Secretary of Labor o/b/o Price v. Jim Walter Resources, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

The Secretary of Labor alleged that Jim Walter Resources discharged Michael L. Price and Joe John Vacha in violation of the Mine Act after they refused to provide urine samples under the company's substance-abuse program. The Commission reversed the ALJ's finding that the program was facially discriminatory, but affirmed that the miners established a prima facie case of discriminatory discharge. It vacated the ALJ's conclusion that the company had proved it would have discharged them for the unprotected conduct alone. The Commission remanded for further findings about whether the drug-testing procedures were discriminatorily applied or deliberately manipulated and whether the company's affirmative defense could stand.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 30 U.S.C. § 813(g)(1); 29 C.F.R. § 2700.44
• Outcome: The facial-discrimination finding was reversed, the affirmative-defense ruling was vacated, and the case was remanded.
• Key point: A company may target safety-sensitive positions for drug testing, but a discharge based on discriminatorily applied testing procedures cannot support the company's affirmative defense.

Full text (FMSHRC public release)

CCASE:
MSHA (MICHAEL PRICE, JOE VACHA) AND,
UMWA V. JIM WALTER RESOURCES
DDATE:
19900820
TTEXT:

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
August 20, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MICHAEL L. PRICE
and JOE JOHN VACHA

and

UNITED MINE WORKERS OF AMERICA

v. Docket No. SE 87-128-D

JIM WALTER RESOURCES, INC.

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

DECISION

BY: Backley, Doyle and Nelson, Commissioners

This proceeding, arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act" or "Act"), involves
a discrimination complaint brought by the Secretary of Labor against Jim
Walter Resources, Inc. ("JWR"). The complaint alleges that complainants
Michael L. Price and Joe John Vacha were discharged in violation of section
105(c) of the Mine Act after they failed to provide urine samples required
under section II.E. of JWR's Substance Abuse Rehabilitation and Control
Program ("Drug Program").

Commission Administrative Law Judge James A. Broderick concluded
that section II.E. of the Drug Program, which applies to certain
supervisory and hourly employees, "whose duties, whether by job title or

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Page 2

by reason of elected office, involve safety," is facially discriminatory
because the only hourly employees covered are members of the safety
committees at JWR's mines. 10 FMSHRC 896 (July 1988) (ALJ). The judge
accordingly determined that the discharges of Price and Vacha pursuant to
the Drug Program after they failed to provide urine samples were illegal
under section 105(c), 30 U.S.C. 815(c), and ordered their reinstatement.
The judge further found, however, that section II.E. of the Drug Program
had not been discriminatorily applied to Price and

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Vacha. The judge issued a supplemental decision awarding back pay and
expenses and assessing a civil penalty of $500. 10 FMSHRC 1108 (August
1988)(ALJ). We granted JWR's petition for discretionary review and
heard oral argument. For the following reasons, we reverse the judge's
determination that the Drug Program is facially discriminatory under
section 105(c) of the Mine Act. We also reverse the judge's conclusion
that section II.E. was not discriminatorily applied to Price and Vacha,
and remand for further findings and analysis as explained below.

I.

Factual Background and Procedural History

JWR operates five underground coal mines, a training facility, and a
central shop, all located in Alabama, employing over 2,800 employees,
including 2,200 hourly workers represented by the UMWA. Each JWR mine has
a local union, all affiliated with District 20 of the UMWA. At all times
relevant to this proceeding, the UMWA and JWR were signatories to a
collective bargaining agreement governing labor relations in the JWR mines.

The bargaining agreement establishes a Mine Health and Safety
Committee at each mine composed 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 a mine and to report any
dangerous conditions to management. If the committee believes that an
imminent danger exists and recommends that the mine operator remove all
employees from the involved area, the operator is required to comply
with the recommendation. The judge noted: "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." 10 FMSHRC
at 902. The safety committeemen are elected by members of the UMWA, and
committeemen choose their chairmen and select alternate committee members.
Id.

At a meeting held in or around April 1986, JWR representatives and
UMWA officials agreed that a significant problem of substance abuse
existed among JWR's miners. High discharge, accident and absentee rates
were attributed, at least in part, to drug abuse. 10 FMSHRC at 898. The
representatives agreed that the problem should be addressed by a joint
company-union program. Id. Richard Brooks, JWR's Vice President for
Industrial Relations, proposed that the program include education, drug
testing, and rehabilitation. The UMWA believed that development of the
program should be subject to the collective bargaining process. Id.

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Page 4

Brooks subsequently prepared a proposed draft program, which was
submitted to UMWA representatives in July 1986. Brooks received no
response to the draft from the UMWA, and JWR distributed copies of its
Drug Program to UMWA district and local representatives at a meeting on
September 24, 1986. In October 1986, JWR advised UMWA representatives
that the Drug Program would take effect on January 1, 1987. By early
November 1986, a notice containing a copy of the Drug Program was posted
at each mine location and each employee received a copy of the program

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Page 5

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with his or her paycheck. !/

The details of the Drug Program are summarized in the judge's
decision. See 10 FMSHRC at 809. At issue is section II.E. of the
Drug Program, dealing with random drug testing, which states:

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.

The judge accepted Brooks: testimony that, as used in section II.E.,
the phrase "employee[s] whose duties ... by job title ... involve safety"
encompassed safety inspectors, dust and noise control supervisors, and
section foremen, all salaried positions. 10 FMSHRC at 899. The only
hourly employees covered were union safety committeemen, who came under
the phrase "employee[s] whose duties ... by reason of elected office ...
involve safety." Id.

At the time the Drug Program was implemented, complainants Michael

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1/ On November 5, 1986, the UMWA filed charges with the National Labor
Relations Board ("NLRB"), pursuant to the National Labor Relations Act,
29 U.S.C. 151 et seq. (1982)("NLRA"), challenging JWR's unilateral
implementation of the Drug Program. The NLRB deferred to arbitration
proceedings, also initiated by the UMWA, premised on the parties'
collective bargaining agreement. JWR and the UMWA subsequently reached a
settlement before the arbitrator, the terms of which were set out in an
Opinion and Award dated January 27, 1987. Under that opinion, JWR would
implement its Drug Program and the arbitrator would retain jurisdiction to
resolve any grievances arising under the program.

After the first grievances were filed and acted on, the UMWA filed
suit in federal district court to vacate the arbitrator's decision,
alleging that the union had not agreed to implementation of the Drug
Program. The district court granted summary judgment in JWR's favor, and
denied the UMWA's motion for reconsideration. On July 27, 1988, the
United States Court of Appeals for the Eleventh Circuit summarily affirmed
the district court. (By order of October 12, 1988, we permitted JWR to
supplement the record in the present proceeding to include therein a copy
of the Eleventh Circuit's unpublished order.)

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Page 6

Meanwhile, the UMWA renewed its unfair labor practice charges before
the NLRB. In a letter dated August 31, 1988, the NLRB regional director
declined to institute an unfair labor practice complaint based on those
charges. (This letter is also included in the supplement to the record
referred to above.) The Regional Director noted that the district court
and Eleventh Circuit had rejected the UMWA's claim that it had not agreed
in settling the arbitration to waive objections to implementation of the
Drug Program.

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L. Price and Joe John Vacha were employed at JWR's No. 4 Mine, an
underground coal mine located near Tuscaloosa, Alabama. 2/ Price had
worked for JWR for approximately nine years and had been a union safety
committeeman for about eight and one-half years. Vacha had also worked
for JWR for nine years, and had been a union safety committeeman for
approximately six years. Price was classified as a longwall helper and
Vacha as a continuous miner operator although, in recent years, he had
actually worked on assembling self-contained rescuers.

Vacha had filed from 75 to 100 safety or health complaints with the
Secretary under section 103(g)(1) of the Mine Act, 30 U.S.C. 813(g)(1),
and had participated in 50 to 75 safety grievances. Price had filed
approximately 25 section 103(g)(1) complaints annually and had handled
approximately 70 safety grievances. Price and Vacha estimated that they
spent approximately 50% of their working time on safety committee duties.
Both had been involved in disputes with management over safety-related
activities and in 1986 Price had been discharged but reinstated following
arbitration.

In late February 1987, Brooks decided to begin random testing of
the safety-related employees in all the JWR Mines under section II.E. of
the Program. He notified the industrial relations supervisors of this
decision and directed them to test all employees covered by section II.E.
on March 2, 1987. The record reflects, however, that, for various reasons,
the urine samples were obtained from affected employees on March 2, 3, 6,
and 9, and on April 8, 1987. In the No. 4 Mine, where Price and Vacha
worked, sampling was delegated by the Industrial Relations Supervisor,
Rayford Kelly, to Wyatt Andrews, a JWR safety inspector, and Bob Hendricks,
a JWR associate safety director. (In the other mines, the samples were
taken under the direct supervision of the industrial relations
supervisors.)

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, 1987, Price was informed that he would
have to submit a urine sample. Vacha was similarly notified at about
11:30 a.m. At the end of their shift, they went to the office of Rayford
Kelly. Complainants went into a bathroom with Andrews but were unable to
urinate. Water, coffee and soft drinks were made available, but the
requested urine samples were not forthcoming. At about 7:00 p.m.
(four hours after completion of their shift), Kelly told Price

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2/ Neither Price nor Vacha testified at the hearing on the merits in
this proceeding. The recitation of facts is based on testimony and
other evidence incorporated by the judge in his decision (10 FMSHRC
at 897) from earlier proceedings concerning their temporary reinstatement.

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Page 8

On July 7, 1987, upon application by the Secretary, the judge ordered
that the miners be temporarily reinstated pursuant to section 105(c)(2)
of the Mine Act, 30 U.S.C. 815(c)(2), and Commission Procedural Rule 44,
29 C.F.R. 2700.44 (1986). We have previously affirmed that order.
9 FMSHRC 1305 (August 1987). JWR appealed the Commission's temporary
reinstatement order to the United States Court of Appeals for the Eleventh
Circuit, where the matter currently is pending (No. 87-7484, petition for
review filed August 7, 1987).

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Page 9

~1525
and Vacha that they would be given 30 minutes to provide a sample or
they would be disciplined. Price.'s request that they be permitted to
return the next morning to provide the samples was refused. At
approximately 7:20 p.m., they were given five more 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 for insubordinate conduct.
The following morning, March 3, 1987, Price and Vacha had drug screening
tests at the Emergicare Center (JWR's contract physicians) and at the
Longview Hospital, respectively. The test results were negative and were
submitted to JWR. 10 FMSHRC 900-01, 909-10. 3/

On March 9, 1987, Price and Vacha filed discrimination complaints
with the Secretary pursuant to 30 U.S.C. 815(c)(2). As noted, the
Secretary's application for temporary reinstatement was granted by the
judge and affirmed by the Commission. Subsequently, the Secretary filed
a section 105(c)(2) complaint on their behalf and the UMWA intervened on
behalf of complainants. A hearing on the merits was held before Judge
Broderick.

At the hearing, JWR's Brooks testified that section II.E. of the
Drug Program covered all JWR supervisors, safety and associate safety
inspectors, dust and noise control supervisors, and section and maintenance
foremen. Tr. 65-66. Safety committeemen were also included, he stated,
because "they have the highest responsibility for safety of anybody in the
coal mine." Tr. 67. See also Tr. 76, 77. Brooks estimated that in
carrying out safety-related duties, a safety committeeman spent about 50%
of his working time engaged in safety inspections, accompanying MSHA
inspectors, and preparing "paper work" in the safety office. Tr. 72-75.
Brooks had no specific knowledge about drug problems among present
committeemen but, because of their safety-related duties, began randomly
testing them. Tr. 83. Under section II.E., he explained, JWR supervisory
employees had been tested numerous times, "almost every month," and the
committeemen once. Tr. 86. As part of the testing commenced on March 2,
1987, urine samples were taken at the No. 4 Mine from four management
safety personnel and the owl shift safety committeeman.

In.his decision, Judge Broderick reviewed the Drug Program and its
implementation, the functions of the safety committee, and industry drug
abuse programs. 10 FMSHRC at 898-906. He found initially that Price and
Vacha "had physical or psychological difficulties in providing the required
samples on March 2, 1987, ... [and] 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 ... mine." 10 FMSHRC at 905-06. He also examined
JWR's motivation in adopting the Drug Program. He rejected arguments by
the Secretary and the UMWA that section II.E.

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Page 10

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3/ Price and Vacha filed grievances over their discharges. On April 13,
1987, the arbitrator issued an opinion sustaining the discharges. See
10 FMSHRC at 901-02. As discussed at some length in Judge Broderick's
decision, the judge determined that deference to the arbitrator's findings
and conclusions was not appropriate. See 10 FMSHRC at 910-11.

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~1526
intentionally targeted UMWA safety committeemen out of hostile or
discriminatory motivation:

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.

10 FMSHRC at 904.

Notwithstanding the above finding of nondiscriminatory motivation,
the judge concluded that an operator:s policy or program can itself
violate the Mine Act, regardless of the operator's motivation in adopting
the program. 9 FMSHRC at 906, citing Local Union 1110, UMWA/Robert Carney
v. Consolidation Coal Company, 1 FMSHRC 338 (May 1979). According to the
judge, enforcement of such a program against a miner or miners'
representative can be prohibited under the Mine Act irrespective of the
operator's motive. Id.

The Secretary called as witnesses 17 JWR hourly employees who were
committeemen or officials of the UMWA. Judge Broderick summarized this
body of testimony as follows:

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 [section] II.E. which they viewed
as unfairly singling them out for random testing

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Page 12

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.

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~1527

10 FMSHRC at 907.

The judge then stated:

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.

10 FMSHRC at 907. After discussing the importance of the safety
committees at JWR's mines, the judge concluded that the effect of the
Drug Program was to "diminish" the "rights and responsibilities of the
miners' representatives" and that, therefore, Section II.E. was "facially
in violation of section 105(c) of the Act." 10 FMSHRC at 907- 08. He
further determined that the discharge of Price and Vacha "because they
refused to participate in the program" was, accordingly, in violation of
section 105(c) of the Act. 10 FMSHRC at 908.

Based on his determination that section 11.E. was facially
discriminatory, the judge ordered that complainants be permanently
reinstated with back pay and other benefits, that their records be
expunged of references to their discharge, and that JWR cease enforcement
of section II.E. against safety committee personnel. 10 FMSHRC at 911.
In a supplemental remedial decision, the judge awarded specific sums of
back pay with interest and expenses and assessed a civil penalty of $500.
10 FMSHRC at 1109"10.

The judge also proceeded to discuss whether, even if section Il.E.
is not facially discriminatory, it was discriminatorily applied to Price
and Vacha because of their activities as safety committeemen. The judge
found that both miners had engaged in protected activity as committeemen.
Specifically, he found that Price and Vacha had the reputation of being
safety activists, "notorious" for filing safety complaints, and that their
numerous safety committee activities were "clearly protected" by the Act.
10 FMSHRC 903, 909.

The judge concluded that the discharge of Price and Vacha was
motivated in part because of their protected activity as committeemen
and that complainants had established a prima facie case of discrimination.
10 FMSHRC at 909-10. However, he went on to conclude that JWR
affirmatively defended by showing that it would have terminated them in any
event for the unprotected activity of failing to provide a urine specimen.

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Page 14

We granted JWR's subsequent petition for discretionary review, which
essentially raises three assignments of error: (1) the judge erred in
holding that JWR's Drug Program violated section 105(c) of the Act, absent
proof of any discriminatory motive; (2) the judge erred because he failed
to weigh JWR's legitimate safety concerns against the purported adverse
effects of the Drug Program on safety committeemen;

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Page 15

~1528
and (3) Price and Vacha should not be reinstated because they were not
discharged for activities protected by the Mine Act.

In its brief on review, the UMWA replied to the issues raised in
JWR's petition for review and, in Part III of its brief, further argued
that the judge had erred in concluding that the Drug Program was not
discriminatorily applied to Price and Vacha. UMWA Br. 21-27. In response,
JWR filed a motion to strike the latter portion of the UMWA's brief as
being outside the proper scope of Commission review. Both the UMWA and the
Secretary responded in opposition to JWR's motion to strike.

While this proceeding was pending on review, attorneys representing
JWR in bankruptcy proceedings (different attorneys from those representing
JWR in this proceeding) filed with the Commission a "Notice of Automatic
Stay and Notice of Case under Chapter 11 of the United States Bankruptcy
Code." This summary notice states that JWR, as a bankruptcy debtor, has
filed a petition for reorganization under Chapter 11 of the United States
Bankruptcy Code, 11 U.S.C. 101 et seq. (1982) ("Bankruptcy Code"), in the
United States Bankruptcy Court for the Middle District of Florida, Tampa
Division, Case No. 89-9715-8Pl. The notice recites a portion of the
automatic stay provision of the Bankruptcy Code, 11 U.S.C. 362, and
implies that the stay applies to this discrimination proceeding.

Subsequently, the Commission issued an order directing the parties
to file supplemental memoranda "addressing the question of whether the
automatic stay provision of 11 U.S.C. 362(a)(1) applies to this Commission
proceeding, with particular reference to the exceptions contained in
11 U.S.C. 362(b)(4) & (5)." The Secretary, the UMWA, and the attorneys
representing JWR in this discrimination proceeding have filed responses,
all arguing that this discrimination proceeding is excepted from the
automatic stay provision of 11 U.S.C. 362(a)(1). The attorneys
representing JWR in the bankruptcy proceeding did not file a response to
the Commission's order.

II.

Disposition of Issues

A. JWR,s motion to strike and effect of bankruptcy proceedings

We address first the threshold matters of JWR's motion to strike a
portion of the UMWA brief and the effect, if any, of JWR's pending
bankruptcy petition on this Commission proceeding. With respect to the
motion to strike, under the Mine Act "[a]ny person adversely affected or
aggrieved" by a decision of a Commission administrative law judge may file

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Page 16

with the Commission a petition for discretionary review of the judge's
decision. 30 U.S.C. 823(d)(2)(A)(i)-(iii). See also, Commission
Procedural Rule 70(a), 29 C.F.R. 2700.70(a). In general, once such a
petition is granted, Commission review is limited to the questions
raised by the petition, unless pursuant to the provisions of the Act, the
Commission, sua sponte, has directed review of other issues. 30 U.S.C.
823(d)(2)(A)(iii), (B), & (C). See also them run for election

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~1529
Commission Procedural Rules 70(f) & 71, 29 C.F.R. 2700.70(f) & 71. Here,
the Secretary and the UMWA obtained below a favorable judgment awarding
complainants the remedial relief sought. Therefore, it is not surprising
that, as the prevailing parties, they did not file a petition for
discretionary review in this matter objecting to those findings and
conclusions of the judge that rejected certain of their positions.

After JWR filed its petition for review, the Secretary and UMWA were
not compelled to file cross-petitions for review in order to preserve their
right to raise on review certain objections to other portions of the
judge's decision. Rather, adopting the general federal rule of appeal, we
hold that, in such circumstances, the "appellee" may urge in support of the
judgment below any matter or issue appearing in the record, even if it
involves an objection to some aspect of the judge's reasoning or issue
resolution, so long as the appellee does not seek to attack the judgment
itself or to enlarge its rights thereunder, in which case it would be
obliged to file a cross-petition for discretionary review. See, e.g.,
Dandridge v. Williams, 397 U.S. 471, 475-76 n.6 (1970); United States v.
American Ry. Exp. Co., 265 U.S. 425, 435-36 (1924); Freeman v. B&B Assoc.,
790 F.2d 145, 151 (D.C. Cir. 1986). The UMWA's attack in Part III of its
brief on the judge's resolution of the issue involving application of the
Drug Program to Price and Vacha is based on matters in the record, is not
inconsistent with the judgment of discrimination rendered below and does
not seek any greater relief than already granted. Accordingly, upon
consideration of JWR's motion to strike and the responses thereto, we deny
JWR's motion.

Concerning the effect of the bankruptcy proceeding, we concur with
the parties that this matter falls within the exceptions to the automatic
stay provisions of the Bankruptcy Code. As a preliminary matter, we hold
that we possess jurisdiction in this proceeding to determine tHe effect, if
any, of the bankruptcy matter on continuation of this proceeding. See,
e.g., Brock v. Morysville Body Wks., Inc., 829 F.2d 383, 385-87 (3rd Cir.
1987); NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 938-39 (6th Cir.
1986).

As pertinent here, section 362 of the Bankruptcy Code provides:

Except as provided in subsection (b) of this
section, a petition filed under section 301 ... of
this title ... operates as a stay, applicable to all
entities, of--

(1) the commencement or continuation, including
the issuance or employment of process, of judicial,

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Page 18

administrative, or other action or proceeding against
the debtor that was or could have been commenced before
the commencement of the case under this title, or to
recover a claim against the debtor that arose before
the commencement of the case under this title; (2) the
enforcement, against the debtor or against property of
the estate, of a judgment obtained before the
commencement of the case under this title....

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(b) The filing of a petition under section 301 ... of
this title ... does not operate as a stay --

(4) under subsection (a)(1) of this section, of
the commencement or continuation of an action or
proceeding by a governmental unit to enforce such
governmental unit's police or regulatory power;
(5) under section (a)(2) of this section, of the
enforcement of a judgment, other than a money judgment,
obtained in an action or proceeding by a governmental
unit to enforce such governmental unit's police or
regulatory power....

11 U.S.C. 362(a) & (b).

The term "governmental unit" is defined in the Bankruptcy Code,
in relevant part, as the "United States; ... department, agency, or
instrumentality of the United States...." 11 U.S.C. 101(26). There is
no question that the Secretary, Department of Labor, and Mine Safety and
Health Administration are all "governmental units" within the meaning of
the Bankruptcy Code. Cf. Edward Cooper Painting, 804 F.2d at 942; NLRB v.
Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir. 1981)(concluding that NLRB
is a "governmental unit").

The present case was brought by the government, through the
Secretary, to effectuate and protect the rights secured by section
105(c)(1) of the Mine Act. This is the kind of "police or regulatory"
action covered by the exception to the automatic stay. Cf. EEOC v. Rath
Packing Co., 787 F.2d 318, 323 (8th Cir. 1986). See also Morysville Body
Wks., 829 F.2d at 388; Edward Cooper Painting, 804 F.2d at 942; Secretary
on behalf of George W. Heiney & John Chramm v. Leon's Coal Co., 4 FMSHRC
572, 574-75 (April 1982)(ALJ). Accordingly, we conclude that the present
proceeding is not subject to the automatic stay provisions of section
362(a)(1).

Section 362(b)(5) also excepts from automatic stay "enforcement of a
judgment, other than a money judgment, obtained in an action or proceeding
by a governmental unit to enforce such governmental unit:s police or
regulatory power...." (Emphasis added.) The courts have recognized that
adjudicatory bodies presiding over a governmental "police or regulatory"
action may enter a money judgment against a respondent-debtor but may not
permit collection of that pecuniary judgment in an enforcement action.
E.g., Morysville Body Wks., 829 F.2d at 389; Edward Cooper Painting,

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Page 20

804 F.2d at 942-43; Rath Packing, 787 F.2d at 325-27. See also H.R.
No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S. Code
Cong. & Ad. News 5963, 6299. Here, were a finding of JWR's liability
ultimately made judgment could be entered "to fix damages for violation of
the law. The enforceability of such a judgment is a matter for other
forums.

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For the foregoing reasons, we proceed to a disposition of this case.

8. Is section II.E. of JWR's Drug Program Facially Discriminatory?

The general principles applicable to analysis of discrimination
issues under the Mine Act are settled. In order to establish a prima facie
case of discrimination under section 105(c) of the Act, a complaining miner
bears the burden of production and proof in establishing that (1) he
engaged in protected activity and (2) the adverse action complained of was
motivated in any part by that protected activity. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was not motivated in any part by
protected activity. If.an operator cannot rebut the prima facie case in
this manner, it nevertheless may defend affirmatively by proving that it
also was motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra. See also, e.g., Eastern Assoc. Coal
Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC,
719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983)(approving nearly identical test under
National Labor Relations Act).

This is the first discrimination case before the full Commission
that involves issues of workplace substance abuse programs and we begin
by placing that subject in perspective under the Mine Act.

Nothing in the Mine Act bars a mine operator from adopting a
substance abuse control program. The problem of drug abuse in society
and the effects of that problem on the workplace are well documented. As
the judge noted:

On September 15, 1986, the President of the
United States issued an Executive Order, entitled
Drug-Free 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 100-43, 1OOth Cong. 1st Sess., to accompany S.

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Page 22

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

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Page 23

~1532
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."

10 FMSHRC at 903. Indeed, in the context of the mining occupation,
adoption of a reasonable substance abuse program could advance the safety
and health goals of the Mine Act. We note also the Secretary's statement
that she "is not contending that substance abuse programs are per se
unlawful or discriminatory" under the Act and that she "supports the goal
of a drug free work place." Sec. Br. 1 & n. 1.

We emphasize, however, that the Commission's jurisdiction to
entertain and resolve disputes involving substance abuse programs is
limited. As we previously observed: "[T]he Commission does not sit as
a super grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of JWR's [Drug Program] apart from the scope
and focus appropriate to analysis under section 105(c) of the Mine Act."
9 FMSHRC at 1307. Our limited purpose is to focus simply on whether the
Drug Program or enforcement of some component thereof conflicts with rights
protected by the Mine Act.

The judge found section II.E. of the Drug Program to be "facially
discriminatory" because it "singled out" safety committeemen from JWR's
other hourly employees for mandatory drug testing and because of the
reaction of safety committeemen and potential safety committeemen to the
program, which limited the safety committees' effectiveness. We disagree
with the judge that JWR's Drug Program is facially in violation of section
105(c) of the Mine Act.

The Mine Act broadly defines "miner" as "any individual working
in a coal or other mine...." 30 U.S.C. 802(g) (emphasis added). 4/
Section II.E. of the Drug Program applies to a portion of JWR's "miners";
some were salaried or supervisory employees, and some were hourly,
nonsupervisory employees -- all are "miners" under the Mine Act.
Therefore, the safety committeemen were not the only "miners" subject to
mandatory testing under JWR's Drug Program. Stated otherwise, safety
committeemen were not "singled out" from all other "miners" at JWR's mines.

The Secretary and the UMWA imply that the inclusion of safety
committeemen, alone among JWR's hourly employees, evidences discrimination
against them. Not every classification or difference in the treatment of
employees, however, amounts to illegal "discrimination," especially where
there is sufficient lawful reason for the challenged distinction. We hold
that, on this record, JWR advanced adequate and reasonable business

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Page 24

justification for including safety committeemen, along with the other
employees whose job duties involved

---

4/ It is to be noted that the safety committeemen at JWR's mines derive
their offices, not from the Act or the Secretary's implementing standards
and regulations, but wholly from the parties' private contractual
agreement.

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Page 25

~1533
safety matters, in the pool of miners subject to the drug testing
provisions of section II.E. The evidence clearly shows that section II.E.
was targeted at miners whose duties have a substantial impact on miner
safety. The evidence further reflects, and the judge so found, that JWR
genuinely believes that a substance abuse problem existed among its
employees, that the effects of any such abuse are most dangerously
manifested in job functions involving safety, that section II.E. is
designed to address this situation, and that it was adopted for
non-discriminatory reasons.

There is no dispute that the safety committeemen spent up to 50% of
their time engaged in safety matters. Brooks testified that safety
committeemen had "the highest responsibility for safety of anybody in the
coal mine." Tr. 67. It may be true that other hourly job classifications
also have a substantial impact on miner safety. Indeed, from a general
perspective, all miners' work activities affect safety. Given that a mine
operator may adopt a substance abuse program, however, section 105(c)
cannot be read as compelling mandatory drug testing of all miners because
testing is to be a part of the program. Absent a showing of discriminatory
motivation, nothing in section 105(c) precludes an operator from proceeding
in a gradual, incremental, or limited manner, by first targeting for drug
testing certain job classifications that are viewed in good faith as being
the most safety sensitive positions. Stated otherwise, an operator is not
required by the Mine Act to remedy all aspects of a perceived substance
abuse problem or none at all. Cf., e.g., Fisher v. Secretary, 522 F.2d
493, 500, 502 (7th Cir. 1975).

We accept the judge's characterization of the testimony of the
safety committeemen as showing that many committeemen opposed and disliked
implementation of section II.E. However, a miner's opposition or hostility
to an operator's business policy is not determinative of the validity of
that policy under section 105(c) of the Mine Act. An adverse action under
section 105(c) of the Mine Act is not simply any operator action that a
miner does not like. Secretary on behalf of Chester Jenkins v. Hecla-Day
Mines Corp., 6 FMSHRC 1842, 1848 n. 2 (August 1984). The personal feelings
of opposition and hostility to section II.E. held by safety committeeman,
as found by the judge, are insufficient to establish that section II.E. was
discriminatory. Again, we note that the burdens imposed by section II.E
fell equally on JWR's supervisory staff.

Thus, we find that substantial evidence and applicable legal
principles do not support the judge's determination that section II.E. was
facially discriminatory. Accordingly, we reverse the judge's finding of a
violation of section 105(c) under the theory of facial discrimination.

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Page 26

C. The application of section II.E. of JWR's Drug Program to
complainants

The judge concluded that section II.E. of JWR's Drug Program had not
been discriminatorily applied to Price and Vacha. The judge's findings
that Price and Vacha had engaged in protected activities and

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Page 27

~1534
that their termination was motivated, at le.st in part, by their protected
activities are supported by substantial evidence and are consistent with
controlling precedent. Accordingly, we affirm the judge's conclusion that
Price and Vacha established a prima facie case of discriminatory discharge.

The judge also found that, although the complainants had made out a
prima facie case of discriminatory discharge, JWR had defended
affirmatively by showing that it would have fired them in any event for the
unprotected activity alone of failing to provide the requested urine
specimens. 10 FMSHRC at 909-910. As explained above, an operator proves
an affirmative defense pursuant to the Pasula-Robinette test if it shows
that (1) it was also motivated by the miner's unprotected activities, and
(2) would have taken the adverse action in any event for the unprotected
activities alone. As we have explained:

[T]he operator must prove that it would have
disciplined the miner anyway for the unprotected
activity alone. Ordinarily, an operator can attempt
to demonstrate this by showing, for example, past
discipline consistent with that meted out to the
alleged discriminatee, the miner's unsatisfactory
past work record, prior warnings to the miner or
personnel rules or practices forbidding the conduct
in question. Our function is not to pass on the wisdom
or fairness of such asserted business justifications,
but rather only to determine whether they are credible
and, if so, whether they would have motivated the
particular operator as claimed.

Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). As a corollary
to these principles, it follows that an operator does not establish a
Pasula-Robinette affirmative defense if a work rule or policy that the
miner is alleged to have violated, was applied discriminatorily to the
miner or in a manner deliberately calculated to render his compliance
difficult or impossible. In such cases, the claimed "independent" basis
for discipline is actually an extension of the operator's discriminatory
conduct. Further, pretext may be found, for example, where the asserted
justification is weak, implausible, or out of line with the operator:s
normal business practices. E.g., Haro, supra, 4 FMSHRC at 1937-38.
Ultimately, the operator must show that the justification is credible and
would have legitimately moved it to take the adverse action in question.
E.g., Haro, 4 FMSHRC at 1938. Here, the judge has entered a number of
findings, not fully explained in his analysis of JWR's affirmative defense,
that raise these issues.

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Page 28

The judge found that prior to the attempted urine sampling at issue,
both Price and Vacha had been subjected to supervisory "joking" concerning
their future testing:

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

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Page 29

~1535
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 later 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 occasions jokingly thrust
an empty ... cannister and an empty coca cola 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 2, 1987.

10 FMSHRC at 900. The judge also determined that the complainants did not
refuse to submit urine specimens on March 2 but had genuine "physical or
psychological difficulties" in providing the requested samples. 10 FMSHRC
at 904-06. He further noted that Price and Vacha had drug screening tests
performed at the Emergicare Center (JWR's contract physicians) and at the
Longview Hospital, respectively, the next day and submitted the results,
which were negative, to JWR. 10 FMSHRC at 901. The judge stated that
Price and Vacha "were unable" to provide urine samples under the
circumstances present on the evening of March 2 at the subject mine."
10 FMSHRC at 906.

At the other JWR mines, the Industrial Relations supervisor oversaw
the urine sampling; at the No. 4 Mine, the supervision of urine collection
was delegated to Andrews and Hendricks. 10 FMSHRC at 909. Thus, the
actual testing of Price and Vacha was carried out by those who had made the
earlier jokes, i.e., Andrews and Hendricks. Id.

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.

10 FMSHRC at 909. Similarly, in its brief on review, the UMWA points to
evidence in the record showing that the manner of testing Price and Vacha
was different from the testing procedures followed at other mines, that JWR

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Page 30

accommodated other miners who experienced difficulty urinating on demand,
and that similar discipline was not meted out to those other miners. UMWA
Br. 24-25.

We find that the judge did not fully examine and explain, in the
context of ruling on JWR's affirmative defense, the impact of the evidence
summarized above. If, in fact, Price and Vacha were fired for

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Page 31

~1536
failing to comply with discriminatorily applied drug testing procedures
or if those procedures were deliberately manipulated to contribute to
such failure, a Pasula-Robinette affirmative defense based on those same
procedures cannot stand. In other words, a discharge for failure to
comply with a discriminatorily implemented work order would not satisfy
the affirmative defense requirements of Commission precedent.

Based on the above concerns, we remand this matter to the judge for
the narrow purpose of analyzing and explaining the impact of the evidence
discussed above on JWR's attempt to establish an affirmative defense. On
remand, the judge shall provide all parties with the opportunity to brief
the merits of the issues being remanded.

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Page 32

~1537
IV.

Conclusion

For the foregoing reasons, we reverse the judge's conclusion that
section II.E. of JWR's Drug Program is facially discriminatory in violation
of section 105(c) of the Mine Act. With respect to the application of the
Drug Program to Price and Vacha, we vacate that portion of the judge's
decision in which he concluded that JWR affirmatively defended against the
prima facie case of discrimination established by the complainants. We
return this case to the judge for further findings and analysis on that
subject as explained above. Accordingly, this matter is remanded for
further proceedings consistent with this opinion.

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Page 33

~1538
Commissioner Lastowka, concurring in part and dissenting in part:

I agree with my colleagues that this matter falls within the
exceptions to the automatic stay provisions of the Bankruptcy Code and that
the Commission may therefore proceed to a disposition of the proceeding
before us. I also concur fully in the conclusion, and the rationale in
support thereof, that Section 11. E. of JWR's Drug Program is not facially
violative of section 105{c) of the Mine Act. l must respectfully dissent,
however, from the majority's denial of JWR's motion to strike that part of
intervenor UMWA's brief challenging the judge's conclusion that the
specific application of JWR's Drug Program to Price and Vacha did not
violate section 105(c). As explained below, JWR s motion to strike is
well-founded and should be granted. As further explained, I would remand
to the administrative law judge for entry of a final, appealable order
concerning the specific application of the drug program.

The statutory procedure governing the raising of issues in review
proceedings before the Commission is specific and express. Under section
113{d) of the Mine Act "any person adversely affected or aggrieved" by a
decision of a Commission administrative law judge may petition the
Commission for discretionary review of the judge's decision. 30 U.S.C.
823(d)(2)(A)(i); 29 C.F.R.2700.70(a). If such a petition for
discretionary review is granted, the Commission's review authority is
limited to the issues raised in the petition. 30 U.S.C 823(d)(2)(A)(iii);
29 C.F.R. 2700.70(f); Chaney Creek Coal Corp. v. FMSHRC. 866 F.2d 1121,
1129 (D.C. Cir. 1989); Secretary v. Phelps Dodge Corp., 709 F.2d 51
(D.C.Cir 1983). Additional issues can be considered only if the Commission
sua sponte directs such other issues for review within 30 days of the
administrative law judge's decision. Chaney Creek: Phelps-Dodge:
30 U.S.C. 823(d)(Z)(B); 29 C.F.R. 2700.71.

Based on this statutory review scheme, JWR has filed a motion to
strike a portion of intervenor UMWA's brief. JWR emphasizes that its
petition for discretionary review was the sole petition for review filed,
and that its petition challenged only the administrative law judge's
conclusion that Section II.E. of JWR s Drug Program is facially
discriminatory. JWR further notes that neither the, Secretary nor
intervenor UMWA petitioned the Commission to review the judge s conclusion
that JWR's specific application of the drug program to Price and Vacha did
not violate section 105(c). Nor did the Commission sua sponte direct any
additional issues for review pursuant to section 113(d)(Z)(B). Therefore,
according to JWR, that portion of the UMWA s response brief arguing that
the judge erred in concluding that the drug program was not
discriminatorily applied raises an issue that was not brought before the
Commission in accordance with the governing statutory review scheme.

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Page 34

In opposition to JWR's motion to strike, the UMWA and the Secretary
make essentially the same arguments. They note that Price and Vacha
prevailed on their claim that Section 11.E. is facially discriminatory.
As a result, they assert that Price and Vacha were awarded the full measure
of the relief they sought including reinstatement, back pay, expungement of
personnel files and the cessation of enforcement of Section II.E. against
safety committeemen. Therefore, the Secretary and the UMWA submit, Price
and Vacha were not "adversely affected or aggrieved" by the judge's
decision within the meaning of section 113(d), and they lacked standing to
appeal the judge's denial of the "as applied"

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Page 35

~1539
theory of discrimination.

The Secretary and the UMWA further assert that the UMWA's brief
properly challenges the judge's findings and conclusions addressing whether
Section II.E. was discriminatorily applied to price and Vacha. They argue
that under settled principles of appellate review a party "may offer in
support of his judgment any argument that is supported by the record,
whether it was ignored by the court below or flatly rejected." Sec.
Response at 5, citing 9 Moore's Federal Practice. 204.11[3] at 4-45;
UMWA Response at 4-6. They submit that the argument in the UMWA's response
brief challenging the judge's "as applied" findings simply offers the
Commission an allowable alternative ground for affirmance of the judge's
decision in favor of Price and Vacha. My colleagues in the majority
embrace this theory, "adopting the general federal rule of appeal."
Slip op. at 9.

I disagree. As I read section 113(d) of the Mine Act, JWR's motion
to strike must be granted. Were the Commission operating within a more
traditional appellate review scheme, I would have little hesitation in
proceeding to address the additional issue raised in the UMWA's brief.
Under the federal rules of procedure and the case law relied on by the
Secretary and the UMWA, the filing of a cross-appeal, or the urging of
other error the correction of which offers an additional basis for
affirmance, would be appropriate vehicles for expanding the scope of the
issues on appeal. The problem, however, is that the Commission's review
authority differs substantially from that found in the typical appellate
review model. The unique statutory review scheme set forth in section
113(d) of the Mine Act more closely constrains the Commission's review
authority parties are not free to raise and the Commission is not free to
consider issues that have not been directed for review pursuant to section
113(d). 30 U.S.C. 823(d); Chaney Creek Coal Corp., supra; Phelps-Dodge
Corp., supra.

I cannot accept the Secretary's and the UMWA's explanation that they
are not seeking to have the Commission resolve an "additional" issue, but
are offering only an alternative ground in support of the judge's finding
of discrimination. Although the "facially violative" and "as applied"
theories were both offered to prove that price and Vacha had been
discriminated against under section 105(c)(1), the material facts and
relevant law bearing on these theories of discrimination are quite separate
and distinct. In its petition for discretionary review, JWR challenged
only the judge's findings and conclusions bearing on the "facially
violative" theory. To nevertheless proceed to review the correctness of
the judge's discussion concerning the "as applied" theory, as tempting as
it may be in terms of appellate convenience, is to ignore the constraints

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Page 36

of section 113(d). In this regard it is important to note that JWR has
identified some of its own disagreements with the judge's discussion
concerning the specific application of the drug program to Price and Vacha,
but JWR correctly acknowledges that these disagreements were not placed
before the Commission through its petition for review. JWR Motion to
Strike at 5.

For these reasons I would grant JWR's motion to strike Part III of
intervenor UMWA's brief.

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Page 37

~1540
ln my view, however, granting the motion to strike would not end the
Commission's deliberations concerning the procedural consequences of the
judge's statement that the specific application of the drug program to
Price and Vacha did not violate section 105(c) of the Mine Act. In its
motion to strike JWR asserts that Price and Vacha were "adversely affected
or aggrieved" within th+ meaning of section 113(d) by the discussion of the
"as applied" theory of discrimination contained in the judge's decision.
The implication of JWR's argument is that, because Price and Vacha did not
petition for review of the judge's "as applied" discussion, the judge's
conclusions in that regard are final and unreviewable. 30 U.S.C.
823(d)(1)

The Secretary and the UMWA counter by arguing that Price and Vacha
were not "adversely affected or aggrieved" because, in prevailing on their
"facially violative" theory, they had been awarded all of the relief they
had sought. They assert that Price and Vacha were fully satisfied by the
judge's award, were not injured thereby, and therefore lacked standing
under section 113(d) to obtain review of the judge's decision. Sec.
Response at 33-4; UMWA Response at: 5-6. I agree.

In the posture of the proceeding before us, the portion of the
judge's decision denying Price and Vacha's "as applied" theory of recovery
did not constitute a final, adverse disposition against Price and Vacha
within the meaning of section 113(d) of the Mine Act. The conclusive,
determinative holding by the judge was his conclusion that Price and Vacha
had been discriminated against by JWR in violation of section 105(c). It
was this holding that formed the basis for his award of remedial relief to
Price and Vacha and that caused a party, JWR, to be "adversely affected or
aggrieved". In the absence of any appeal of the judge's decision, only
JWR, not Price and Vacha, would have been damaged as a result of the
judge's decision. The judge's further discussion indicating that he would
deny the alternative theory of recovery was not essential to his finding of
liability and was unnecessary. Therefore, the judge's comments in this
regard did not adversely affect or aggrieve Price and Vacha within the
meaning of section 113(d).

---

As has been stated:

[T]he general rube is that a party who has obtained
full relief in the court below on a particular theory
or ground is not entitled to appeal from the judgment
to procure relief on other theories or grounds advanced
by him below.

Annotation, Right of Winning Party to Appeal from Judgment Granting him

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Page 38

Full Relief Sought, 69 A.L.R. 2d 701, 736-37 (1960). See also 1 Am. Jur.
2d Appeal and Error 185 (1962).

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Page 39

~1541
Accordingly, l would remand this proceeding to the administrative law
judge for entry of a final dispositional order concerning the "as applied"
theory of discrimination advanced by Price and Vacha. I would direct the
judge to allow the parties the opportunity to make any additional arguments
either in opposition to or in support of the discussion of the "as applied"
theory of discrimination set forth in his prior decision. Any party
adversely affected or aggrieved by the entry of the judge's final order on
remand could then petition the Commission for review of this aspect of his
decision.

For these reasons, I concur in part and dissent in part.

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Page 40

~1542
Chairman Ford, concurring in part and dissenting in part:

I join with my colleagues in reversing the judge's determination that
Jim Walter Resources' Drug Program is discriminatory on its face and
violative of section 105(c) of the Mine Act, 30 U.S.C. 815(c). As to the
automatic stay provisions of the Bankruptcy Code and the exceptions
thereto, I further concur that the instant proceeding falls within the
exceptions set forth in section 362(b) of the Code, 11 U.S.C. 362(b).
With respect to the majority's disposition of JWR's motion to strike
Part III of the UMWA's reply brief, I am constrained to reluctantly and
respectfully dissent in view of the tightly circumscribed scope of
Commission review set forth in section 113(d)(2) of the Mine Act, 30 U.S.C.
823(d)(2).

Although general federal appellate procedure may permit an appellee
to offer alternative grounds to support an ultimate judgment - even those
rejected by the judge below - the Mine Act by its clear terms constricts
that option here. Section 113(d)(2) of the Act states that "review shall
be limited to the questions raised by the petition" and that "the
Commission shall not raise or consider additional issues in such review
proceedings" unless it has complied with the procedures and criteria for
granting sua sponte review. (Emphasis added). The issue of whether JWR's
Drug Program was discriminatorily applied to Price and Vacha was not raised
in JWR's petition for discretionary review, nor was it directed for review
sua sponte. It arose solely as a component of the UMWA's reply brief filed
well outside the 30 day time limit for filing petitions under the Act.

The UMWA and the Secretary argue that they were not "adversely
affected or aggrieved by [the] decision" of the judge so that there was no
reason for them to file a petition for discretionary review. There is,
however, a distinction here between a "judgment", i.e., a favorable outcome
for the appellees, and the "decision" itself, and it is the term "decision"
to which section 113(d)(2) refers. In this instance the judge's decision
is composed of two distinct parts, each involving separate allegations of
discriminatory treatment, separate legal theories to support those
allegations, and separate modes of analysis to resolve the issues raised.
Indeed, one might argue that within the single docket the judge was
deciding two discrete cases: one generic case brought in the names of Price
and Vacha on behalf of all safety committeemen against the Drug Program as
designed (the "facially discriminatory" case), and one brought exclusively
by Price and Vacha and involving only their particular relationship to and
interaction with JWR and its Drug Program (the "discriminatorily applied"
case). In that context it cannot be said that the judge's decision with
respect to the latter case was not adverse to Price and Vacha. */

---

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Page 41

*/ The two matters were even tried somewhat separately. Price and Vacha
did not testify at the hearing on the merits. Testimony at that hearing on
behalf of the Secretary and the UMWA was predominately provided by safety
committee members or potential members who were not disciplined but who
testified to the inhibitive effects of the Drug

---

Page 42

~1543
Appellees also object .n practical grounds to the filing of
"protective" petitions for discretionary review by prevailing parties,
characterizing such a requirement as "meaningless", "cumbersome," and
"nonsensical." Given the time and treasure expended in this case, the odds
of JWR's appealing the "facially discriminatory" issue so as to place the
judge's determination thereon at risk were extremely high. In such
circumstances a protective petition for discretionary review would not have
been meaningless but would have been prudent. Furthermore, the judge's
decision was issued on August 26, 1988 and JWR's petition was filed on
September 20, 1988, thus leaving the Secretary, the UMWA, or both five days
to file a pro forma petition on the "discriminatorily applied" issue. In
any event, the procedural fault at issue lies with the restrictive review
scheme devised by Congress and both the Commission and the parties are
bound by it.

In summary, Part III of the UMWA's brief raises important issues and
compelling arguments. Unfortunately, at this juncture, I find no means by
which the Commission can resurrect the "discriminatorily applied" charge
when the statute limits our consideration to those issues contained within
the four corners of the only petition for discretionary review before us.
Chaney Creek Coal Comp. v. FMSHRC. 866 F.2d 1424, 1429 (D.C. Cir. 1989).

Accordingly, I would grant the motion to strike and dismiss the
proceeding.

---

Program generally and its impact upon their decisions to continue serving
as committeemen or to run for committee office. That testimony went only
to the "facially discriminatory" issue. The "discriminatorily applied"
issue was tried in the June 29, 1987 hearing on temporary reinstatement
wherein Price and Vacha testified to the specific circumstances under which
they were subjected to random drug testing under the Drug Program, their
history of activism as safety committeemen, and their perceptions of a
retaliatory link between the two. Secretary/Price and Vacha v. Jim Walter
Resources, Inc., 9 FMSHRC 1305 (August 1987).

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Page 43

~1544
Distribution

John W. Hargrove, Esq.
Bradley, Arant, Rose & White
1400 Park Place Tower
Birmingham, Alabama 35203

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005

Don M. Stichter, Esq.
Stichter & Reidel, P.A.
100 Madison Street
Tampa, Florida 33602

Edward LoBello, Esq.
Levin, Weintraub & Crames 225 Broadway
New York, New York 10007

Patrick K. Nakamura, Esq.
Longshore, Nakamura & Quinn
2101 City Federal Bldg.
Birmingham, Alabama 35203

Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041