Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources operated underground coal mines in Alabama and required safety committee members to undergo random drug testing. Judge James A. Broderick found that the company's program was facially discriminatory because it singled out elected safety committee members and that Michael L. Price and Joe John Vacha were discharged after they were unable to provide urine samples. He ordered reinstatement, back wages, expungement of the discharges, and an end to enforcement of the testing provision against safety committee personnel, while reserving the amount of back pay for a supplemental order. The Commission later reversed the facial-discrimination finding and remanded other issues for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c) and § 813(g)(1)
• Outcome: The ALJ found facial discrimination, ordered reinstatement and corrective relief, and reserved the amount of back pay for a supplemental order. The Commission later reversed and remanded in part.
• Key point: The ALJ held that a drug-testing program could violate the Mine Act by undermining the independence of elected mine safety committee members.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. JIM WALTER RESOURCES
DDATE:
19880713
TTEXT:

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

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 87-128-D
ON BEHALF OF
MICHAEL L. PRICE AND JOE No. 4 Mine
JOHN VACHA,
COMPLAINANTS
v.

JIM WALTER RESOURCES, INC.,
RESPONDENT
AND
UNITED MINE WORKERS OF
AMERICA (UMWA),
INTERVENOR

                               DECISION

Appearances: Frederick W. Moncrief, Esq., and Thomas A. Mascolino,
Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary of Labor and
Complainants; Robert K. Spotswood, Esq., and John W.
Hargrove, Esq., Bradley, Arant, Rose & White, Birmingham,
Alabama, for Respondent; Robert H. Stropp, Esq., and Patrick
Nakamura, Esq., Stropp & Nakamura,
Birmingham, Alabama, for Intervenor, and Complainants.

Before: Judge Broderick

STATEMENT OF THE CASE

 On May 14, 1987, the Secretary of Labor (Secretary) filed an

application for an order requiring Respondent Jim Walter
Resources, Inc. (JWR) to temporarily reinstate applicants Michael
L. Price and Joe John Vacha to the positions from which they were
discharged on March 2, 1987. At the request of JWR, I held a
hearing on the application on June 29, 1987, following which I
ordered JWR to reinstate Price and Vacha to the positions from
which they were discharged and to pay back wages and other
benefits retroactive to June 8, 1987. The order was based on my
determination that the complaints of Price and Vacha to the
Secretary were not frivolously brought. My order was affirmed by

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the Commission, Secretary/Price and Vacha v. Jim Walter
Resources, Inc., 9 FMSHRC 1305 (1987), and is presently on appeal
to the United States Court of Appeals for the Eleventh Circuit.

 The Secretary filed a Complaint of discrimination on behalf

of Price and Vacha with the Commission on September 2, 1987. JWR
filed its Answer on September 25, 1987. There has been
substantial pretrial discovery, including depositions and
interrogatories by all parties. The United Mine Workers of
America (UMWA) intervened in the proceeding and took part in the
discovery and the hearing, as it did in the hearing on the
application for temporary reinstatement. Pursuant to notice, the
case was heard on the merits on March 21 through March 24, 1988,
in Birmingham, Alabama. The Secretary called Richard Brooks as an
adverse witness and William Leow, Donald Pennington, Dan Green,
William Glover, Kenneth Smith, Robert Galasso, Jerry Whitley,
Earl Odum, Danny Joe Nelson, Barry Wood, Dwight Cagle, Herbert
Jefferson, John Parrot, Jerry Grogan, Jeff Wilkes, John McVernon,
Allen Robbins, Steve Anderson, and Pearlie Sue Gray as its
witnesses. JWR called Christopher Frings, Michael Hall, Robert
Hendricks, William Beemer, Dr. G.M. Shehi, Richard Brooks and
Michael Johnson. Brooks Rouse was called as a witness by UMWA.
The transcript of the Temporary Reinstatement hearing and the
exhibits introduced at that hearing were admitted in this
proceeding as Joint Exhibits. The transcript includes the
testimony of Joe John Vacha, Michael L. Price, Thomas F. Wilson,
Richard Brooks, Rayford Kelly, William Carr, Richard Donnelly and
Wyatt Andrews. The exhibits include the opinion of arbitrator
Samuel J. Nicholas dated January 29, 1987, on the class action
grievance filed by UMWA concerning the drug testing program. They
also include the transcript of the hearing before arbitrator
Nicholas, March 18, 1987, on the grievance of Price and Vacha, as
well as arbitrator Nicholas' opinion of April 13, 1987. All
parties have filed post hearing briefs. The parties have agreed
that should I find a violation of section 105(c) of the Federal
Mine Safety and Health Act (the Act), they will attempt to agree
on the appropriate monetary remedies. I have considered the
entire record and the contentions of the parties, on the bases of
which I make the following decision.

FINDINGS OF FACT

 JWR MINING DIVISION

 JWR operates five underground coal mines, a training

facility and a central shop, all located in the State of Alabama.
It employs over 2800 people, including 2200 hourly rated workers.
The hourly employees are members of the UMWA; each mine has a
local union, and all are affiliated with Distrct 20 UMWA. The

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UMWA and JWR are signatories to a collective bargaining agreement
(in effect through January 31, 1988), which governs labor
relations in the JWR mines. It covers, among other things, the
establishment and the rights and duties of a Mine Health and
Safety Committee at each mine. It provides for discipline and
discharge of employees for just cause.

   JWR'S SUBSTANCE ABUSE AND REHABILITATION & CONTROL PROGRAM

 JWR perceived that it had a substance and alcohol abuse

problem among its employees because a number of hourly and
salaried employees had been discharged or had resigned in lieu of
discharge because of alcohol or drug abuse. In addition JWR had
what it considered a relatively high accident rate and a high
rate of absenteeism, both of which it attributed in part to a
drug and alcohol problem among its employees. It further believed
that it had high and escalating health care and workers'
compensation costs, which it believed were related in part to
substance and alcohol abuse.

 In April 1986, Mike Gossett, President, District 20, UMWA,

contacted Richard Brooks, Vice President of Industrial Relations,
JWR, requesting a meeting to discuss the problem of employee drug
use in the JWR mines. A meeting was held in which Brooks and
Eddie Roberson, JWR Labor Relations Manager, represented JWR, and
Gossett and Gene Hyche, UMWA District Representative, represented
UMWA. All the participants agreed that a problem of drug and
alcohol abuse existed at JWR mines. They also agreed that a joint
union-management program would be preferable to a company imposed
work rule. Brooks proposed that the program include employee
testing, education and rehabilitation and that it include
families of employees. He also emphasized the importance of it
being confidential. Brooks prepared a draft of a proposed program
and gave a copy to the union representatives in late July 1986.
Some time later Brooks talked to Tommy Buchanan, International
Executive Board Member for District 20 of the UMWA. Buchanan told
him he had sent his copy of the program "to Washington." Later
Buchanan told Brooks that the UMWA and MSHA were working on a
joint program in Washington. Brooks concluded that the UMWA was
not interested in agreeing on a substance abuse program at JWR.
He thereupon modified the draft of the program and prepared it as
a company work rule.

 At a companywide communications meeting on September 24,

1986, attended by UMWA District representatives and all the local
union presidents, copies of the JWR substance abuse program were
distributed. None of the union representatives indicated any
problem with the program. On October 16 and 17, 1986, JWR called
a series of communications meetings at each mining location
during which the program was explained, and the union

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representatives were advised that it would take effect January 1,
1987. In late October or early November 1986, a notice with a
copy of the plan was posted at each mine location, and each
employee received a copy of the plan with his or her paycheck. In
early January 1987, a special issue of the JWR magazine,
"Workings" was entirely devoted to the drug abuse program.

 The Program is entitled Substance Abuse Rehabilitation and

Control Program. It covers five typewritten pages and is divided
into four main topics: Employee Testing, Disciplinary Action,
Rehabilitation, and Education. It applies to all hourly and
salaried employees of JWR's mining division. The testing
provision is directed first to employees demonstrating a
reasonable cause for testing, including (a) anyone involved in
two or more mine accidents within a 12 month period, or involved
in one accident which injures another employee or causes property
damage; (b) an "irregular worker"; (c) an employee who comes
under an attendance control policy; (d) an employee on company
property who appears to be under the influence of drugs or
alcohol; (e) an employee who is indicted, arrested or convicted
under state or federal drug laws. Any employee who enters
rehabilitation and fails to cooperate, or tests positive during
the rehabilitation program shall be removed from rehabilitation,
and will be subject to random testing for one year. An employee
may voluntarily come under the program. Laid off employees shall
be tested as a part of the recall physical examination. Section
II.E. of the program provides as follows:

      Any employee whose duties, whether by job title or by
      reason of elected office, involve safety, shall be
      subject to random testing for substance abuse up to
      four times per calendar year. Physicals for hoistmen
      shall also include testing for substance abuse. All
      provisions of the program shall apply to employees in
      this category.

 Brooks intended that the phrase "employee[s] whose duties

. . . by job title . . . involve safety" encompassed safety
inspectors, dust and noise control supervisors, and section
foremen. These are all salaried positions. The only hourly
employees covered are union safety committeemen who come under
the phrase "employee[s] whose duties . . . by reason of elected
office . . . involve safety."

 The UMWA protested the unilateral implementation of the drug

abuse program. It filed a class action grievance under the
contract, and an unfair labor practice charge with the National
Labor Relations Board (NLRB). Initially, the NLRB deferred to the
arbitrator appointed under the collective bargaining contract.
The arbitrator issued a decision on January 29, 1987, based on a

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settlement reached by the parties: the program was recognized by
the Union, but the Union disagreed with it; the Union reserved
the right to file grievances on behalf of employees made subject
to the program. Thereafter, however, the UMWA filed suit to set
aside the January 29 award and subsequent individual awards
(including an award denying the grievances of Price and Vacha)
involving the program. The District Court granted summary
judgment in favor of JWR, and the case is presently pending
before the Court of Appeals. Apparently, the General Counsel of
the NLRB has reconsidered her deferral to the arbitrator, and has
instituted or contemplates instituting an unfair labor practice
proceeding involving the substance abuse program.

IMPLEMENTATION OF THE PROGRAM

 In late February 1987, Richard Brooks decided to randomly

test the safety-related employees in all the JWR Mines under
paragraph II.E. of the Program on March 2, 1987. He notified the
industrial relations supervisors of the decision and "[swore]
them to secrecy." The industrial relations supervisors were
directed to test all employees covered by paragraph II.E. on that
date. For various reasons, however, the urine samples were taken
from the affected employees on March 2, 3, 6 and 9, and on April

8. Prior to March 2, there was considerable discussion and joking
   about the program among union employees and management officials.
   In the subject mine, much of the joking was directed at Price. In
   November 1986, Price told Wyatt Andrews, the mine safety
   inspector and Bob Hendricks, associate safety inspector that he
   had difficulty urinating in front of others. Hendricks laughed
   and made a vulgar remark to Price. In late November or early
   December a urine specimen bottle was exhibited on Wyatt Andrews'
   desk with a label on it reading "Mike Price UMWA." Andrews
   laughed when Price saw the bottle. It remained in the safety
   office for at least two days before Rayford Kelly directed that
   it be removed. Andrews and another safety inspector had on two
   other occasions jokingly thrust an empty CSE cannister and an
   empty coca cola can toward Price and Vacha telling them that they
   were practice piss cups. Later a styrofoam cup with Price's name
   and the notation "practice cup" written on it was displayed in
   the safety office. All these incidents took place prior to March
   March 2, 1987.

   Price and Vacha worked on the day shift--7:00 a.m. to 3:00
   p.m. At about 8:00 a.m. on March 2, Price was told that he would
   have to submit a urine sample. Vacha was informed at about 11:30
   a.m. At the end of their shift, they went to the office of the
   Industrial Relations Supervisor of the No. 4 Mine, Rayford Kelly.
   Urine samples were taken at the No. 4 Mine from four management
   safety personnel and the owl shift safety committeeman. The

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samples were taken under the supervision of Andrews and
Hendricks, rather than Kelly. In the other mines, the samples
were taken under the direct supervision of the industrial
relations supervisors.

 Price and Vacha signed the release form and submitted union

prepared protest forms in Kelly's office. They asked whether they
would be paid for the time spent in the office and were informed
that they would not. Along with the other safety committeemen,
they filed grievances for this, and were ultimately paid for one
hour. Vacha then went to the bathroom with Andrews. He told
Andrews that he was unable to urinate. He was taking a physician
prescribed medication, lomotil, for a nervous stomach related to
personal problems. One possible adverse reaction to this
medication is urinary retention. Vacha tried on a number of
subsequent occasions but was unable to provide a urinary
specimen. He was clearly nervous and upset. Price also was unable
to urinate. He offered to go into the bathroom naked if he could
go alone, but this offer was refused. He tried a number of times
to provide the sample but was unable to do so. Water, coffee and
soft drinks were made available, but the requested urine samples
were not forthcoming. At about 7:00 p.m. (4 hours after
completion of their shift), Kelly told Price and Vacha that they
would be given 30 minutes to provide a sample or be disciplined.
Vacha replied that "you [or they] can't make me piss." Price
asked whether they could return the next morning to give the
samples, but this was refused. At approximately 7:20 p.m., they
were given 5 minutes to produce a specimen or be discharged. At
7:30 p.m., they were each given formal five day suspensions with
intent to discharge because of insubordinate conduct. The
following morning, March 3, 1987, Price and Vacha had drug screen
tests at the Emergicare Center (JWR's contract physicians) and at
the Longview Hospital, respectively. The results, which were
negative, were submitted to JWR.

 Many union members were upset over the drug testing program,

and a meeting took place prior to March 2, involving local union
presidents, District 20 officials and safety committeemen from
the No. 5 Mine. At this meeting it was decided that if urine
specimens were requested, the committeemen should ask why, notify
management that the specimens were given under protest, and
provide the specimens if they could. There is no evidence that
Price and Vacha were at this meeting. However, it is clear that
they and most of the other safety committeemen objected to the
implementation of the program, and believed that it was
discriminatory. They were also aware that if they failed to
furnish a specimen, they could be discharged.

 Price and Vacha filed grievances over their discharge, and

the grievances were taken to arbitration under the collective

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bargaining contract. The arbitrator, Samuel J. Nicholas held a
hearing on March 18, 1987. JWR called Rayford Kelly and Richard
Brooks as witnesses. The Union called William Brooks, Dwight
Cagle, Joseph O'Quinn, Dennis Gilbert, Edward Smith, Joseph
Vacha, Michael Price and Dr. Daniel Doleys. On March 19, 1987,
the arbitrator announced his decision denying the grievances on
the ground that the company had justifiable cause under the
contract for the discharges. He issued a written opinion on April
13, 1987. In his opinion he concluded that Price and Vacha could
have given urine samples but "chose not to comply with
management's request." He further concluded that there was no
evidence of disparate treatment or discrimination against Price
and Vacha. He relied on the fact that 43 other similarly situated
employees "openly complied with management's request."

 At the other JWR mines, some of the safety committeemen

tested were allowed to produce urine specimens without an
observer being present; in other cases, the observer was
immediately outside the bathroom; some produced the specimen
inside a closed toilet stall. In one mine, a committeeman who was
unable to produce a specimen when requested was permitted to
return at the end of his shift to do so. In another instance a
miner being tested for cause (he had an accident), was permitted
to return thefollowing day to give a urine sample. However,
although the company had already notified the miner that it
intended to discharge him, he was reinstated the next day and
apparently was never actually tested.

SAFETY COMMITTEES

 Article II, Section (d) of the Contract provides that each

mine shall have a Mine Health and Safety Committee made up of
miners "who are qualified by mining experience and training and
selected by the local union." The committee is given the right to
inspect any portion of the mine and report any dangerous
conditions to management. If the committee believes that an
imminent danger exists and recommends that the employer remove
all employees from the involved area, the employer must comply
with the recommendation.

 Under the Act, the safety committeemen are considered

representatives of the miners. They may request MSHA inspections
under section 103(g), and normally accompany the MSHA inspector
during his physical inspections of the mine.

 At the JWR mines, the safety committeemen are elected.

Committeemen choose their chairman, and select alternate safety
committee members.

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Price and Vacha and their safety committee had the reputation of
being safety activists. In six years on the committee, Vacha has
filed from 75 to 100 Section 103(g) complaints, and has
participated in 50 to 75 safety grievances. Price has annually
filed approximately 25 Section 103(g) complaints and handled
approximately 70 safety grievances. Vacha estimated that he spent
approximately 50 percent of his working time on safety committee
duties; he was classified as a miner operator, but actually
worked on self-contained rescuers, under Wyatt Andrews of the
safety department. Price also devoted about 50 percent of his
time to safety committee work. He was classified as a long wall
helper. On one occasion while working on the mining section,
Vacha was removed from his continuous miner operator job because
he was thought to be shutting down his machine because of face
methane. On another occasion in June 1986, Price was told by
JWR's vice-president of operations, Buck Piper, that if he wanted
to keep his job he "had better back off on safety." Price was
discharged in June or July 1986 "for performing [his] job as a
safety committeeman," but was reinstated after arbitration. He
was reprimanded in 1983 and in 1986, also while performing his
duties as a safety committeeman. JWR has blamed the safety
committee for causing the mine to be closed on different
occasions, and for filing a large number of 103(g) complaints and
safety grievances. After the discharge of Price and Vacha on
March 2, and a layoff affecting owl shift committeeman Ed Smith,
there were as of June 29, 1987, no elected safety committeemen at
the JWR No. 4 Mine.

INDUSTRY DRUG ABUSE PROGRAMS

 On September 15, 1986, the President of the United States

issued an Executive Order, entitled DrugÄFree Federal Workplace,
in which he stated that "[D]rug use is having serious adverse
effects upon a significant proportion of the national work force
and results in billions of dollars of lost productivity each
year." The Senate Commerce Committee in Senate Report 100Ä43,
100th Cong. 1st Sess., to accompany S. 1041 filed April 10, 1987,
found that "Drug and alcohol abuse has become an increasing
problem in the workplace. Substance abuse leads to impaired
memory, lethargy, reduced coordination, and a whole series of
changes in heart, brain, and lung functions. These symptoms in
workers have resulted in lost productivity for American
businesses of as much as $100 billion a year, with significant
increases in employee accident rates, health care costs, and
absenteeism." A recent issue of the Duquesne Law Review has an
exhaustive comment on compulsory drug screening in employment. 25
Duquesne Law Rev. 597 (1987). The problem is apparent; a solution
which recognizes the union's interest and the rights to privacy
and personal dignity of the employees is more difficult.

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JWR and the UMWA officials involved with the JWR mines agreed
that a significant problem of substance abuse existed among the
employees in the JWR mines. They agreed that the problem should
be addressed by a joint CompanyÄUnion program. They agreed that
the program should include education, testing and rehabilitation.
The UMWA believed that the program should be subject to
collective bargaining. JWR, however, after some cursory
discussions with different union officials, concluded that the
UMWA was not interested in a joint program, and it unilaterally
promulgated the plan involved in this proceeding. Prior to that
time, the UMWA had not objected to, nor had it agreed to the
provision which became Section II.E. in the program. Section
II.E. (and much of the rest of the program) was drafted by
Richard Brooks. Brooks' experience with safety committeemen was
essentially limited to arbitration proceedings. He had little
direct contact with the safety committees in the performance of
their regular duties. There is no evidence that Section II.E. or
any other part of the plan was motivated in any part by hostility
to safety committee members. I accept Mr. Brook's testimony that
he included safety committee members in Section II.E. because he
believed that they had such a high degree of responsibility for
safety in the mines.

 Compulsory collection of urine for drug testing is "a highly

invasive experience" (R571). This fact was recognized by the 5th
Circuit Court of Appeals in the case of National Treasury
Employees Union v. VonRaab, 816 F.2d 170, 175 (5th Cir.1987):

      There are few activities in our society more personal
      or private than the passing of urine. Most people
      describe it by euphemisms if they talk about it at all.
      It is a function traditionally performed without public
      observation; indeed its performance in public is
      generally prohibited by law as well as social custom.

Collection of urine under the observation of co-workers or
supervisors is especially uncomfortable for most people. The
employees at JWR believed that compulsory drug testing was in
some way accusatory, that being singled out for testing without
cause was an invasion of privacy and degrading. One employee who
was tested because she reported two back injuries within a year
"felt humiliated and embarrassed about" being required to give a
urine specimen. (R627) Recent news media stories have also
created the fear in the minds of many JWR employees that the
results of testing are not completely accurate, thus raising the
specter that they might be falsely and unfairly branded as drug
users. The evidence shows however that the drug screen testing
used by JWR--an initial screen and a confirmatory screen--is better
than 99 percent accurate. This, of course, presumes that

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the collection procedures including chain of custody are strictly
followed.

 A substantial number of JWR employees, including most

members of the safety committees, believe that singling out
safety committee members for random testing is unfair. Some
safety committee members have resigned because of the program. A
number of others have considered resigning. Miners have refused
to run for safety committee positions because they would be
singled out for random testing four times per year. Steve
Anderson who resigned from the safety committee testified:

      [The drug abuse program] is just too much room for
      harassment. You try to do your job and if you write a
      103g or you file a complaint or the Federal, something
      like that if they don't like it, they got too much room
      for harassment just of the safety committee, that four
      times a year. (R.618)

 The bashful bladder syndrome is a psychiatric illness--a

social phobia--in which a person has a fear of urinating in public
restrooms or in any place where the person is, or fears he/she
is, in public view. Approximately one person in three hundred of
the general population has this condition. However, stress, fear
or anger can affect a person's ability to provide a urine
specimen, even though he/she is not suffering from a clinical
case of bashful bladder syndrome. From one to three percent of
the population may experience individual episodes in which he or
she has great difficulty in urinating because of some anxiety or
pressure type situation.

 I have considered the testimony before me of Dr. George

Michael Shehi, and the record of the testimony of Dr. Daniel M.
Doleys before the arbitrator. I have also considered the
testimony of Price and Vacha. I find as facts that neither Price
nor Vacha had a clinical case of bashful bladder syndrome. I
further find that both Price and Vacha were anxious, fearful and
angry over the requirement that they submit urine samples on
March 2, 1987. I have very carefully and respectfully considered
the opinion of arbitrator Nicholas that Price and Vacha "chose
not to comply with Management's request" and that they "refused"
to deliver urine samples. However, I have an independent
responsibility under the Mine Safety Act, and have heard the
testimony of Price and Vacha among other witnesses. I have
observed their demeanor on the witness stand, and have weighed
their obvious interest in the outcome of this proceeding. I am
persuaded that they fully understood the nature of the oath they
took to tell the truth. I disagree with the implied conclusion of
the arbitrator that they perjured themselves. I find, as I
previously found in my Temporary Reinstatement Order, that Price

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and Vacha had physical or psychological difficulties in providing
the required samples on March 2, 1987. I find that they did not
refuse to submit the urine samples, but were unable to do so
under the circumstances present on the evening of March 2 at the
subject mine.

ISSUES

 1. Is the JWR Substance Abuse Program on its face violative

of section 105(c) of the Mine Act, irrespective of the motivation
of JWR?

 2. Was the JWR Substance Abuse Program as applied to

claimants Price and Vacha in violation of their rights under
section 105(c)?

 3. What deference is owed to the findings and conclusions of

the Arbitrator who upheld the discharges of Price and Vacha?

CONCLUSIONS OF LAW

 JURISDICTION

 JWR is subject to the provisions of the Mine Act in the

operation of the subject underground coal mine. Michael Price and
Joe John Vacha were, as of March 2, 1987, miners and
representatives of miners as those terms are used in the Act.

FACIAL VALIDITY OF THE JWR SUBSTANCE ABUSE PROGRAM

 The typical case of discrimination under section 105(c) of

the Act involves adverse action taken against a miner for
activity related to safety and therefore protected under the Act.
In such a case, the motivation of the employer or other person
respondent is important. In this case, the Secretary contends
that the drug testing program (or section II.E. thereof) is per
se discriminatory and therefore violative of the Act. The
employer's motivation is, if not irrelevant, at least not so
important. It is clear that a policy or program of a mine
operator can itself be held to violate the Act. Local Union 1110,
UMWA/Robert Carney v. Consolidation Coal Company, 1 FMSHRC 338
(1979). Enforcement of such a program by adverse action against a
miner or miner's representative, it seems clear to me, can be
prohibited regardless of the mine operator's motive.

 Insofar as it requires random unannounced urine testing,

JWR's substance abuse program applies only to elected safety
committee members, among all hourly employees. The evidence
establishes that the activities of many other hourly employees,
including those who work at the coal face, and on-shift and

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pre-shift examiners ("firebosses") are intimately related to
safety, but they were not included in the random testing
requirement. JWR's explanation for the distinction is that safety
committee members have the greatest responsibility for safety of
anyone in the mine. Brooks stated that it was for that reason
that these employees were to be tested first. Brooks and William
Carr, President of JWR's Mining Division, implied that they
intended to test other hourly workers in the future. However that
may be, it is clear that the current program is restricted to,
and immediately impinges on one small group of hourly employees:
the elected members of the mine safety committees.

 The evidence establishes that the miners at JWR view

mandatory drug testing with varying degrees of hostility: many
consider it to be accusatory and believe that it casts suspicion
of drug use on persons being tested. They look upon the testing
procedures followed by JWR as an invasion of privacy and an
affront to their dignity. Further, some of the miners have been
exposed to news media reports which cast doubt on the accuracy of
the testing procedures. Thus, they expressed fear that they might
be erroneously branded as drug users. These suspicions and doubts
seem to me to have resulted in part at least from an inadequate
education effort on the part of JWR, and from the fact that the
program was instituted unilaterally, without the participation of
the unions.

 The members and potential members of the mine safety

committee reacted negatively and hostilely to the provisions of
II.E. which they viewed as unfairly singling them out for random
testing four times annually. As a result of this reaction, some
committee members have resigned; others have considered resigning
(only one test has been conducted to date because of the pending
litigation), and further testing may cause further resignations.
Still others have refused to accept safety committee positions or
to run for election to them.

 Based on this review of the evidence, I conclude that one

effect of the drug abuse program has been to severely limit the
independence and therefore the effectiveness of the committees.
This is true without regard to the motivation of JWR in
instituting the plan. The importance of preserving the
independence of safety committee personnel was underscored in the
case of Local Union 1110, UMWA/Robert Carney v. Consolidation
Coal Company, supra, a case under the 1969 Coal Act. The safety
committeeman is the representative of the miners under the Act.
He or she is the usual conduit for miners' safety complaints to
management or to MSHA. Although miners and mine management are
both clearly interested in safety, a safety committeeman brings a
different perspective, a different attitude to safety matters,

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the perspective and attitude of the miner. He may be less
concerned about production and more concerned about the lives and
limbs of the workers. In some instances at least, his concerns
and opinions may clash with those of management. It is therefore
important that his independence be maintained. Congress
strengthened the antiretaliatory provisions in the Coal Act when
it enacted the 1977 Mine Act. The legislative history of the Mine
Act makes this clear:

      If our national mine safety and health program is to be
      truly effective, miners will have to play an active
      part in the enforcement of the Act. The Committee is
      cognizant that if miners are to be encouraged to be
      active in matters of safety and health, they must be
      protected against any possible discrimination which
      they might suffer as a result of their
      participation. . . .

      *          *          *          *          *

      The wording of section [105(c) ] is broader than the
      counterpart language of section 110 of the Coal Act and
      the Committee intends section [105(c) ] to be construed
      expansively to assure that miners will not be inhibited
      in any way in exercising any rights afforded by the
      legislation.

S.Rep. 95Ä181, 95th Cong., 1st Sess. 35Ä36 (1977), contained in
Legislative History of the Federal Mine Safety and Health Act of
1977, 95th Cong., 2d Sess. (1978) 623Ä624.

 I have previously found that the program was not intended to

diminish the rights and responsibilities of the miners'
representatives, but its effect has clearly been to do so. I
conclude that a retaliatory motive need not be shown to make out
a claim of discrimination under the Mine Act in the circumstances
of this case. Cf. Simpson v. FMSHRC, 842 F.2d 453 (D.C.Cir.1988).
Therefore, I conclude that section II.E. of the JWR Drug Abuse
and Rehabilitation and Control Program is facially in violation
of section 105(c) of the Act. The discharge of Price and Vacha on
the ground that they refused to participate in the program was
therefore also in violation of section 105(c).

IMPLEMENTATION OF THE PLANÄDISCHARGE OF PRICE AND VACHA

 The Secretary and the Intervenor both contend that even if

the drug testing plan is not discriminatory on its face, it was
discriminatorily applied to Price and Vacha because of their
safety committee activities. Specifically, they argue that Price
and Vacha were harassed and were subjected to disparate treatment

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because they were safety activists. Finally, they contend that
they were discharged because of their activity as safety
committeemen. To establish a prima facie case of discrimination
under this theory of the case, complainants have the burden of
establishing that they engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (1980), rev'd on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 633 F.2d 1211 (3rd Cir.1981);
Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 817
(1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was not motivated in any part by protected activity. The
operator may also defend affirmatively by proving that it was
also motivated by unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra.

 The safety committee activities of Price and Vacha were

clearly protected by the Act. Safety inspections, safety
complaints to mine management and MSHA, relaying miner complaints
to mine management and MSHA: these are prototypically activities
protected under the Mine Act. Refusal (as JWR claims) or failure
because of inability (as Price and Vacha claim) to produce urine
specimens for drug tests would not on the surface seem to be
protected. But the specimens were sought only because Price and
Vacha were safety committeemen and therefore representatives of
the miners. Complainants contend that the pre-testing harassment
and the refusal to accommodate the difficulties complainants
experienced in providing the specimens are evidence of a
discriminatory motive.

 Rayford Kelly, the Industrial Relations supervisor at the

No. 4 Mine, who discharged Price and Vacha, was not directly
involved with the safety committee activities of Price and Vacha
but was clearly aware of them. He knew they were safety
activists, that they were "notorious" for filing safety
complaints. The supervision of the urine collection at the No. 4
Mine was delegated to Andrews and Hendricks, company safety
inspectors, rather than remaining in the Industrial Relations
Department, as in the other mines. In some of the mines, those
supervising the collection did not go into the bathroom with
those giving the samples. No accommodation was offered Price and
Vacha when they claimed inability to produce urine specimens,
though some accommodation was given others involved in the drug
screening program. I have found as a fact that Price and Vacha
did not refuse to give specimens, but were in fact physically or
psychologically unable to produce the specimens prior to being
discharged on March 2, 1987. On the basis of this evidence, and
reasonable inferences from the evidence, I conclude that the

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discharge of Price and Vacha was motivated in part because of
protected activity, i.e., because of their activities as safety
committeemen. The evidence also establishes that JWR made known
that refusal or failure to submit urine samples when required
under the program would be ground for discharge. This was based
on its conclusion that such refusal would be violative of a work
order and thus insubordination. It is not my function to
determine whether such a policy was a good one or was in
compliance with the contract. (It involved a "work order" which
involved activity "off the clock"). Price and Vacha were
discharged for insubordination--violating a work order. Would they
have been discharged "in any event" for such insubordination--that
is, if they were not notorious for filing safety complaints?
Since none of the other employees tested in March and April 1987
failed to produce urine specimens, answering this question is not
easy. JWR told those being tested that failure to give a urine
specimen would result in discharge. I believe that any safety
committeeman who failed to produce a specimen when asked would
have been discharged. Therefore, I believe that Price and Vacha
would have been discharged for failure to produce the specimens
if they were not safety watchdogs but harmless safety pussycats.
I conclude therefore that JWR would have discharged Price and
Vacha for violating a work order (not protected activity) in any
event, and that the drug testing program was not discriminatorily
applied to Price and Vacha. This conclusion does not affect my
previous conclusion that the program was discriminatory on its
face.

DEFERENCE TO ARBITRATOR

 In a "Summary Opinion" dated April 13, 1987, Arbitrator

Samuel J. Nicholas, Jr., restated his award of March 19, 1987,
denying the grievances filed by the UMWA on behalf of Price and
Vacha. The arbitrator determined that JWR had the right to direct
Price and Vacha to deliver urine specimens and that Price and
Vacha had the duty to provide them. He held that the discharge of
Price and Vacha was not "colored by discrimination and/or
disparate treatment," that the discipline meted out was
appropriate "given the . . . circumstances surrounding the
[employees] refusal to deliver the . . . urine samples." The
transcript of the arbitration proceeding and the arbitrator's
opinion were before me when I issued my Temporary Reinstatement
order. I held that arbitrator's findings are not binding on the
Commission, citing Pasula v. Consolidation Coal Co., supra. It is
beyond argument that the Commission may not abdicate its
responsibility to decide whether a miner was discriminated
against under section 105(c) of the Act, because an arbitrator
has decided that the miner was or was not discharged for just
cause under the collective bargaining agreement. JWR argues,
however, that I should defer to the arbitrator's conclusion that

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Price and Vacha refused to provide the requested urine specimens.
I have considered this conclusion and have reviewed the testimony
on which it was based. I have also considered the testimony
before me and have elsewhere in this opinion given my reasons for
disagreeing with the arbitrator. I believe I have given his
findings great weight. But they are not compelling. Further, my
disagreement with the arbitrator's finding is of little
importance since, despite my finding that Price and Vacha did not
refuse to provide urine specimens, I concluded that they did not
establish (assuming the facial validity of the program) that they
were discharged in violation of section 105(c). The arbitrator's
findings and conclusions are not entitled to deference or to
great weight in determining the legal issue whether Section II.E.
of the drug testing program was on its face violative of Section
105(c).

                             ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Respondent JWR shall permanently reinstate Michael L.

Price and Joe John Vacha to the positions from which they were
discharged on March 2, 1987.

 2. Respondent shall pay wages and other benefits to Price

and Vacha from March 3, 1987, until the date of their
reinstatement with interest thereon in accordance with the
Commission decision in Secretary/Bailey v. Arkansas Carbona Co.,
5 FMSHRC 2024 (1984).

 3. The attorneys for the intervenor contributed

substantially to the successful litigation of the claim. However,
under the rule enunciated in Eastern Associated Coal Corp. v.
FMSHRC, 813 F.2d 639 (4th Cir.1987), and Maggard v. Chaney Creek
Coal Co., 9 FMSHRC 1314 (1987), complainants are not entitled to
reimbursement for private attorney's fees.

 4. Respondent shall expunge from its personnel records, all

references to the discharges of Price and Vacha on March 2, 1987.

 5. Respondent shall cease and desist from enforcing the

provisions of paragraph IIE of its Substance Abuse Rehabilitation
and Control Program against safety committee personnel in all its
mines.

 6. Counsel for the parties shall confer and attempt to agree

upon the amounts due Complainants under No. 2 above. They shall
report to me the results of their attempt on or before

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August 12, 1988. This decision shall not be final until a
supplemental decision and order has been issued concerning the
amounts due under No. 2 above.

                             James A. Broderick
                             Administrative Law Judge