safety Committee.

JUDGE KOUTRAS: You mean the only reason for someone
being on the Safety Committee is that he's available
and willing to go as a walk around?

MS. HENRY: Not the only reason, but one of the reasons.
And, that management here is attempting, and has been,
in numerous cases struck down, attempting to interfere
with the miners choice of representative. The plain
language of the Statute states that the miners choice
must accompany the Inspector, not the most convenient
choice for the Company, to accompany the Inspector.
And,--

JUDGE KOUTRAS: Do you view that right as being
absolute?

MS. HENRY: Yes, Your Honor. Definitely. the legislative
history--

JUDGE KOUTRAS: Well, it's not absolute when he's
missing though, and designates somebody else.

MS. HENRY: Yes, Your Honor, but, that is the miners
choice, not the Company's choice.

 Mr. Delisio stated that in 1980 or 1981, mine management

allowed union president Ron Stipanovich to travel from portal to
portal in his own car on company time to accompany inspectors
during inspections. He confirmed that mine management has never
indicated to him that he was not the first choice of miners for
purposes of serving as the union inspection walkaround
representative (Tr. 54Ä55). He conceded that the union-management
collective bargaining agreement does not specify who may function
as the walkaround representative (Tr. 55, 58). Although Mr.
Delisio claimed that other miners were permitted to travel from
portal to portal, he could not identify them (Tr. 58).

 Mr. Delisio confirmed that the mine was shut down for 10

months from June 1982 to May 1983, and that prior to this time
the mine employed approximately 600 miners who entered at two
production portals. Since that time, the mine employs

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approximately 320 miners, and the Linden Portal is the only
production portal, while the Thomas Portal only has miners
involved in haulage and some construction and maintenance work
(Tr. 57, 64).

 Mr. Delisio confirmed that when he worked at the Linden

Portal, other union members at the Thomas performed the
walkaround duties during an inspection at that portal. He also
confirmed that at the present time, if he is absent from the
Thomas Portal the safety committee may designate other miners as
the walkaround representative in his absence (Tr. 65). When asked
whether he had ever travelled from the Linden Portal to the
Thomas Portal to accompany any inspectors during their
inspections, he explained as follows (Tr. 66Ä69):

THE WITNESS: Did I ever travel from Linden portal to
Thomas portal to go with an Inspector?

JUDGE KOUTRAS: Right.

THE WITNESS: No, I didn't.

JUDGE KOUTRAS: My question is, why didn't you?

THE WITNESS: Because--I can't answer why I didn't.
Because I felt that the Company policy was that I was
not allowed to do that--the only thing I can say. It's
always been told to the Safety Committee by management
that we are not allowed to travel from portal to
portal, and that's what the Safety Committee--this
Safety Committee had believed until we got an
interpretation of the law, or until we found out that
we were being denied our rights.

JUDGE KOUTRAS: Who gave you the interpretation that you
had a right to go from portal to portal?

THE WITNESS: Well, I don't know whether I got the
interpretation myself from reading the Federal law, or
whether it came from someone associated with the
Federal Government.

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JUDGE KOUTRAS: Well, who--I mean, did somebody suggest to
you that--

THE WITNESS: I believe I got it looking at cases that
were decided on walk around rights.

JUDGE KOUTRAS: What cases?

THE WITNESS: I don't know.

*       *       *        *        *       *         *     *

JUDGE KOUTRAS: Why wasn't a case brought then?

THE WITNESS: Because there was never--as I said, I felt
that, you know, I was told that I was not allowed to do
that, so I just assumed that that was correct.

JUDGE KOUTRAS: Okay. When you went to--initially with
Mr.--with the Federal Inspector to the Linden portal on
the day of July 30th, how did that all come about? Was
this--I'm going to lay it right on the line, was this a
test situation? Was this a planned confrontation, or
was this--you just happened to appear at the Linden
portal knowing that the Inspector was going to be
there?

THE WITNESS: It was a situation that came about in June
when I mentioned it at a communication meeting that I
was going to stop at Linden portal on my daylight shift
and accompany the Inspector. And, that was a Monday,
that was my daylight shift and that's exactly what I
did. Yes, I guess you could say it was a--

JUDGE KOUTRAS: How did you know the Inspector was
coming to Linden?

THE WITNESS: Well, I got to the Linden portal roughly
around 7:30 and the Inspector was already at the
property. If the Inspector was not at the property I
would have proceeded to my work portal at Thomas.

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~1788
JUDGE KOUTRAS: So, you just took a chance that he would
be there?

THE WITNESS: Ninety-nine percent of the time they are
there. They do regular inspections at the mine.

JUDGE KOUTRAS: Are you familiar with--well,--.
Ninety-nine of the inspections are done at Linden, and
also ninety-nine percent of the inspections are also
done on the daylight shift, rather than the afternoon
shift, right?

THE WITNESS: Right.

JUDGE KOUTRAS: So, at that particular Mathies operation
the mine operator has a pretty good idea on when an
Inspector is likely to show up, and where he's
expected--where he's likely to show up, is that the
idea?

THE WITNESS: Yes.

 Mr. Delisio confirmed that it was the past and present

position of the Union that it did not want miners to be in
vehicles operated by company personnel and did not want miners
using their own personal vehicles for transportation between
locations at the mine, and that this position has been
communicated to mine management (Tr. 82). However, he stated that
the Union has never taken this position with respect to safety
committeemen travelling from portal to portal in their personal
vehicles for the purpose of accompanying inspectors, and that
mine management has never stated the union's position as a reason
for not allowing him to use his vehicle to travel from portal to
portal for inspection purposes (Tr. 83).

 MSHA Special Investigator John Chambers confirmed that he

conductd the investigation of the complaint filed by Mr. Delisio
in this case, and that he interviewed and took statements from
mine management representatives Edmund Baker, George Karazsia,
and Malcolm Dunbar. He stated that all three individuals advised
him that they were not preventing Mr. Delisio from travelling
with the inspector, but wanted him to report to his place of work
(Tr. 88).

 Mr. Chambers stated that during his investigation, Safety

Director Baker confirmed that he had telephoned

---

Page 19

~1789
Mr. Delisio's home on July 29. Mr. Chambers identified exhibit
GÄ3, as a list of questions asked of Mr. Baker during the
investigation, and he read into the record the following question
asked of Mr. Baker, and his response (Tr. 89Ä90):

Q. Okay. Could you read where I'm pointing, the last
question. Could you read that for us for the record?

A. Yes, ma'am. "If Joe Delisio had first reported to
his designated work station, then informed management
of his desire to change portals, who would--what would
management's position be?" And, do you want the answer?

Q. Yes, please.

A. "Management would not authorize a portal change
since the portal is more than--since the portal is more
than well represented with union walk arounds. With
market conditions, and absenteeism as they are, Matnies
cannot properly afford the moving of work force from
portal to portal."

 Mr. Chambers identified exhibit GÄ2, as a statement taken

from Superintendent George Karazsia, and he confirmed that Mr.
Karazsia gave Mr. Delisio a verbal warning and indicated that
action would be taken if he did not report to his reporting work
portal. He also indicated that the statement by Mr. Karazsia
reflects that Mr. Delisio was told not to leave the Thomas Portal
and go to Linden, or report to Linden before his shift (Tr.
92Ä93). Mr. Chambers confirmed that he spoke with MSHA Inspector
Philip Freese, but that he no longer is employed with MSHA (Tr.
92).

 On cross-examination, Mr. Chambers stated that he conducted

the investigation alone, spoke to several company officials, but
has no notes. He confirmed that his investigation reflected no
real dispute concerning the facts and no variation among the
statements made by either side of the dispute (Tr. 94). He
discussed the procedures he followed in reporting the results of
his investigations, and did not believe that there were any undue
delays in processing the case (Tr. 95Ä96). Mr. Chambers stated
that the question concerning the use of private automobiles was
not raised during his investigation, and that "the thing that
came up during the investigation was that they did say if you
don't

---

Page 20

~1790
report to your place of duty, there will be action taken" (Tr.
99).

 On recall, Mr. Chambers stated that during the course of his

investigation he did not contact any of the miners at the Linden
Portal other than Union President Ron Stipanovich. Mr. Chambers
confirmed that exhibit GÄ5 is a list of the miners working at the
Linden Portal, and exhibit GÄ4, is a list of available
walkarounds at that portal. Both lists were supplied by mine
management during the investigation. Based on these lists, Mr.
Chambers confirmed that during the day shift at the Linden Portal
there were approximately 12 miners who were familiar with the
duties of a walkaround representative, and had served as
walkarounds during July and August 1985. He confirmed that he did
not interview any of the miners on the lists (Tr. 109Ä113).

 Joseph Tortorea, MSHA Mining Engineer and Senior Special

Investigator, stated that his duties include the assignment of
cases to special investigators and the review of investigative
reports to determine whether or not there is enough evidence to
forward the case to MSHA's Arlington, Virginia office for action.
Mr. Tortorea stated that his initial review of Mr. Delisio's
complaint raised a question of interpretation of what mine
management meant by Mr. Delisio "not reporting to his portal." He
confirmed that he drafted the questions put to Mr. Baker by Mr.
Chambers in exhibit GÄ3 (Tr. 103).

 Mr. Tortorea confirmed that after reviewing Mr. Chambers'

final report, he concluded that mine management intended to
discipline Mr. Delisio if he did not report to work at the Thomas
Portal, regardless of his desire to report to Linden first or to
report to Thomas and then travel to Linden (Tr. 105).

 On cross-examination, Mr. Tortorea confirmed that the case

was not referred to Arlington within 45 days because of the
additional work that had to be done by Mr. Chambers. He believed
the case was referred to Arlington within 58 or 59 days, and once
this was done he had no part in any MSHA subsequent decisions. He
also confirmed that while he was not actively engaged in the
investigation of the complaint and conducted no interviews, he
monitored the case as it progressed, and does so in all cases
which he assigns for investigation (Tr. 106). In his opinion, any
threat of disciplinary action against a miner by means of a
warning would be considered "interference" and "discriminatory"
(Tr. 107).

---

Page 21

~1791
Ronald L. Stipanovich testified that he has been employed by the
respondent for over 11 years and is the president of the union
local and a member of the mine safety committee. He stated that
sometime in 1977 or 1978, he participated in a local union
meeting where the miners voted that the safety committee would
serve as the walkaround representatives to accompany Federal
inspectors during their inspections. Since the chairman of the
safety committee was the individual who received the most votes
in the election, it was decided that the chairman should be "the
first to go if there was an inspector on the property," and Mr.
Stipanovich could not recall the actual words "first choice"
being used (Tr. 130). This decision was made by a vote of the
general membership of the local, and since he became president in
April, 1983, no members have expressed any dissatisfaction with
the designation of the safety committee as the miner's
representatives on walkarounds and the matter has never been
brought up again for another vote (Tr. 132Ä133).

 Mr. Stipanovich stated that the union furnishes written

lists to mine management indicating the names of the union
representatives and the members of the safety committees. The
chairman of the committee usually furnishes the names of the
individuals who serve as walkaround representatives (Tr. 134). He
confirmed that he has served as a walkaround representative, and
that prior to 1982, before he became president of the local, and
prior to the lay off, there were two instances when he travelled
from the Thomas Portal, which was his work station, to the Linden
Portal or the preparation plant in his automobile to accompany
Federal inspectors on their inspection and there "was no
problem." He stated that before 1982, this was a "common
practice" (Tr. 135).

 Mr. Stipanovich stated that exhibit GÄ5 is a list of the

crew members used by the foremen to ascertain who is on each
particular crew. The names of the foremen are "blacked out," and
the list is not a list of authorized miner walkaround
representatives. He identified exhibit GÄ4, as a list containing
the names of miners who have accompanied Federal inspectors, and
he did not regard it as a list supplied by the union to mine
management. He alluded to two other lists given to management as
"a courtesy" by the union in order to insure that the miners were
paid in the event they decided to accompany an inspector during
an inspection. He did not regard these lists as definite chosen
union walkaround representatives (Tr. 137). He regarded these
lists as "substitute lists" of walkarounds to be used when the

---

Page 22

~1792
safety committee or chairman were not available. He indicated
that it was common knowledge and practice that the chairman and
the safety committee are the first options to accompany
inspectors, and the other miners listed are substitutes (Tr.
138). The lists were never intended as designated "first choices"
of miner walkaround representatives (Tr. 139).

 Mr. Stipanovich stated that he knew of no instances when the

miners have met to select someone other than a safety
committeeman or chairman to be their walkaround representative
(Tr. 141). He stated that it is reasonable to assume that the
miners listed on exhibit GÄ4, as accompanying inspectors on the
dates indicated, did so because the regular safety committeemen
were not available on those days (Tr. 144). In order to protect
its members, the union makes sure that someone is available to
accompany an inspector (Tr. 144).

 Mr. Stipanovich stated that at the present time there is

usually only one MSHA inspector at the mine, but at least 2 days
a week there may be two or three inspectors present. There are
times regularly when someone else other than the safety
committeemen would need to be available to serve as a walkaround
(Tr. 148). He confirmed that he was not always available, and
that rotations of individuals serving as walkarounds are
necessary as the work shifts rotate (Tr. 148). Mr. Stipanovich
stated that it has been his experience that once mine management
issues a verbal warning, it usually follows it up with some kind
of discipline (Tr. 150).

 Mr. Stipanovich stated that on two occasions since February,

1984, he has travelled with company safety escort Kosack from the
Linden Portal to the Thomas Portal or the preparation plant in a
company car to meet an inspector and management never refused to
allow him to do this (Tr. 151). Prior to the layoff there were
numerous occasions when he travelled with company safety
inspectors from one portal to another in their personal vehicles
or his own automobile because company vehicles were not available
(Tr. 152Ä153).

 Mr. Stipanovich stated that the question concerning the use

of private automobiles on mine property came about primarily as a
result of the union's concern with miners transporting 10 to 12
people in the back of their pickups or in their automobiles. The
union decided that this was not a safe and good practice, because
accidents occurred. He stated that one miner, Jimmy Mills
"utilizes his own vehicle a lot" because he begins work at 6:00
or 6:30 a.m. running

---

Page 23

~1793
the fans and works at the water treatment plant in Mingo (Tr.
154).

 On cross-examination, Mr. Stipanovich responded as follows

with respect to Jimmy Mills' use of his own automobile (Tr.
157Ä159):

Q. Mr. Stipanovich, to pick up something here, this Jim
Mills, the individual you named, you left me with the
distinct impression that he uses his personal vehicle
throughout his work shift to go and check on things
like fans and things like that, am I correct in what
you're trying to tell me?

A. I say that he doesn't use it everyday, but, he has
utilized his own personal vehicle, yes.

Q. Well, isn't it true that he is issued a truck by the
Company to make these kinds of stops where he has to go
inspect fans or sub-stations?

A. Well, there's a truck there, yes.

Q. Isn't it the fact that what happens is that
sometimes on his way to his portal, he'll stop and
check one of these locations, and, then when he gets
there he uses the Company truck throughout the rest of
the day to accomplish his authorized duties?

A. Sometimes that does happen, but, also he has--I know
that he has used his own vehicle.

Q. Well, I'm trying to make it clear when he uses his
own vehicle, and, I'm asking if isn't it true that what
happens with this individual is that apparently
wherever he lives he can stop off on his way to his
assigned portal, and, check a fan or something, drive
to work, park his car, he'll get in the Company truck
and he'll continue to do whatever he's doing in
checking above ground facilities. And, that's whats
happening with Mr. Mills.

---

Page 24

~1794
A. Sometimes it does, but, I stated sometimes he uses
his own vehicle during the course of his day.

Q. And, how often is that sometimes, do you know?

A. I don't have an average, you know, if you want me to
say twice, three times a week, I can't answer that.

Q. You don't know?

A. I know that the fact that he has used his own
vehicle.

Q. He has used it, but, you don't know how often?

A. Yes.

Q. Okay. Now, you indicated you were aware that the
union and the--perhaps you individually, had raised the
concerns with the Company about the miners use of
personal vehicles to transport miners between
locations?

A. Yes.

Q. Now, you left me with the distinct impression that
the only concern the miners had was getting in the back
of open pick up trucks, or something like that?

A. That was the complaint that was issued to
management.

Q. Well, I'm going to ask you straight out now, is that
the only thing, about people getting in the back of
pick up trucks, or, did the miners also let the Company
know that they were concerned about miners driving
their cars inside automobiles between locations?

A. It was both.

---

Page 25

~1795
Q. It was both, right. And, when you raise a concern like
that to the Company, you expect them to take an interest
in it, do you not?

A. Yes, sir, I do.

 Mr. Stipanovich stated that prior to 1982, there were many

times when two or more MSHA inspectors were on the property and
no safety committeeman or chairman was available, he would drive
his own car to meet or travel with an inspector. These
occurrences varied from one day to 5 days (Tr. 161). He stated
that mine management has never directly instituted a policy
against the use of private automobiles by miners on mine
property, and he has never inquired about any such policy (Tr.
162). He confirmed that since 1984, he has on two occasions been
transported by a member of mine management in that individual's
private automobile from portal to portal or to the preparation
plant for the purpose of accompanying a Federal inspector, and
that he has no objection to doing this (Tr. 162).

 Mr. Stipanovich identified the members of the safety

committee for the period July 9 through August 30, 1985, as Mr.
Delisio, chairman, and Ronald Mason and Joe Balluch. He confirmed
that he recognizes the names of the 14 miners which appear on
exhibit RÄ1, dated August 9, 1983, and that the document is
signed by Mr. Delisio. The list contains the names of Mr. Mason
and Mr. Balluch. He characterized the list as a "convenience
list," and conceded that it does not designate the "choices" for
walkaround purposes (Tr. 165). He did not know whether a current
list is in existence (Tr. 167). With regard to exhibit GÄ4,
containing a list of miners who served as walkarounds from July 9
to September 30, 1985, Mr. Stipanovich stated that he knows of no
complaints concerning the names on that list (Tr. 169). MSHA's
counsel stated that she had no reason to believe that the
individuals listed did not accompany the inspectors on the dates
indicated on the list in question (Tr. 170).

 Mr. Stipanovich confirmed that he was with Mr. Delisio when

he informed Mr. Karazsia that he wanted to walk around at the
Linden Portal, and that Mr. Karazsia did not question Mr.
Delisio's designation as the authorized representative of the
miners (Tr. 176). He also confirmed that in the years he has
worked at the mine, mine management has never questioned a safety
committeeman's designation as the authorized miner representative
for walkaround purposes. Prior to Mr. Delisio's case, management
never used as a reason for denying a committeeman his walkaround
rights the fact that he

---

Page 26

~1796
would have to travel from portal to portal to accompany an
inspector. Management never refused a committeeman the right to
accompany an inspector at another portal because he had no means
of travel (Tr. 176).

 Mr. Stipanovich confirmed that mine management has on

occasion attempted to have a miner on "light duty" serve as a
walkaround, rather than the designated walkaround who may be
busier. He has resisted these efforts by informing management
that the designated representative must go, and management has
never contested his decision in this regard (Tr. 178Ä179). Prior
to Mr. Delisio's case, management never contested the right of
anyone to serve as a walkaround representative (Tr. 179).

 Mr. Stipanovich stated that prior to July 30, 1985, the

safety committee raised the question of Mr. Delisio's desire to
accompany Federal inspectors at the Linden Portal at a regular
communications meeting held with mine management, and Mr. Baker
was present at that meeting (Tr. 183Ä184).

 Mr. Stipanovich stated that in the event an inspector

decides to go to the mine supply yard or the preparation plant to
begin his inspection, a miner's representative would not likely
walkaround with him because there are only two miners assigned to
work at those locations and mine management would not likely
excuse them from their duties to accompany the inspector (Tr.
185). In this event, because of management's policy prohibiting
miners from travelling from portal to portal to accompany
inspectors, no miner representative would accompany the
inspector, and only the company escort would go with the
inspector (Tr. 185Ä187). He explained further that the two miners
at the supply yard and preparation plant begin work at 7:15 or
7:30 a.m., and quit at 2:15 p.m. By the time an inspector
arrives, the men are into their work shift, and management is not
likely to excuse them to accompany an inspector (Tr. 187).

 With regard to the supply yard and preparation plant, MSHA's

counsel made the following assertions (Tr. 188Ä191).

MS. HENRY: The Company has a company wide policy. It
won't let people travel from portal to portal. It's not
just Mr. Delisio travelling from the Thomas portal to
the Linden portal. It won't let Mr. Delisio, if he's on
duty at the Thomas portal, go from the Thomas portal to
the supply yard. Or, it won't let Mr. Delisio, if he's
on duty at the

---

Page 27

~1797
Thomas portal during day shift, go from the Thomas portal
to the prep plant. There are occasions, because there are
two miners that are working there, and,--

JUDGE KOUTRAS: Well, let them go there for what reason,
I mean--

MS. HENRY: For inspection. For walk around. As a
result, there are some occasions where the Inspector
walks around in the prep plant and in the supply yard
when there is no union representative, because the
Company will not allow travel. And, they will not allow
the designated representative of the miners to travel.
And, what we are saying here today is, whether it's Mr.
Delisio's travelling from the Thomas portal to the
Linden portal, or whether it's Mr. Delisio travelling
from the Thomas portal to the supply yard, whatever,
this travel policy of the Company is unreasonable, and
designed to impede and interfere with the miner's right
to walk around.

JUDGE KOUTRAS: Well, let me ask you this question. How
long has this been going on?

MS. HENRY: I don't know how long it's been going on
with the supply yard and the prep plant.

*      *       *        *        *       *      *        *

MS. HENRY: And, it is our contention, although I am
sure the Company didn't want to qualify that, it is our
contention that that is what occurred. That the Company
will not allow the designated representative of the
miners, if the designated representative is not already
at the supply yard or the prep plant to travel from the
Linden portal or the Thomas portal to the prep plant or
to the supply yard. It's all part of this general--we're
not allowing people to travel.

JUDGE KOUTRAS: Did MSHA conduct an investigation about
this general--

---

Page 28

~1798
MS. HENRY: We did not find out about that particular event
until this morning.

JUDGE KOUTRAS: This morning?

MS. HENRY: Yes, Your Honor. We were--when we were--

JUDGE KOUTRAS: And, why is this this morning, I mean,
this case obviously has generated a lot of interest.
You've got union people here, probably from the
International and the National, and, all of a sudden
this morning you find out that the mine operator has
not permitted walk arounds at the supply and the
preparation plant. I'm surprised that the union hasn't--

MS. HENRY: Your Honor--I'm surprised--well, Your Honor we
were in all fairness concentrating on Mr. Delisio's
specific right in the investigation. We only
concentrated on the events of July 30, 1985. Was Mr.
Delisio the authorized representative? Was he denied
permission to go? MSHA's feeling is that when there is
a designated authorized representative, the miner's
authorized representative, then he should be permitted
to go. And, believing that, and believing that to be
true in Mr. Delisio's circumstance, we filed a
complaint on Mr. Delisio's behalf against the Company.
Why the investigation--the investigation was not more
broad than that, it was concentrating on Mr. Delisio's
circumstance. And, there was no inquiry as to whether
this particular circumstance might have hampered other
individuals, but, MSHA's feeling was that the policy in
general was wrong, because it does hamper the efforts
of the miner's representative to be at the place where
the inspection is. And, whether that inspection is at
the Linden portal or at the prep plant or at the supply
yard, when the miner's designated representative is not
allowed, effectively whether it's through circular
reasoning--well, it's not your reporting, it's not that
we think you're going on the walk around we don't like,
it's the fact that you haven't reported--whether it's

---

Page 29

~1799
that kind of circular reasoning or whether it's simply
straight out someone's not going, that that's an
interference with the language is unambiguous, the
only one that was investigated at the time. Therefore,
it was not discovered until this morning that there
were--other than Mr. Delisio's second complaint--second
occurrence of trying to attempting to go to the Linden
portal.

 In response to further questions, Mr. Stipanovich stated

that MSHA inspectors have initiated their inspections at the
suppy yard, but he could not be specific as to the dates when
this has occurred (Tr. 207).

 John R. Schmitt testified that he has been employed by the

respondent since May, 1975, and serves as treasurer of the local
union. He previously served as chairman of the safety committee
from 1976 to 1982, but lost the position because of a layoff. He
confirmed that when he served as chairman he was the authorized
miner's walkaround representative for purposes of accompanying
Federal mine inspectors. He confirmed that he was on the safety
committee and present at the time the union membership voted to
designate the chairman and members of the safety committee as the
authorized walkaround representatives of the miners. He also
confirmed that when he served as committee chairman he was the
designated authorized walkaround representative by virtue of his
office and the vote of the general membership (Tr. 213Ä214).

 Mr. Schmitt stated that when he served as chairman of the

committee he was able to travel from portal to portal to
accompany inspectors as the union walkaround representative and
did so by using his own automobile, and at no time did the
respondent ever deny that he was the authorized walkaround
representative (Tr. 214Ä215). Mr. Schmitt stated that he
frequently travelled between portals in his own automobile from
his normal work location at the Linden Portal. During this time,
he accompanied inspectors everyday while on the steady daylight
shift (Tr. 216), and he confirmed that three full portals were in
operation at that time (Tr. 215).

 Mr. Schmitt stated that the respondent never expressed any

displeasure with his absences while accompanying inspectors, and
he was never threatened in any way for serving as the walkaround
representative. Once he determined that an inspector was present
at another portal, he would simply

---

Page 30

~1800
inform mine management that he was going to accompany the
inspector and would drive to the portal in his car to walk around
with the inspector. He would travel from the Linden Portal to the
Thomas Portal in his car and management never prevented him from
doing so. During the time he was at the Thomas Portal, other
miners were available to serve as walkarounds, but he went
because he was the chairman of the safety committee and had to be
present at inspection close-outs, and had to deal with management
and the inspectors on behalf of the union. He stated further that
the "vote was taken that the chairman of the safety committee be
the head man to go" (Tr. 220). Management never questioned the
fact that he was the designated union walkaround representative
for the portals, the supply yard, or the preparation plant (Tr.
220Ä221).

 Although he is no longer the chairman of the safety

committee, Mr. Schmitt confirmed that he has served as a
walkaround at his present portal because there is no safety
committeeman there. If a member of the safety committee were
there, he would recognize the committeeman as the authorized
walkaround, even though he himself is qualified to walk around
(Tr. 221). No miners have ever questioned the fact that the
safety committeemen are their designated representatives (Tr.
222). There have been no suggestions that miners get together on
their work shifts and designate anyone other than a safety
committeeman as their representative, and it is common knowledge
among the miners that the chairman or members of the safety
committee act as their walkaround representatives (Tr. 223Ä224).

 On cross-examination, Mr. Schmitt reiterated that in 1976

and 1977 when he served as safety committee chairman he often
left his home Gamble Portal to travel to another portal where the
inspector would be beginning his inspection, and he did so in his
own car. In the event he encountered an inspector at one portal
and the inspector decided to go to another mine location for his
inspection, he and the company representative would travel with
the inspector in the inspector's car (Tr. 226).

 Mr. Schmitt confirmed that within the past month or 6 weeks

he raised a concern with mine management about the miners riding
in or being transported in private vehicles, and he explained the
situation as follows (Tr. 227Ä228):

A. Yes. In that particular situation we had a--I forget
just what it was--the miners were not able to go into
the mine at

---

Page 31

~1801
this particular time. Okay, there was a problem with the
elevator that--I think it was the elevator at Linden portal.
They brought everybody upstairs and they had a meeting, and,
at this meeting they said that they were going to transport
everybody to the Gamble portal and enter the mine from there.
And, I for one, was listening to what was going on and I
decided to raise my hand because my concern is in all honesty
that if a group of individuals as ourselves were transported
in different cars, my question was who is responsible for the
insurance, you know, if something were to happen to, you know,
this large amount of people going over to the mine. The Company
was accomodating enough to say that we would take people in
Company cars, as many as we could. I asked Malcolm Dunbar at
that meeting in front of all of management and the union,
what about travelling in our own cars over there or are you
going to provide Company cars, and Malcolm's answer to me was,
that's a good question. I did not get an answer. He said, that
was a good question, we'll have to check on that. And, as--not
to create any problems or anything further, we let it go at that,
and, I myself rode in the Company car over to Gamble and whatever
the other men did I don't know. But, I assume that most of them
rode in Company cars.

 Mr. Schmitt stated that while safety committeemen are

present at the Linden portal, they work different shifts. The one
committeeman who works the daylight shift would be the one to
accompany an inspector during that shift, but he does not work
the same shift as Mr. Delisio. If no committeemen are present,
the other miners listed on exhibit GÄ4, including himself, would
serve as the walkaround representative, and they have done so
(Tr. 232Ä234).

Respondent's Testimony and Evidence

 Malcolm Dunbar, respondent's safety manager, identified

exhibit RÄ2 as a copy of the Mathies Mine map, and he stated that
the Thomas Portal is approximately 5 miles from the Linden
Portal, and that the preparation plant is approximately 10 miles
from the Linden Portal. Mr. Dunbar stated that on the morning of
July 30, 1985, he was at the Thomas

---

Page 32

~1802
Portal and received a telephone call concerning a discussion
between Mr. Delisio and superintendent George Karazsia which was
taking place at the Linden Portal. Mr. Dunbar went to the Linden
Portal at 8:00 a.m., and learned that Mr. Delisio was there and
wanted to accompany a Federal inspector on his inspection rounds.
Mr. Dunbar confirmed that Mr. Delisio was advised by Mr. Karazsia
that he could not change portals on his own, and that if he
insisted on accompanying the inspector at the Linden Portal he
could possibly be disciplined for not reporting to his regular
duty station at the Thomas Portal. Mr. Dunbar stated that he
suggested that Mr. Delisio designate a miner working at the
Linden Portal to accompany the inspector as the walkaround
representative, but that Mr. Delisio refused and stated that if
he (Delisio) was not permitted to accompany the inspector, no one
would. Mr. Dunbar confirmed that the inspector conducted the
inspection without a walkaround representative (Tr. 244Ä248).

 Mr. Dunbar stated that since Mr. Delisio is assigned to the

Thomas Portal, his foreman would expect him to show up at that
portal for work. Allowing Mr. Delisio to first report to the
Linden Portal would cause confusion since the foreman would not
know his whereabouts or when he may be expected for work. With
regard to the use of private vehicles, Mr. Dunbar confirmed that
since 1982, and upon the recommendation of the union, the
respondent has to the extent possible, limited the use of
personal vehicles because of liability problems which may occur
while a miner is travelling on mine property. Mr. Dunbar pointed
out that there are many narrow roads, and the presence of school
children in the morning hours on the roads increases the
potential liability (Tr. 249).

 Mr. Dunbar confirmed that mine training sessions are usually

held at the Linden Portal, and since most of the employees are at
that portal, no transportation problems exist. For the miners
working at the Thomas Portal, the supply yard, and the
preparation plant, they are usually notified in advance of any
training at the Linden Portal, and they are permitted to
initially drive their vehicles to the Linden Portal, and when the
training classes are over, they simply drive home from the Linden
Portal (Tr. 250). With regard to replacement miners needed to
operate the 50Äton locomotives out of the Thomas Portal, Mr.
Dunbar confirmed that the company provides them transportation,
and that someone with a company car will pick them up at Linden
and transport them to Thomas, and will then return them to
Linden. However, if a miner requests permission to use his own
automobile, the company will permit them to do so. He indicated

---

Page 33

~1803
that "a lot of them" request to drive their own cars to Thomas so
that they may shower, and they then drive home from the Thomas
Portal (Tr. 251).

 Mr. Dunbar confirmed that during the year 1985, 391 Federal

inspectors were at one time or another on the mine property. He
also confirmed that the mine worked 250 days that year, and that
on any given day, an inspector was at the mine (Tr. 251).

 Mr. Dunbar stated that the company has suggested that if an

inspector originates his inspection at the Thomas Portal, Mr.
Delisio could then travel with him and go where-ever he chooses,
and management would know where he is (Tr. 252). Mr. Dunbar also
confirmed that within the last year, miners have frequently
accompanied Federal inspectors in the inspector's government car
during travel between different mine locations (Tr. 252). He
denied that the company has ever refused a miner the right to
walk around with inspectors at the supply yard or the preparation
plant. He explained that when inspectors usually show up at these
locations, the miners who are working there do not by choice
accompany the inspector. However, he indicated that inspectors
usually start their inspections at the Linden Portal and have a
walkaround with them when they go to the supply yard or
preparation plant. The only restriction by the company is to
prohibit miners from using their personal vehicles to shuttle
between these locations (Tr. 254).

 Mr. Dunbar confirmed that in February, 1986, Mr. Delisio

again attempted to accompany an inspector on an inspection out of
the Linden Portal, and he took the position that he had an MSHA
decision which allowed him to do this. Mr. Dunbar stated that he
explained to Mr. Delisio that the matter was still in litigation,
and that he advised Mr. Delisio that if the inspector would
initiate his inspection at the Thomas Portal and pick him up
there, he could accompany the inspector (Tr. 255).

 Mr. Dunbar stated that allowing Mr. Delisio to travel

underground from the Thomas Portal to the Linden Portal would
present a problem since there is only one self-propelled jeep
that is used by the mine examiner. Due to the complex underground
haulage system, the company would have to make special
arrangements to transport Mr. Delisio underground, and that the
transportation time would be from 20 minutes to an hour
underground between portals. Further, due to the fact that
underground trips of coal have the right of way, additional
problems would be presented in transporting Mr. Delisio back

---

Page 34

~1804
and forth underground (Tr. 256Ä258). Mr. Dunbar confirmed that
the verbal warning given to Mr. Delisio on July 30, was because
of his failure to be at his proper work station, and not because
of his wishing to serve as the miners' representative (Tr. 259).

 On cross-examination, Mr. Dunbar conceded that if Mr.

Delisio were to call his foreman from the Thomas Portal once an
inspection started, mine management would know of his
whereabouts. He also conceded that underground jeeps are
available at the Thomas Portal for the mine examiner, shift
foreman, and occasionally the maintenance foreman, and if all
three are running, there may be an extra jeep available for Mr.
Delisio (Tr. 260).

 In response to further questions, Mr. Dunbar testified as

follows (Tr. 261Ä267):

Q. Okay. And, isn't it true as a result of this
statement that you state in that particular piece of
information, that even if Joseph Delisio had reported
to the Thomas portal, and his foreman knew where he
was, and knew that he was at work, he would not be
allowed to go to the Linden portal to accompany the
inspector from that point, from the Thomas portal? He
would not then be allowed to go to the Linden portal?

A. We don't want him to change portals, no.

Q. What you're saying is, once he reports at that
portal he cannot go to the Linden portal to accompany
the inspector?

A. That's what I said, we don't want him to change
portals.

Q. Well, if he reports at his regular portal, is he not
in fact there--he has reported once he's reported to the
portal?

A. That's correct.

Q. You know where he is?

A. That's correct.

---

Page 35

~1805
Q. If he says he's going to the Linden portal do you have
any reason--to accompany the inspector on an inspection,
would you have any reason to believe that he wasn't going
to the Linden portal to accompany the inspector?

A. No.

Q. And, as you've already stated, once the inspection
starts, assuming he was there, you would know at all
times where Mr. Delisio was during the course of the
inspection--as much as you could?

A. Yes. Can I add something to that?

*        *      *       *       *        *       *        *

THE WITNESS: You know, what we're talking about here is
you're going to set precedence for something that maybe
right now you're talking about a good employee, Mr.
Delisio, on a one certain day going to another portal.
Well, this opens up where if it's fair for this one
individual, if next time we have two inspectors or as
the testimony has shown, we've had three or four, I
could have people traveling from Thomas portal to the
Linden portal, and some leaving from the Linden portal
going to the preparation plant, and some leaving from
the prep plant going somewhere else. And, this is
what's causing the majority of management's control
problems is--you know, everybody talks about an isolated
incidence, but, you're opening up a whole precedent
setting policy of losing control of a management
situation.

BY MS. HENRY:

Q. Mr. Dunbar, isn't it true that under the present
circumstances with only the Linden portal in full
production that it's highly unusual that you would have
this back and forth--with the three inspectors that
you're talking about. At this point in time there's
only one inspector generally on the premises.

---

Page 36

~1806
A. No. Not with three hundred and ninety one inspectors
shifts in 1985, no. That's a lot of inspectors.

Q. Yes, but, would you state that that the majority of
those inspection shift occur at the Linden portal?

A. Oh, yeah. The majority does.

Q. And, Mr. Dunbar, when Mr. Schmitt was on the Safety
Committee and called in to his mine, reported to his
mine, and then reported to a different mine, when the
mine was in full production--when all these portals were
open; the company did not stop him from using his
personal vehicle to go from portal to portal at that
point, did they?

A. No. But, again I'd like to add something if I could.

*      *        *      *       *      *       *       *

THE WITNESS: Whenever Mr. Schmitt gave his testimony,
he was Chairman of the Health and Safety Committee at
the mine. But, we had a different concept at the mine.
We had a lot more employees in the mine, we had almost
double the employees that what we have right now. As
far as the logistics problem, as far as a replacement
problem for Mr. Schmitt, whenever he left the property,
it did not exist as bad as it does right now.

BY MS. HENRY:

Q. But, Mr. Dunbar, didn't you just state that one of
your concerns is the control of people should the mine
come to full production? I mean, you just stated that
one of your concerns about allowing Mr. Delisio to use
his car is that should the mine come to full
production, and there would be more than one inspector
there, you wouldn't know where people were going in
their cars? Didn't you just say that?

A. Yeah.

---

Page 37

~1807
Q. Okay, well doesn't that conflict with your statement
that the reason you let him do it was because there was
more people.

A. No, I--

Q. Why didn't that become a problem when Mr. Schmitt
was the Chairman of the Safety Committee?

A. I never said, if the mine becomes full production,
I'm saying that the mine has a lot of inspectors, then
we have a lot of cross shifting, and a lot of changing.
I'm not talking about adding more people, I'm talking
about three inspectors, or even two inspectors with the
same three hundred and some people we have right now.

Q. But, the--assume for the moment, Mr. Dunbar, that
there is--it is not possible for Mr. Delisio to travel
with the MSHA inspector in the car to get from one
portal to another. Would it still be mine management's
position at that point that he could not take his own
personal vehicle to travel from one portal to another?

A. Yeah. We still don't want him to travel in his own
personal vehicle.

Q. Well, if Mr. Delisio was given a warning for not
being in his proper work location, and he is not
permitted to travel from his work location to the
location where the inspector is, aren't you in effect
denying him his right to go to the location where the
inspector is and accompany the inspector?

A. Not in my opinion because there's other people
available that can travel with the inspector.

Q. When you say there are other people available, are
you talking about other people who might then go on a
walk around should Joseph Delisio be unavailable?

---

Page 38

~1808
A. I'm talking about people that--yes, have gone on an
inspection a lot of times.

Q. Um-hum. And, during the times that they've gone on
these inspections, was Joseph Delisio permitted to
travel from his home portal, the Thomas portal to the
Linden portal?

A. He never raised that issue prior to July 30, 1985.

Q. Let's talk about post July 30, 1985. That's a lot of
what the list and--particularly the list that is in the
Government's Exhibit right now mostly concerns that,
and, you will agree that he did raise the question in
June--sometime in June of 1985, generally.

A. Yeah, I don't have personal knowledge, but I believe
that the testimony showed that.

Q. Okay. And, the walk around list that has been given
starts in July of 1985, so, it starts sometime after he
raised the question, but, before he actually went in
and talked to Mr. Karazsia on a specific day about a
specific inspection.

A. No response.

Q. Would you state that during that time period Joseph
Delisio was not permitted to travel by his own personal
vehicle once he reported to Thomas portal, from Thomas
portal to Linden portal?

A. Once it's in litigation he never attempted but the
one time in early '86.

Q. Um-hum. And, was he permitted at any time to travel
from the Thomas portal to say, the preparation plant?

A. Not--not unless the inspection was originated out of
there.

Q. And, how about from the Thomas portal to the supply
yard, would he have been permitted to travel?

---

Page 39

~1809
A. Not unless the inspection was originated out of Thomas.

 Mr. Dunbar stated that he has no problem with the

designation of the safety committeeman as the representative of
the miners. He further stated that he was not previously aware of
any "pecking order" or formal vote by the miners as to any order
in which miners would serve as the walkaround representative.
However, he conceded that if the chairman of the safety committee
were present at the same time that the other miners were present,
the general practice at the mine since the 1970's is that the
chairman would be the designated representative (Tr. 268).

 Mr. Dunbar confirmed that there are two members of the

safety committee working at the Linden Portal, and they would
normally accompany an inspector on his inspection. He also
confirmed that the union's request for a limitation on the use of
private automobiles was not in connection with travel from portal
to portal for the purpose of accompanying an inspector (Tr. 269).
He further confirmed that if no one at the supply yard was
willing to accompany an inspector there during an inspection, a
miner would not be permitted to travel there in his personal
vehicle or company vehicle in order to accompany the inspector
(Tr. 270).

 Mr. Dunbar confirmed that prior to 1982, safety committeeman

Schmitt was permitted to travel from portal to portal in his own
car to accompany an inspector (Tr. 271). Since there are only 10
miners on Mr. Delisio's shift at the Thomas Portal, and since he
is the only mine examiner, a replacement would have to be brought
in from the Linden Portal for Mr. Delisio, and the policy was
established so that management could control the work force (Tr.
272). Even if Mr. Delisio were employed at the Linden Portal, he
would still have to be replaced if he were to serve as the
walkaround, and mine management would still desire to exercise
management control over its workforce (Tr. 272Ä273).

 In response to further questions, Mr. Dunbar stated as

follows (Tr. 274Ä278):

JUDGE KOUTRAS: Well, the other point is, do you feel
that the--you recognize the right of a union walk around
to accompany a Federal Inspector, I think that's
obvious right?

THE WITNESS: That's correct.

---

Page 40

~1810
JUDGE KOUTRAS: But, you seem to feel if that right the
exercise of that right, entails changing personnel from
portal to portal that somehow the right is ended. Or, at
least has to be controlled in some way.

THE WITNESS: No. I see what you're saying, but, my only
thing with that is the way that we read 103(f) of the
Act is--nowhere in there does it say we have to have
special accomodations for people. We're complying with
the Act by supplying a representative, but, nowhere
does it say we have to go out of our way. Just as MSHA
says that they're not bound by the Act to go down and
pick him up at that portal; well, in the same respect
we're not bound by the Act to do special things to
insure that this particular individual goes with them.

JUDGE KOUTRAS: You indicated that your policy on use of
private automobiles is limited to the extent possible.

THE WITNESS: That's correct. We try to limit it to--as
much as we could. Now, we can't say absolute that you
know, nobody can--

JUDGE KOUTRAS: You have no absolute ban against the use
of private automobiles?

THE WITNESS: Exactly. Exactly. We do try to limit it.

JUDGE KOUTRAS: What would be the problem with allowing
Mr. Delisio to drive to the Linden portal in his own
automobile, after he reports to duty at the Thomas
portal?

THE WITNESS: Well, the only problem with that is we
would have to assume his liability with driving. Assume
his liability once he's done at the end of the day
driving back to his regular job. And, again, this opens
up a precedence that now it's just Mr. Delisio, but I
don't know--

---

Page 41

~1811
JUDGE KOUTRAS: Why don't you just have an absolute ban
on the use of private automobiles on the property?

THE WITNESS: It would be convenient to do that,
however, there are times when people for their
convenience like to drive down.

JUDGE KOUTRAS: Well, isn't this for his own
convenience?
THE WITNESS: It's for that and--yes, I can see what
you're saying.

JUDGE KOUTRAS: What if he signs a waiver of liability?
I mean, are there ways that you can accomodate Mr.
Delisio exercising his right of being a walk around at
the Linden portal?

THE WITNESS: Yeah, there's a real easy way you can
accomodate him, if MSHA will come down and just--

JUDGE KOUTRAS: And pick him up.

THE WITNESS: Just originate their inspection there.

JUDGE KOUTRAS: Start the inspection at Thomas?

THE WITNESS: Sure.

JUDGE KOUTRAS: Well, what I don't understand--there's
not too much to inspect at the Thomas portal is that
right? Most of activity is at the Linden portal?

THE WITNESS: Yes it is.

*      *      *      *       *       *        *         *

JUDGE KOUTRAS: And, your position here is--seems to be
that you didn't--if he was threatened, assuming one can
come to the conclusion that Mr. Delisio was threatened
or chastised or told that he would be subject to
disciplinary action, the Company's position is that
that threat or that conversation took

---

Page 42

~1812
place in the context of only because you didn't report
to duty, not because you want to exercise your walk
around rights?

THE WITNESS: That's exactly correct.

JUDGE KOUTRAS: But, if you put up these barriers to
having him carry out his rights as a walk around,
you're effectively doing the same thing aren't you?
You're precluding him from doing it, if you tell him
you can't use the car, you can't do this. We want the
MSHA Inspector to start there, you're effectively
precluding him from exercising his right.

THE WITNESS: I see what you're saying, yeah.

JUDGE KOUTRAS: Aren't you?

THE WITNESS: I see, yeah.

 Edmund R. Baker, respondent's general mine manager,

testified that during the summer of 1985, he was the underground
mine superintendent at the Mathies Mine. He confirmed that the
question of Mr. Delisio accompanying Federal inspectors at the
Linden Portal as the union walkaround representative was the
topic of conversation at a union/management "communications
meeting" which he attended sometime in late June, 1985. Mr. Baker
stated that Mr. Delisio indicated that he wanted to go to the
Linden Portal to accompany Federal inspectors when they appeared
there for their inspections, but that in view of the vacation
period, Mr. Delisio was advised not to do so. Mr. Baker stated
that he informed Mr. Delisio that he would subsequently contact
him to convey management's position, and that he later telephoned
his home and spoke with his wife.

 Mr. Baker confirmed that Mr. Delisio was advised that the

company had no objections to his serving as a union walkaround
representative, but that it was management's position that he had
to report to his regular duty station at the Thomas Portal and
could not use his personal automobile to travel to the Linden
Portal for the purpose of accompanying Federal inspectors. Mr.
Baker stated that mine management has suggested to Mr. Delisio
that he assign miners regularly working at the Linden Portal as
the walkaround representative, but that management could not
transport him from the Thomas Portal in company vehicles. Mr.
Baker confirmed that mine management, through Superintendent
George Karaszia,

---

Page 43

~1813
advised Mr. Delisio on July 30, 1985, that if he insisted on
first reporting to the Linden Portal instead of his usual duty
station at the Thomas Portal, he could be subject to possible
disciplinary action. Mr. Baker confirmed that he is in total
agreement with mine management's position in this matter as
testified to by safety manager Malcolm Dunbar (Tr. 284Ä289).

                          Discussion

 Section 103(f) of the Act, commonly referred to as "the

walkaround right," provides as follows:

     Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an opportunity
to accompany the Secretary or his authorized
representative during the physical inspection of any
coal or other mine made pursuant to the provisions of
subsection (a), for the purpose of aiding such
inspection and to participate in pre- or
post-inspection conferences held at the mine. Where
there is no authorized miner representative, the
Secretary or his authorized representative shall
consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such
representative of miners who is also an employee of the
operator shall suffer no loss of pay during the period
of his participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative from each party would further
aid the inspection, he can permit each party to have an
equal number of such additional representatives.
However, only one such representative of miners who is
an employee of the operator shall be entitled to suffer
no loss of pay during the period of such participation
under the provisions of this subsection. Compliance
with this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of
this Act.

 The facts in this case are not in serious dispute. Mr.

Delisio is employed at the mine as a "fire boss" or mine
examiner, and he also serves as the Chairman of the UMWA Mine

---

Page 44

~1814
Safety Committee. The mine consists of two portals, a preparation
plant, and a supply yard, all of which are inspected by MSHA
inspectors. The main coal producing portal is the Linden Portal,
and the majority of the work force enters the mine at that
location and work there. Virtually all of the mine inspections
conducted by MSHA begin at the Linden Portal during the 8:00 a.m.
production shift. A small compliment of miners, including Mr.
Delisio, work at the second Thomas Portal in construction and
transportation functions. The Thomas Portal is approximately 6
miles overland from the Linden Portal, and the preparation plant
is approximately 15 miles from the Linden Portal.

 Mr. Delisio has in the past accompanied MSHA inspectors at

the Thomas Portal in his capacity of safety committeemen and
designated miners' representative, and he did so without
objection or interference by mine management. Mr. Delisio is the
only safety committeeman on the day shift at the Thomas Portal,
and two other safety committeemen who work at the Linden Portal,
and who are also designated as miners' representatives, do not
work the same shifts as he does. The respondent concedes that the
safety committeemen are the duly designated representative of
miners for walkaround purposes.

 The record establishes that in late June, 1985, during a

labor/management "communications meeting," Mr. Delisio informed
mine management that he wished to accompany MSHA inspectors as
the miners' representative when they conducted inspections at the
Linden Portal. Subsequently, on July 30, 1985, Mr. Delisio, in
the company of the president of his local union and an MSHA
inspector, arrived at the Linden Portal shortly before the start
of his work shift and requested permission to accompany the
inspector on his inspection at that portal. Mine Superintendent
George Karaszia purportedly had "no problem" with Mr. Delisio
accompanying the inspector, but "verbally warned" Mr. Delisio
that if he did not report to his regular work station at the
Thomas Portal, he would be disciplined. Mr. Delisio did not
accompany the inspector, and he filed his complaint with MSHA
that same day.

 The record establishes that the question of Mr. Delisio

accompanying MSHA inspectors at the Linden Portal arose again in
February, 1986, although no additional complaint was filed. At
that time, Mr. Delisio appeared at the Linden Portal in the
company of an MSHA inspector and requested permission from
superintendent Karaszia to accompany the inspector on his
inspection at that portal. Mr. Delisio suggested that he either
be allowed to first report to the Thomas Portal and

---

Page 45

~1815
then drive his car to the Linden Portal to meet and accompany the
inspector, or the respondent furnish him with underground
transportation from the Thomas Portal to the Linden Portal. Mr.
Karaszia informed Mr. Delisio that since his discrimination
complaint was still pending, he would have "a problem" with Mr.
Delisio's suggestion, and advised him that he should await the
results of his complaint. Mr. Delisio did not accompany the
inspector on this occasion.

MSHA's Arguments

 MSHA argues that when Mr. Delisio requested to accompany the

MSHA inspector at the Linden Portal, he was engaged in protected
activity. MSHA rejects the respondent's suggestion that Mr.
Delisio need not be given the opportunity to walkaround with the
inspector at this portal, and that the respondent may require Mr.
Delisio to select an alternate walkaround representative. MSHA's
views the respondent's position in this case as an attempt to
force Mr. Delisio to designate an alternative by denying him
access to transportation to the Linden Portal from his usual duty
station at the Thomas Portal. MSHA concludes that the miners'
choice of walkaround representative must be given great
deference, and that Mr. Delisio should be permitted to travel
from portal to portal as the miners' representative for purposes
of MSHA inspections.

 In support of its case, MSHA asserts that the statutory

right of a miner representative to accompany an inspector is
clearly stated in the Act, and the legislative history reflects
the Congressional intent that the scope of a miner's protected
activities, including the right to participate in mine
inspections, be broadly interpreted. In determining what
circumstances may excuse a mine operator from complying with this
right, MSHA emphasizes that the importance that the Act places on
the miner's participation in mine inspections must be considered.
MSHA concludes that the legislative history evinces a clear
intent to have the miner's participation as an important element
in the inspection enforcement scheme. Magma Copper Company v.
Secretary, 645 F.2d 694 (9th Cir.1981), cert. denied, 454 U.S.
940 (1981); Consolidation Coal Company v. Mine Workers, 2 MSHC
1185 (1981).

 MSHA cites a decision by Judge Melick in support of its

argument that miners have the right to designate anyone of their
choosing as their primary representative, despite the existence
of others who could act as their representative. In Truex v.
Consolidation Coal Company, 7 FMSHRC 1401 (September 20, 1985), a
miner, who also served as a member of the mine safety committee,
was designated by the local union

---

Page 46

~1816
president to act as the representative of miners at a section
103(f) post-inspection conference arranged by an MSHA inspector
with mine management. The miner requested permission from mine
management to be allowed to work until the inspector arrived.
Management responded that it was company policy to obtain miners'
representative from the area an inspector visits. The miner then
asked for permission to work in the "Bottom" so that he could be
available for the inspector, but was refused. He then announced
that he was on "union business" because he believed that he would
otherwise have been unable to attend the conference as the
representative of miners. Management thereupon informed him that
since he was on "union business," he would not be permitted to
perform any work that day. The miner performed no "union
business" that day other than attending the conference.

 Upon the conclusion of the conference, which lasted 1 1/2

hours, the miner asked to go to work for the remainder of the
shift, and he was refused. He was paid his regular rate of pay
for only the 1 1/2 hour conference. He then filed a
discrimination complaint seeking compensation for the remaining 6
1/2 hours of the shift he would have worked but for his
assumption of "union business" and the related refusal of
management to allow him to return to work. The mine operator
defended on the ground that under the National Bituminious Coal
Wage Agreement of 1981, once the complaining miner declared
himself to be on "union business" he was no longer under the
operator's control or direction and that it therefore had no
obligation to pay him for his subsequent activities. The operator
further argued that it did not have to accept the miner as a
representative of miners on the day in question but could have
complied with section 103(f) of the Act by giving any one of the
approximately 130 miners then working the opportunity to
accompany the inspector during the conference. In rejecting this
argument, Judge Melick states as follows at 7 FMSHRC 1403Ä1404"

     Section 103(f) of the Act provides, as relevant,
that "a representative authorized by his miners shall be
given an opportunity to accompany the . . .
[inspector] . . . during the physical inspection of
any coal . . . mine . . . for the purpose aiding
such inspection and to participate in pre- or
post-inspection conferences held at the mine."
[Emphasis added.] Since it is not disputed in this case
that the post-inspection conference which Mr. Truex
attended was a conference within the meaning of Section
103(f) of the Act it is

---

Page 47

~1817
clear from the above language that it is the miners and
not the mine operator, who authorize or designate a
representative for the purpose of participating in such
conference. There is no statutory ambiguity on this point
and the plain meaning must prevail. (Emphasis in original).

 MSHA further cites a decision by former Commission Judge

Steffey in a civil penalty case initiated by MSHA for a violation
of section 103(f) of the Act, Leslie Coal Mining Company, 1
FMSHRC 2022, December 9, 1979. In that case, a miner under
suspension by the mine operator reported to the mine for the
purpose of accompanying an inspector on a regular inspection. The
miner was a member of the safety committee, and he was chosen by
the committee to serve as the walkaround during the inspection.
Mine management refused to permit him to accompany the inspector
because he was in suspension status, and instead gathered
together five available working miners who selected someone else
to accompany the inspector. The MSHA inspector had called his
supervisor who apparently took the position that the procedure of
selecting the representative in the absence of any other
available representative was appropriate. However, when the
inspector subsequently returned to his office, his supervisor
instructed him to issue a citation for a violation of section
103(f) upon his next return to the mine. Upon his return to the
mine, the inspector issued the citation charging the mine
operator with a refusal to permit a legally elected
representative authorized by the miners to accompany the
inspector during his inspection of the mine.

 In affirming a violation of section 103(f), Judge Steffey

stated as follows at 1 FMSHRC 2026Ä2027:

*        *        *         *          *         *           *

     It appears to me that the fact the company had
suspended Mr. Stiltner for this twenty-four hour period
does not give the company the right to interfere with
the fact that the representative--that the miners had
selected Mr. Stiltner as their representative on that
specific day.

*        *         *         *          *            *           *

     Consequently, when mine management declined to let Mr.
Stiltner go with the

---

Page 48

~1818
inspectors on May 26, there was not then available another
man to take his place who was still in the same category of a
committeeman that was desirable, because these were the three
men who were to be selected to accompany the inspectors.

     Now, I recognize and I feel that management should have
a right to discipline its miners, but in doing so I
think that this type of situation could be avoided
either by suspending--if they felt Mr. Stiltner was
going to accompany the inspector during a period which
was still within his suspension period--they could
either have anticipated the situation by making it
clear to Mr. Stiltner on May 25 that one of the other
committeemen should come in on the day shift for the
purpose of accompanying the inspectors, or by changing
the suspension period in order to permit Mr. Stiltner
to make this inspection with the inspectors.

     In other words, I believe that the company cannot
interfere with the person that the miners choose to
accompany the inspectors. As long as he is still an
employee and still a member of the safety committee and
is still one of the people who is intended to accompany
the inspectors, I believe the company must let him do
so and must take that into consideration when they are
suspending someone. I do not think it is something they
can work around.

 MSHA argues that Judge Steffey's reasoning is clearly

applicable to Mr. Delisio's situation. MSHA asserts that there is
no dispute among the miners who testified that Mr. Delisio was
the miners' representative on the day in question, and that he
was the representative for the entire mine, not simply for a
certain section. Further, MSHA maintains that the testimony shows
that safety committeemen at the respondent's mine have been
designated as the authorized walkaround representatives for the
entire mine by a vote of the UMW local. MSHA concludes that while
safety committeemen such as Mr. Delisio may designate
replacements should they choose not to act as walkarounds, the
choice to waive the right to walkaround should not be forced upon
them by the respondent, and the respondent cannot "work around"
that

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Page 49

~1819
selection by claiming that other potential representatives exist.

 MSHA maintains that the respondent bears a heavy affirmative

burden of demonstrating what, if any, unusual and exigent
circumstances would justify excusing the failure to comply with
the Act by forcing a miner representative to choose a replacement
to act as the walkaround. MSHA asserts that the respondent's
alleged concerns with transportation do not meet this burden, and
takes the position that section 103(f) imposes on the respondent
an implicit duty to arrange its transportation regulations in a
manner that will ensure the opportunity of the authorized miners'
representative to accompany the inspector. This right would have
little meaning if the respondent could void selection by the
miners of their representative by enforcing transportation rules
which prevent the representative's participation. MSHA concludes
that the plain language of section 103(f) demonstrates that an
authorized representative such as Mr. Delisio is under no duty to
waive his right and select another representative simply because
it would be more convenient for management.

 MSHA maintains that the walkaround rights granted miners

under the statute are broad and far reaching, and the fact that
the respondent would assert the degree of influence it presently
asserts in the selection of the miners' representative is
inconsistent with the purpose of section 103(f). Although Mr.
Delisio may designate another representative for his own reasons,
management cannot require Mr. Delisio, through selective
enforcement of transportation regulations, to authorize another
representative. MSHA therefore concludes that it is clear that
Mr. Delisio is the miners' representative, and that in requesting
permission to accompany the MSHA inspector, he was asserting a
right protected by the Act.

 MSHA concludes that the respondent engaged in discriminatory

activity when it threatened to discipline Mr. Delisio if he acted
on his request to accompany the inspector as the walkaround
representative of miners. MSHA suggests that the discrimination
that is motivated by such protected activity need not be great,
and it cites the legislative history which makes it clear that
threats of discipline for engaging in protected activity, as well
as actual discipline, are prohibited under section 105(c) of the
Act. MSHA also cites a decision by Judge Broderick in Curcio v.
Keystone Coal Mining Corporation, 3 MSHC 2119, 2120 (1985), where
he held that a 1Äday suspension was not a de minimis adverse
action because

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Page 50

~1820
the policy followed by the mine operator could result in
discharge, thereby inhibiting or discouraging miners from
bringing safety complaints to the union or to MSHA.

 On the facts presented in this case, MSHA asserts that Mr.

Delisio was given a verbal warning that he would be disciplined
if he chose to act as a walkaround, and it concludes that such a
warning is a threat of reprisal which is clearly discriminatory
activity prohibited by the Act. In response to the respondent's
contention that the warning was not motivated by any protected
activity, but was issued because Mr. Delisio would not have
reported to his regular work portal, MSHA concludes that this
"circular argument" is not supported by the evidence. MSHA
asserts that mine management has stated that if Mr. Delisio
reported to his portal, he would not have been permitted to
travel to the portal of inspection, and that management's safety
director admitted that the effect of this policy was to prevent
Mr. Delisio from travelling from portal to portal to accompany an
inspector. MSHA concludes that the verbal warning to Mr. Delisio
had the practical effect of preventing his walkaround activities,
and that this is impermissible discrimination under the Act.

 In response to the respondent's assertion that its

transportation policy is not discriminatory because Mr. Delisio
would be able to ride from one portal to another in an MSHA
inspector's car, MSHA believes that this is irrelevant because
the issue concerns the legality of the respondent's conduct, and
such a question cannot be decided by the actions of third
parties, such as MSHA inspectors.

 MSHA maintains that the respondent acted discriminatorily by

giving Mr. Delisio a verbal warning of future discipline if he
did not report to his work portal, and by refusing to allow him
to travel from his work portal to an inspection portal for the
purpose of accompanying an MSHA inspector on his regular
inspection. MSHA states that the respondent should be ordered to
refrain from such discrimination in the future, to post a notice
that it will refrain from such discrimination, and to permit Mr.
Delisio access either through company transportation or personal
transportation to the mine areas where inspections are to be
held. MSHA also seeks an appropriate civil penalty assessment
against the respondent.

Respondent's Arguments

 The respondent states that since the resumption of such

smaller operations in May of 1983, after a long shutdown,

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~1821
including a management change from Consolidation Coal Company to
National Mines Corporation, the respondent has maintained a
policy that miners must report to their assigned portal at the
beginning of their shift and are prohibited from using their
personal vehicles to travel between portals during their working
shifts. The policy regarding personal vehicles was in part
prompted by concerns raised by the Union. The concern was that
the Union did not want the miner to expose himself or his vehicle
to the risk of having an accident, especially involving third
parties, when the personal vehicle was used during his shift.

 Respondent asserts that the policy regarding reporting to

the assigned portal at the beginning of the shift is based on
some obvious, common sense reasons. Reporting to where you work
obviously is the best way to know a miner is in fact at work and
therefore must be accounted for as being underground. In
addition, relying on a miner to call from another portal to
report his presence there rather than reporting to his assigned
portal has some obvious drawbacks. Phone communications between
portals at the busy change-of-shift time are subject to be missed
or not promptly communicated to others. Also, it is difficult to
maintain accurate verification that an employee is where he says
he is by his phone report. An employer does not have to assume
that all employees are completely honest all the time.

 Respondent states that another factor present in this case

is the frequency of inspections. Respondent points out that a
Federal inspector was present at the mine during 391 shifts in
1985. With approximately 250 work days during the year, this
means a Federal inspector appears at the Linden Portal very
frequently. Given Mr. Delisio's status as the only designated
miner on shifts which he is working (he rotates 8Ä4 and 4Ä12
shifts), Mr. Delisio would be accompanying the inspector most
days that he worked the daylight shift, which is the shift when
virtually all of the inspections occur. This frequency means that
most likely on four (4) out of five (5) work days during his
daylight shift, Mr. Delisio would be reporting to the Linden
Portal, calling to the Thomas Portal, and using his personal car
to drive back to the Thomas Portal at the end of the inspection.

 Respondent argues that since Federal inspectors do not give

advance warning to the operator as to when they will appear for
an inspection, it can only be assumed that Mr. Delisio would
either have advance knowledge or simply show up at the Linden
Portal on the assumption that a Federal

---

Page 52

~1822
inspector would appear before the start of the shift. Respondent
assumes that if the Federal inspector did not appear for an
inspection, Mr. Delisio would call the Thomas Portal sometime
soon after the start of the shift and inform management that he
would be reporting late for his job at the Thomas Portal. It also
assumes that management would have made arrangements to replace
Mr. Delisio's fire boss position at Thomas when he did not report
at the beginning of his shift. Respondent asserts that the
practical effect of Mr. Delisio's argument would be that
virtually every daylight shift his fire boss position at the
Thomas Portal would be filled by transferring a miner qualified
as a fire boss from the Linden Portal at the start of every
daylight shift.

 Given the frequency of mine inspections, the respondent

states that its concerns underlying its management policies are
all the more real and relevant, and it points out that there is
no evidence that these concerns underlying the policies in
question are a pretext by management. Further, respondent
advances what it considers to be a simple solution which would
permit Mr. Delisio to accompany the Federal inspector anytime he
desired. Respondent's solution would have the Federal inspector
appear at the Thomas Portal to initiate the inspection. Mr.
Delisio could then declare himself to be the designated miner and
accompanying the Federal inspector in his vehicle anywhere the
Federal inspector wished to travel, including the Linden Portal
or the preparation plant. Respondent recognizes that its
suggested solution is beyond its control because it cannot
require the inspector to initiate inspections at any particular
location. Respondent notes that inspectors have apparently
frequently used their vehicles to transport miners while
conducting their inspections.

 The respondent asserts that the factor which makes this case

factually unique is that it appears unusual that in a mine of
this size, the miners have apparently decided that only a single
miner can act as the designated representative during inspections
occurring on the shifts when that miner is working. Compounding
the problem is the fact that the single designated miner works at
a remote portal.

 The respondent recognizes the fact that the Act prohibits

any interference with the choice of the designated miner or that
miner's ability to accompany an inspector on an inspection.
However, the respondent maintains that its policies requiring all
miners to report to their assigned portal at the start of their
shift and prohibiting the use of private transportation to travel
between locations during the shift

---

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~1823
are neither discriminatory nor do they constitute interference
prohibited by the Act.

 The respondent asserts that the complainant in this case is

in reality requesting that the Act be interpreted to require the
respondent to accomodate his unusul circumstances in his
proclaimed status as the only miner who can act as the designated
miner for inspections. The respondent concludes that the Act does
not require the accomodation necessary to allow Mr. Delisio to
act as the designated miner the way he desires the inspection
process to operate. The respondent concludes further that the
complainant's accomodation request is unworkable, and that this
can be demonstrated by the following analysis of what would take
place if his position were sustained.

 Every day Mr. Delisio works the daylight shift (every other

week), he would drive to the Linden Portal to see if a Federal
inspector was going to conduct an inspection. If the inspector
was there, Mr. Delisio would call the Thomas Portal at the 8:00
a.m. change of shift and report that he would be going on an
inspection. The respondent would then be required to obtain a
replacement for Mr. Delisio's position as fire boss at the Thomas
Portal. The fire boss performs preshift inspections for the next
shift, so it is essential that the position be filled. The
replacement would come from the Linden Portal because of the
absence of qualified employees at the Thomas Portal. This assumes
that all communications work properly, which is obviously not
always the case. Because most inspections end about 12:00 or 1:00
p.m., Mr. Delisio would then drive to the Thomas Portal and
report to his regular job. Because the respondent would not know
exactly when to expect him, the replacement would have to assume
that the replacement would perform the afternoon preshift
inspection. Mr. Delisio would thus have to catch up to his
replacement underground and relieve him. The replacement would
then have to be transported back to the Linden Portal to finish
his shift.

 If the Federal inspector did not happen to be at the Linden

Portal, Mr. Delisio would call the Thomas Portal near the start
of the shift and report that he was going to report at Thomas at
approximately whatever time it takes to drive the six (6) miles
between Linden and Thomas Portals. Mr. Delisio would then drive
to the Thomas Portal and report late for his shift. One or
another of these two senerios would occur every day that Delisio
worked the daylight shift. In addition, Mr. Delisio apparently
engages in Union business a great deal of the time. When he
engages in Union business,

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~1824
he does not always report his whereabouts to the respondent. This
means that on any given day, the respondent would not know where
Mr. Delisio was or whether he was going to be available for his
shift until immediately before or soon after the shift started.

 The respondent concludes that the policies it has attempted

to apply do not violate the Act and that the accomodation and
treatment sought by the complainant in this proceeding is an
unreasonable accomodation not required by the Act.

                   Findings and Conclusions

 In order to establish a prima facie case of discrimination

under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768, (1980), rev'd on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d
Cir.1981); and Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of Jenkins
v. HeclaÄDay Mines Corporation, 6 FMSHRC 1842 (1984). The
operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
way motivated by protected activity. If an operator cannot rebut
the prima facie case in this manner it may nevertheless
affirmatively defend by proving that (1) it was also motivated by
the miner's unprotected activities alone. The operator bears the
burden of proof with regard to the affirmative defense. Haro v.
Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden
of persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir.1983); and
Donovan v. Stafford Construction Company, No. 83Ä1566, D.C.Cir.
(April 20, 1984) (specifically-approving the Commission's
PasulaÄRobinette test). See also NLRB v. Transportation
Management Corporation, ÄÄÄ U.S. ÄÄÄÄ, 76 L.Ed.2d 667 (1983).

 It seems clear to me that Mr. Delisio has a statutory right

pursuant to section 103(f) of the Act to serve as the designated
walkaround representative of the miners, and the parties do not
dispute this fact. The dispute lies in the manner in which Mr.
Delisio seeks to exercise this right. Mr. Delisio has advanced
several alternatives which he believes would permit him to
effectively function as the

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Page 55

~1825
miners' representative, and they are: (1) that he be permitted to
first report to the Linden Portal to ascertain whether an
inspector is there. If he is, Mr. Delisio wishes to accompany the
inspector on his inspection rounds after notifying mine
management at the Thomas Portal of his whereabouts; (2) Mr.
Delisio would report early to his normal work station at the
Thomas Portal, and after confirming the presence of an inspector
at the Linden Portal, he would drive his car to that portal to
accompany the inspector, and then return to work after the
completion of the inspection; (3) instead of using his own car
for transportation to and from the Thomas Portal to the Linden
Portal, the respondent would provide Mr. Delisio with a
self-propelled jeep as a means of travelling underground between
the two portals in question.

 Although recognizing Mr. Delisio's right to act as the

designated miner "first choice" walkaround representative, the
respondent's position is that it need not accomodate Mr. Delisio
on his terms. In defense of its position, the respondent asserts
that Mr. Delisio's suggested "solutions" intrude on management's
right to direct its own workforce, and is contrary to its policy
prohibiting employees to use their personal vehicles while
engaged in mine business on mine property. The respondent's
alternative "solutions" include a suggestion that the inspectors
pick up Mr. Delisio in their government vehicles at the Thomas
Portal, and return him there after the inspection is completed.
Another alternative is that Mr. Delisio designate other miners
who are readily available at the Linden Portal to serve as the
walkaround representative as he has often done in his absence or
unavailability.

 MSHA's position is that the choice of a walkaround

representative lies with the miners. Since Mr. Delisio is the
recognized "first choice" of miners by virtue of his safety
committeeman's position, MSHA takes the position that absent any
unusual or exigent circumstances, mine management may not dictate
who the representative shall be. MSHA apparently views the
respondent's suggestion that other available miners may serve as
the walkaround representative as irrelevant, and concludes that
the respondent's insistence on applying its transportation policy
has effectively interferred with Mr. Delisio's right to serve and
function as the designated miners' representative. MSHA does not
address the respondent's concern that permitting Mr. Delisio to
initially report to work at the Linden Portal before determining
whether he will work at the Thomas Portal or accompany the
inspector at the Linden Portal is an unreasonable intrusion on
management's right to direct the workforce and to insure the
whereabouts of

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~1826
its employees. Rather, MSHA's focus is on the respondent's
transportation policy, and it concludes that section 103(f) of
the Act implicitly requires the respondent to arrange its policy
in such a manner that will insure Mr. Delisio's presence at the
Linden Portal as the walkaround representative whenever he
chooses to exercise that right during an inspection initiated at
that portal. In short, MSHA's position is that Mr. Delisio must
be accomodated, notwithstanding the avowed policy in question.

 In Beaver v. North American Coal Corporation, 2 MSHC 1417,

June 2, 1981, former Commission Judge Cook dismissed a complaint
by a miners' representative alleging that he was discriminated
against because of the refusal of the operator to compensate him
for the time spent as a walkaround on an idle day when he was not
scheduled to work and other scheduled miners were available to
accompany the inspector. Judge Cook found no evidence that the
miner's idle day status permitted the operator to directly or
indirectly participate in any manner in the process of selecting
a walkaround representative, and there was no indication that the
opertor manipulated the miner into an idle day status to
discourage his participation in the inspection.

 In Ronnie R. Ross v. Monterey Coal Company, 3 FMSHRC 1171

(May 1981), the Commission upheld the dismissal of a complaint by
a safety committeeman who alleged that he was discriminated
against when a mine contractor performing work at a mine placed a
letter in his personnel file limiting his inspection activities
to the work areas of the contractor rather than non-contractor
mine areas. In affirming the Judge's dismissal of the complaint,
the Commission found that the record supported a finding that the
letter was issued to protect a legitimate managerial interest in
controlling the activities of its workforce, and did not
establish that the miner's exercise of any statutory rights was
in any way restricted.

 In Local Union 1110, UMWA and Robert L. Carney v.

Consolidation Coal Co., 1 FMSHRC 338 (May 1979), the Commission
held that an operator discriminated against a safety committeeman
for disciplining him for leaving his assigned work area to
contact an inspector concerning a perceived safety hazard,
contrary to the operator's policy that permission by management
was necessary before he could leave. The Commission stated that
"the Company's policy effectively impedes a miner's ability to
contact the Secretary when alleged safety violations or dangers
arise." 1 FMSHRC 341.

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~1827
The Commission found that miner's conduct involved his
statutorily protected right to notify the Secretary of any
alleged violation or danger.

 On appeal of the Truex case, supra, Docket No. WEVA

85Ä151ÄD, the Commission on September 25, 1986, affirmed Judge
Melick's decision, and at 8 FMSHRC 1298, stated the following:

The judge found that "it is the miners and not the mine
operator, who authorize or designate a representative
for the purpose of participating in . . . a
[post-inspection] conference. There is no statutory
ambiguity on this point and the plain meaning must
prevail." 7 FMSHRC at 1404. We agree. The language of
section 103(f), providing that "a representative
authorized by his miners shall be given an opportunity
to accompany the Secretary," unambiguously provides
that miners possess the right to choose their
representative for section 103(f) inspections and pre-
and post-inspection conferences. (Emphasis added). See
also Leslie Coal Mining Co. v. Secretary of Labor, 1
FMSHRC 2022, 2027 (December 1979) (ALJ).

*     *      *       *      *       *       *      *

The purpose of section 103(f) is to enhance miner
understanding and awareness of the health and safety
requirements of the Act. The fact that section 103(f)
protects the miner representative, who is also an
employee of the operator, from a loss in pay in
exercising his section 103(f) rights evidences
Congressional recognition that an operator would be
required to make modifications in work assignments to
permit miner representatives to exercise section 103(f)
rights. Here, Consol was aware that an MSHA inspector
would be arriving for a meeting to review a hearing
conservation plan. Consol was also aware that Truex was
familiar with the plan and had been designated by the
miners to participate as their representative in the
review of the plan. Nevertheless, upon being notified
that Truex was the representative of miners, Olzer
directed Truex to proceed underground with his

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~1828
regular crew. Truex indicated his willingness to do so, but
asked that he be notified when the inspector arrived. This
request was refused. Olzer further refused Truex's request
that he be permitted to work, until the inspector arrived,
in an area that would have allowed him to be readily
available for the meeting. Under these circumstances,
Truex's requests rather than Olzer's responses reflected
the reasonable work adjustments required under section
103(f) to fully effectuate that section's participation
rights. [Emphasis added.]

Protected Activity

 On the facts of this case, it seems clear to me that Mr.

Delisio has established that in his capacity as Chairman of the
Mine Safety Committee, he is the designated first choice of the
miners for purposes of serving as their walkaround representative
during MSHA inspections. It is also clear to me that the
statutory right of a miner representative to accompany an MSHA
inspector during his inspection of the mine is clearly stated in
section 103(f) of the Act, and the legislative history reflects
that this right should be broadly construed. Any undue
interferences with this right by a mine operator constitutes
discrimination prohibited by section 105(c)(1) of the Act.
Although other miners may be available to accompany an MSHA
inspector, the respondent may not unduly or unreasonably
interfere with Mr. Delisio's right to accompany an inspector as
the designated miner representative.

 The respondent does not deny that it issued a verbal warning

to Mr. Delisio on July 30, 1985, informing him that possible
disciplinary action would follow if he did not report to his
normal work station. As a matter of fact, the record establishes
that the warning was conveyed to Mr. Delisio's wife on the
evening of July 29, by telephone call to his home by a member of
mine management. Union President Stipanovich testified that such
verbal warnings are usually followed up by some kind of
discipline, and the respondent has not rebutted this fact.

 The respondent's suggestion that the verbal warning issued

to Mr. Delisio was solely because he would not have reported to
his regular portal if he chose to accompany the inspection as the
designated walkaround representative is not well taken. Given the
facts and background of this case, the respondent was well aware
of the fact that Mr. Delisio was

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~1829
seeking some accomodation by the respondent to enable him to
effectively function as the walkaround representative. The
respondent concedes that it raised the possibility of
disciplinary action against Mr. Delisio because of its policies
of requiring a miner to report to his assigned portal and its
prohibition against miners using their personal automobiles to
travel from portal to portal during their work shifts. Further,
respondent's Safety Manager Dunbar and Mine Manager Baker
candidly conceded that because of its policies, even if Mr.
Delisio were to first report to his home portal, he would still
be prohibited from changing portals for the purpose of
accompanying an inspector during his inspection of the mine.
Thus, the practical effect of management's insistence that Mr.
Delisio first report to his portal, and its application of its
policies, effectively, albeit indirectly, interferred with his
right to serve and function as the walkaround representative, an
activity which is protected by the Act. Thus, I conclude that the
verbal warning, backed up by possible subsequent disciplinary
action, constituted a discriminatory threat or interference
motivated in part by Mr. Delisio's aborted attempt to serve as
the walkaround representative.

The Respondent's Right to Direct its Workforce

 The respondent has the inherent and legitimate right to

control its own workforce, and is free to implement workplace
policies which it believes will permit an efficient and
productive mining operation. If the policies are consistently and
evenhandedly applied, and are not arbitrary or unreasonable in
their application, I would have no basis for concluding that they
are discriminatory. In this case, there is nothing to suggest
that the respondent's policy requiring an employee to report to
his work station is pretexual or is used to circumvent the law.
However, in light of the Commission's decision in the Truex case
and Judge Steffey's decision in Leslie Coal, a mine operator may
have to adjust its work policies on a case-by-case basis in order
to avoid any discriminatory result which may occur by the manner
in which it applies its policy to any given employee factual
situation.

 The facts in this case establish that in his capacity as a

safety committeeman, and by virtue of his union activities, Mr.
Delisio is often away from his job. Mr. Delisio admitted that due
to the press of union business, there have been occasions when he
did not report to his portal without informing management of his
whereabouts, and that this has occurred several times throughout
the year (Tr. 29, 41). He also alluded to some 70 different
instances when he was away from

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~1830
his job on inspections in other mine areas, or on union business
attending conferences at MSHA's office (Tr. 61).

 Mr. Delisio conceded that mine management has the right to

expect him to report to work at his usual work station at the
Thomas Portal. While it may be true that mine management has
never made an issue of his absences, or applied its absentee
policy, the fact remains that management has the right to expect
Mr. Delisio to report for work, or to at least notify management
if he intends to be absent.

 In my view, the facts in this case are different from those

presented in Truex. In Truex, mine management was aware of the
fact that the designated committeeman had arranged a day in
advance to meet with an MSHA inspector for a post-inspection
conference at the mine for the purpose of reviewing a hearing
conservation plan. The committeeman's requests to be allowed to
work until the inspector arrived, or to be allowed to work in a
particular mine area so that he would be readily available to
meet with the inspector were refused, and the basis for the
refusal was management's policy of obtaining miners'
representative from the area an inspector visits. Further, once
refused the right to be available for the inspector, the
committeeman was forced to go on "union business" status because
he believed he would otherwise have been unable to attend the
post-inspection conference, and management refused to allow him
to return to work after the conference was over and refused to
compensate him for the remaining 6 1/4 hours of the shift he
would have worked but for his assumption of "union business" and
the related refusal to allow him to return to work.

 Unlike Truex, which appears to have emanated from an

isolated instance of refusing to accomodate a designated miners'
representative who had a pre-arranged meeting with an inspector
which was known to management, the respondent here has no policy
restricting miners' representatives to mine areas where an
inspection is taking place. More importantly, Mr. Delisio's
situation does not involve an isolated instance. Mr. Delisio
wants to regularly report to work at a portal which is 6 miles
from his usual place of work on a day-to-day basis during his day
shift every other week to ascertain whether an inspector is
present so that he may accompany him. If an inspector is there,
Mr. Delisio wishes to telephone his foreman to advise him that he
will not report to work. If an inspector is not present, Mr.
Delisio would report late for work. Since Mr. Delisio's job as
mine examiner requires him to preshift his portal, mine
management would be placed in the untenable position of arranging
and rearranging for a

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~1831
suitable replacement to be brought in from another portal to do
Mr. Delisio's job frequently and unpredictably.

 I cannot conclude that the respondent's policy requiring Mr.

Delisio to report to his assigned portal at the beginning of his
work shift is arbitrary or unreasonable, and the respondent's
arguments in this regard are well taken. Given the fact that Mr.
Delisio is the only available qualified mine examiner on the day
shift at the Thomas Portal, and the frequency of inspections
which have occurred at the mine, I find nothing unreasonable or
discriminatory in the application of this reporting policy. From
a safety standpoint, the respondent has a duty and obligation to
account for all of its employees while they are on the job. From
a management point of view, and in order to fulfull its
obligations in this regard, the respondent should be free to
manage its work-force, and the scenarios presented by the
respondent with respect to what will no doubt occur in terms of
employee disruptions and replacements between portals in the
event Mr. Delisio is allowed to decide when and where to
initially report for work are legitimate and real concerns,
rather than pretexts to preclude Mr. Delisio from functioning as
the designated representative of miners.

Respondent's Private Vehicle Policy

 During the course of the hearing in response to Mr.

Delisio's "suggestion" that he be permitted to drive his personal
vehicle between portals for the purpose of serving as the miners'
walkaround representative, the respondent took the position that
it does not wish to expose itself to liability or risks to Mr.
Delisio or other miners while driving private automobiles on
company property while in the course of company business.
Respondent's counsel asserts that this concern was voiced by the
miners themselves several years ago, and reiterated over time.
Counsel pointed out that this concern, both by the miners, and
mine management, came about as a result of miners being alerted
to the potential liability to third parties, with resulting
lawsuits, in the event of their involvement in accidents on mine
property while using their private automobiles in the course of
their employment (Tr. 10).

 Respondent maintains that it has offered a reasonable

resolution by suggesting that Mr. Delisio be picked up at his
regular Thomas Portal duty station by the inspector conducting
the inspection, and be taken along with the inspector during his
inspection. Respondent maintains that it has been customary for
an inspector to transport miners in their

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Government vehicles while conducting inspections, that it has
occurred in the past, and the respondent would prefer this
procedure to continue (Tr. 11).

 Respondent argues that it does not believe that it has

discriminated against Mr. Delisio by declining to provide him
with company surface or underground transportation from his
regular duty portal to another portal where an inspector decides
to initiate his inspection, or to permit him to drive his own
automobile. With regard to underground travel between the two
portals, respondent asserts that while a company jeep is normally
available for Mr. Delisio's use while performing his fire boss
duties at the Thomas Portal, the availability of underground
transportation is determined by production schedules and the
necessities of the operation at that portal. Respondent does not
believe that it is obligated to provide or schedule "special
trips" for Mr. Delisio or any other miner for the purpose of
transporting them underground from portal to portal. Making an
exception for Mr. Delisio would result in the unavailability of a
jeep at the Thomas Portal for safety inspections at that
location, and would require the company to replace the jeep with
another one while it is gone (Tr. 12).

 During the hearing, MSHA agreed that the only accomodation

that the respondent seems willing to make in this case is to
suggest that the Federal mine inspectors pick up Mr. Delisio in
their Government automobile at the Thomas Portal, his regular
duty station, and transport him to the Linden Portal, where
regular inspections normally begin or end, or transport him to
other mine areas where an inspection may take place. MSHA asserts
that the Linden Portal is more accessible to everyone in the
first instance, and that the respondent's suggestion is totally
unacceptable, and would entail a special trip just to pick up Mr.
Delisio, would be time consuming in instances where time may be
of the essence during an inspection, and would conflict with
Government regulations regulating the official use of Government
vehicles (Tr. 15Ä16).

 MSHA's position is that if the respondent is unwilling to

permit Mr. Delisio to initially report to the Linden Portal to
determine whether he will be accompanying an inspector as to the
union walkaround, and insists that he must first report to the
Thomas Portal, it must accomodate Mr. Delisio by permitting him
to use his own automobile to drive to the Linden Portal, or
provide him with company transportation. MSHA argues that the
respondent cannot have it both ways by taking the position that
company policy dictates against the

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use of private automobiles on mine property, and that the use of
a company vehicle for Mr. Delisio's transportation would
effectively deprive the company of the use of that vehicle at the
Thomas Portal where it is needed. MSHA maintains that this
position by the respondent is discriminatory because there have
been other occasions where other miners were permitted the use of
their private vehicles on company property, and that on other
occasions miners do not report to their regular portal as
planned, and no action has been taken against them.

 MSHA concludes that the respondent's position can only be

viewed as an action against Mr. Delisio for attempting to
exercising his rights as the walkaround representative of the
miners. Coupled with the respondent's suggestion that other
miners working at the Linden Portal can accompany the Federal
inspectors as miner walkarounds, MSHA concludes that this is an
attempt by the respondent to choose who the miner representative
shall be for purposes of inspection walkarounds, and that this is
prohibited by the Act (Tr. 17Ä18). MSHA further concludes that on
the facts of this case, the respondent's failure to accomodate
Mr. Delisio by permitting him to use his own vehicle, or to
provide him with company transportation, interferes with his
rights as the miner walkaround representative (Tr. 6).

 I take note of the fact that Mr. Delisio's complaint makes

no mention of the respondent's policy with respect to the use of
private vehicles by miners. Respondent's safety manager Dunbar
testified that prior to July 30, 1985, this was never raised as
an issue by Mr. Delisio, and MSHA special investigator Chambers
confirmed that the question concerning the use of private
vehicles was not raised during his investigation of the
complaint. MSHA's counsel conceded that she first learned about
the transportation policy on the morning of the commencement of
the hearing (Tr. 191). Although Mr. Delisio raised the question
of the use of his own car to travel from portal to portal in
February, 1986, when he again requested permission to accompany
the inspector, this came well after the filing of the complaint,
and management at that time communicated no decision to Mr.
Delisio because his case was still in litigation. Respondent's
safety manager Dunbar did suggest, however, that Mr. Delisio
arrange to have the inspector pick him up at the Thomas Portal,
and that if this were done, there would be no problem (Tr. 255).

 Respondent's safety manager Dunbar conceded that the

respondent will not permit Mr. Delisio to use his private
automobile as a means of travel between the Thomas and Linden

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Portals for the purpose of exercising his walkaround rights as
the miners' designated representative, and he stated two reasons
for this position. The first reason is that company policy
precludes the use of private automobiles by miners, and the
second reason is that respondent believes there are other miners
available at the Linden Portal to serve as the walkaround
representative, and they have done so in the past. The respondent
further concedes that it raised the possibility of disciplinary
action against Mr. Delisio because of its reporting and
transportation policies which it enforces at the mine
(respondent's proposed finding #6). As stated earlier, the thrust
of MSHA's arguments in support of its case is the assertion and
suggestion that the application of the travel policy in Mr.
Delisio's situation has interferred with his right to accompany
an inspector as the duly designated miners' representative. Under
these circumstances, the issue concerning the travel policy in
question must be addressed.

 The respondent produced no evidence to establish that its

ban on the use of private automobiles by miners is in writing or
absolute, nor has it established any definitive ground rules for
the application of the policy. On the facts of this case, it
seems clear to me that the policy is not consistently applied,
and respondent's safety manager Dunbar candidly admitted that
there is no absolute ban on the use of private automobiles by
miners, and that the use of automobiles by miners is limited to
the extent possible. Mr. Dunbar also admitted that there are
times when miners like to drive their automobiles for their own
convenience.

 The credible testimony in this case establishes that safety

committeemen have in the past been permitted to drive their own
automobiles from portal to portal for the purpose of accompanying
inspectors on their inspection rounds. While it may be true that
the union has in the past voiced its objections to the use of
private vehicles by miners for travelling between portals, some
of the objections apparently resulted from the practice of
transporting a number of miners in the back of pickup trucks, or
transporting too many miners in one vehicle. There is nothing to
suggest that the union intended to preclude committeemen from
using their automobiles to perform their duly recognized
walkaround duties.

 The credible testimony also establishes that miners have

been permitted to use their private vehicles for their own
convenience while attending training sessions held at the mine.
One miner (Jim Mills), who reports to work early and is
responsible for the mine fans, has been permitted to use

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his private vehicle while checking the fans before he actually
reports to his portal. A number of replacement locomotive
operators who normally work at the Linden Portal and who may be
needed at the Thomas Portal to operate locomotives are permitted
to drive their automobiles to the Thomas Portal from the Linden
Portal for their own convenience because they shower there and
leave directly for home. Consequently, it seems clear to me that
the respondent has made exceptions with respect to the use of
private vehicles, and it has done so for the convenience of the
miners and notwithstanding any liability considerations. Under
the circumstances, I conclude that the respondent must also
accomodate Mr. Delisio and permit him an opportunity to use his
automobile to travel from the Thomas Portal to the Linden Portal
for the purpose of accompanying an MSHA inspector as the duly
recognized miners' walkaround representative. In the alternative,
I further conclude that the respondent must make a reasonable
accomodation to Mr. Delisio by providing him with any available
underground transportation between the Thomas and Linden Portals
for purposes of accompanying inspectors as the walkaround
representative of miners. If none is readily available, then Mr.
Delisio should be permitted to drive his own automobile between
portals.

 The credible testimony in this case establishes that by

virtue of his position as the chairman of the safety committee,
Mr. Delisio is the designated "first choice" walkaround
representative, and that other miners who have served as
walkarounds in his absence are not the "first choice." Further,
respondent concedes that this is the case (respondent's
posthearing proposed findings #8 and #9). Since Mr. Delisio is
the "first choice," respondent may not obstruct or impede his
right to serve through an unreasonable application of an
inconsistent and somewhat nebulous private vehicle policy. By
precluding Mr. Delisio from using his private automobile as a
means of travel between portals for purposes of exercising his
right as the duly designated miners' walkaround representative,
the respondent has effectively prevented Mr. Delisio from
exercising a right protected by the Act, and has forced him to
designate someone other than the miners' "first choice" to
perform this function. The result of the respondent's private
automobile policy, as applied to Mr. Delisio, is an unreasonable
and unwarranted interference with his right to serve as the duly
designated representative during his shift.

 On the facts of this case, and in light of the foregoing

findings and conclusions, I conclude and find that the
application of respondent's purported policy of prohibiting the
use of private automobiles by miners to Mr. Delisio, has

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resulted in discrimination prohibited by section 105(c) of the
Act. Given the fact that the respondent has conceded that after
first reporting to his regular job at the Thomas Portal, Mr.
Delisio would not then be permitted to drive his private
automobile to the Linden Portal to accompany an inspector, I
further conclude and find that the verbal warning given to Mr.
Delisio constituted a discriminatory interference with his right
to serve as the walkaround representative. Given these
circumstances, I conclude that MSHA has established a violation
of section 105(c) by a preponderance of the credible evidence and
testimony adduced in this case, and the complaint is therefore
AFFIRMED.

Respondent's Request for Dismissal of the Complaint as
Untimely

 In its answer of March 14, 1986, to the complaint filed by

MSHA in this case, the respondent asserted that MSHA's complaint
was untimely filed. In its posthearing arguments, respondent
reasserts this argument and seeks dismissal of the case. The
respondent states that Mr. Delisio filed his complaint with MSHA
on July 30, 1985, and that MSHA did not file its complaint with
the Commission until February 10, 1986, more than the 90Ädays
required by section 105(c)(3) of the Act.

 After due consideration of the respondent's arguments

concerning the late-filing of the complaint, they are rejected,
and the respondent's request for a dismissal of the complaint on
this ground IS DENIED. It has been held that the filing deadlines
found in section 105(c) of the Act are not jurisdictional in
nature, Christian v. South Hopkins Coal Company, 1 FMSHRC 126,
134Ä136 (1979); Bennett v. Kaiser Aluminum & Chemical
Corporation, 3 FMSHRC 1539 (1981). Further, as remedial
legislation, the Act should be liberally construed so as not to
unduly prejudice a miner for MSHA's delay in filing its
complaint. In this case, I find no protracted delay on MSHA's
part, nor can I conclude that the delay has prejudiced the
respondent in its ability to present its defense.

Civil Penalty Assessment

 MSHA seeks a civil penalty assessment in the amount of

$1,200 for the respondent's violation of section 105(c) of the
Act, and has submitted information concerning the six statutory
criteria for penalty assessments found in section 110(i) of the
Act.

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On the facts of this case, I do not consider the violation to
be egregious. I believe that the respondent's initial verbal warning
of possible disciplinary action against Mr. Delisio was made out
of a good faith belief by the respondent that it had an inherent
right to expect its employees to report to their normal duty
station. With regard to the subsequent refusal to permit Mr.
Delisio to accompany an inspector, this came after the case was
in litigation, and I cannot conclude that given the posture of
the case at that point in time, that the respondent acted
unreasonably. While it is true that the application of the
respondent's transportation policy effectively prevented Mr.
Delisio from serving as a walkaround representative, there is no
evidence of any pretexual motive on the respondent's part, nor is
there any evidence that the respondent has directly or indirectly
interferred with Mr. Delisio's activities on behalf of his union.
To the contrary, the record here establishes that the respondent
has been more than tolerant of Mr. Delisio with respect to his
union activities in his capacity as a committeeman, and mine
management has not interferred with, or otherwise impeded Mr.
Delisio's activities in this regard.

 MSHA's proposed civil penalty assessment of $1,200, IS

REJECTED. In the circumstances presented in this case, I conclude
that a civil penalty assessment of $100 is reasonable and
appropriate.

                            ORDER

 In view of the foregoing findings and conclusions, IT IS

ORDERED THAT:

     1. The respondent permit the complainant Joseph Delisio
access to the Linden Portal during his work shift for
purposes of exercising his walkaround rights to
accompany MSHA mine inspectors on their inspection
rounds by permitting him to drive his private
automobile from his usual reporting place at the Thomas
Portal to the Linden Portal for this purpose, or in the
alternative, to provide him with underground company
transportation between portals for this purpose.

     2. The respondent expunge from its personnel or other
records any references to the verbal warning given to
Mr. Delisio on July 30, 1985, with respect to his
request to

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accompany an MSHA inspector on that day as the miners'
walkaround representative.

     3. The respondent post a copy of this decision on the
mine bulletin board or other location readily available
or accessible to miners.

     4. The respondent remit to MSHA a civil penalty
assessment in the amount of $100 for its violation of
section 105(c) of the Act.

 Full compliance with this Order is to be made by the

respondent within thirty (30) days of the date of this decision.

                       George A. Koutras
                       Administrative Law Judge