IMC Fertilizer, Inc.

Plain-English summary

John Van Allen, an electrician at IMC Fertilizer's Noralyn Mine and Mill, refused to install a NEMA Type 1 junction box in an area he believed was wet and unsafe. He was suspended for 35 hours, and the Secretary of Labor brought a Mine Act discrimination complaint on his behalf. Judge Gary Melick found that the continued refusal was not based on a good-faith, reasonable belief in a hazardous condition because IMC offered materials to make the box watertight and the alleged danger was remote. The judge concluded that the suspension did not violate section 105(c) and dismissed the complaint. The decision notes that the cited junction-box condition was later settled without IMC admitting or denying a violation.

Decision snapshot

• Cited standards: 30 U.S.C. §§ 815(c)(1) and 815(c)(2); 30 C.F.R. § 56.12030
• Outcome: The discrimination complaint was dismissed.
• Key point: A work refusal is not protected when the miner's continued refusal is not based on a good-faith, reasonable belief in a hazard.

Full text (FMSHRC public release)

+CCASE:
SOL (MSHA) V. IMC FERTILIZER
DDATE:
19911219
TTEXT:

Page 2

~1951
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 91-543-DM
ON BEHALF OF
JOHN VAN ALLEN, Noralyn Mine & Mill
COMPLAINANT

      v.

IMC FERTILIZER, INC.,
RESPONDENT

                          DECISION

Appearances: Glenn M. Embree, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia for the
Complainant;
Daintry E. Cleary, Esq., Holland & Knight, Tampa,
Florida, for the Respondent.

Before: Judge Melick

 This case is before me upon the complaint by the Secretary

of Labor on behalf of John Van Allen, pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq., the "Act," alleging that IMC Fertilizer,
Inc., (IMC) suspended Mr. Van Allen on February 9, 1990, in
violation of section 105(c)(1) of the Act.1 More particularly

Page 3

~1952
it is alleged that Van Allen, employed by IMC as an electrician,
refused on February 9, 1990, to install a NEMA Type 1 electrical
junction box in an unsafe location.2 Van Allen maintains that
as a result of such refusal he was unlawfully suspended from work
for 35 hours. He seeks expungement from his employment records of
reference to this suspension and back pay and interest for lost
wages. The Secretary also seeks a civil penalty of $1,500 for the
alleged violation.

 Van Allen has had several years of vocational training

including a 2-year program at a technical school in electrical
subjects. He is a licensed electrician in Polk County, Florida,
and in the City of Lakeland, and has been performing electrical
work for about 9 years. As an electrician for IMC, he was sent on
February 9, 1990, to install a junction box on a high voltage
motor in the Noralyn Mill Flotation Plant. A junction box is an
enclosure that provides mechanical protection for electrical
connections. In this case it was used to enclose a capacitor and
wire leads exiting the motor and connecting with the conduit and
wiring.

 In the flotation plant impurities are separated from the

phosphate product. It is a five to six story structure with open
and partially steel grated floors. The mine product enters the
plant at an upper level and sand and other impurities settle to
the bottom of the flotation tanks while the phosphate ore floats
to the top. When the plant is in operation large volumes of water
are used and water pours through the gratings to the area below
-- including the area in which the junction box was to be
installed. The area is also periodically cleaned with water from
high pressure hoses. There seems to be general agreement that the
area is therefore usually wet.

 On February 9, 1990, the plant was on a maintenance day and

not in operation. At the assigned location the motor was also
locked out by Van Allen so that it could not have been accidently
energized. Van Allen then removed the existing NEMA Type 4
junction box. He then noticed that the replacement box he was
provided was not what he deemed to be of the correct NEMA
classification. It was a NEMA Type 1 box having openings in its

Page 4

~1953
corners and was not waterproof. According to Van Allen if water
and feed material were to accumulate around the open lugs and if
a ground should become broken, an employee touching the motor or
box could be electrocuted.

 Van Allen testified that he had been trained in the NEMA

classifications and observed that a NEMA Type 1 box is an indoor
box which should not be exposed to rain, dust, or water
conditions. A NEMA Type 4 box on the other hand is designed for
outdoor use and for wet conditions. Concerned about the use of a
NEMA Type 1 box under the circumstances, Van Allen contacted
electrical foreman Rainer Theiss, and advised him that the NEMA
Type 1 box was not suitable for the noted location and that he
needed a NEMA Type 12 box.3 Theiss did not then order Van
Allen to install the Type 1 box but told him only to continue to
prepare the box for installation.

 Subsequently, when Van Allen went to the electrical shop for

parts, he met with Steve Davis, the IMC maintenance
superintendent in Davis' nearby office. After explaining the
problem to Davis, Davis agreed that Van Allen could use anything
to make the NEMA Type 1 box safe in Van Allen's opinion,
apparently suggesting the use of tape and a sealant. Van Allen
admits that he could thereby have made the box waterproof but
agreed to do this only on a temporary basis until such time as a
NEMA Type 4 or Type 12 box could be obtained and installed.
According to Van Allen, he would thereby "give them the
opportunity to get their plant back into operation and a correct
box [could] be later installed." Van Allen refused to do this
however, when Davis purportedly stated that it would have to be
on a permanent basis.

 Curtis Wilson, an electrician's helper, was assisting Van

Allen when the issue arose. After Van Allen refused to install
the NEMA Type 1 box, he told Wilson to locate electrical foreman
Theiss. According to Wilson when Theiss later arrived, Theiss
told Van Allen that it was the correct box and ordered him to
install it. Van Allen refused and asked for a "safety man,"

Page 5

~1954
purportedly a procedure under the union contract. Van Allen then
agreed to "prep" the box but still refused to install it.

 Wayne Scott, another IMC electrician, accompanied Theiss to

this meeting with Van Allen. He overheard Van Allen state that he
would perform any other work but would not install the NEMA Type
1 box. Jim Mathis, another IMC electrician, also heard the
conversation between Van Allen and Theiss. Mathis added that Van
Allen also stated during the conversation that if Theiss insisted
that he install the box, he wanted a "safety man." Theiss then
told Mathis to leave the area and he did.

 On February 22, 1990, Harry Verdier, an inspector for the

Federal Mine Safety and Health Administration (MSHA), examined
the NEMA Type 1 junction box that had later been installed at the
location at issue and observed that it had been caulked in an
apparent attempt to waterproof it. He cited the box under the
mandatory standard at 30 C.F.R. 56.12030 because he thought in
a curious shift in the burden of proof, that it could not be
proven to be waterproof.4 Even though he apparently believed
the box not to have been waterproof he nevertheless did not
believe that the cited box created either an "imminent danger" or
a "significant and substantial" hazard but rather concluded that
an injury or illness was "unlikely" (See Exhibit C-5A).5

 IMC Maintenance Superintendent Steve Davis is a graduate

electrical engineer and has significant experience in electrical
installations and maintenance. According to Davis, a junction box
is merely an enclosure for the leads from the motor and to the
conduit from the electric starter. It provides mechanical
protection for the wires. According to Davis, there was no need
for a waterproof NEMA Type 4 or 12 box at the cited location and
he noted that in any event whatever type box was used it would be
mounted onto the motor with only a sealant for waterproofing.
Thus it is implied that if a sealant was adequate for mounting,
it should also be adequate to waterproof the box itself-- as was
done here. Davis also opined that the cited box was satisfactory
in any event since it was caulked, sealed and watertight. He also
noted that if water should accumulate in a junction box nothing
would happen in any event because the connections inside were
protected with waterproof tape.

Page 6

~1955
Davis testified that around 11:00 a.m., on February 9, Theiss
called advising him that Van Allen was refusing to install a
junction box and had become belligerent insisting that he would
not install "this piece of shit." Davis testified that before
making a decision on the issue, he wanted to talk to Van Allen
and determine for himself what the problem was. Subsequently Van
Allen came into his office and restated his refusal to install
the NEMA Type 1 box. Davis testified that he told Van Allen that
with their taping standards, it would be weather proof and told
him to therefore go ahead and install the box. Van Allen
continued in his refusal and asked for the "third step of the
grievance procedure." Davis then conferred with electrical
superintendent Jim Adair, also an electrical engineer. Adair
suggested that Van Allen be permitted to make the box watertight
to his own satisfaction.

 Davis then returned to his office and presented Van Allen

the option that "if you feel like it needs to be a watertight
box, I'll buy you the materials or whatever you want to make this
a watertight box." According to Davis, Van Allen responded that
"he did not know if that was good enough" and continued his
refusal to install the box. According to Davis, both Jim Adair
and Bob Myers, another electrical engineer he consulted, found
that using the NEMA Type 1 box would be safe under the
circumstances. Davis testified that after obtaining these
additional opinions, he again met with Van Allen and told him
that he was being suspended for his refusal to install the
junction box.

 Rainer Theiss, IMC electrical foreman testified that

February 9, was a scheduled repair day and that the electrical
power was accordingly disengaged. According to Theiss, Van Allen
first contacted him by telephone advising him in reference to the
Type 1 box that "I don't mount that piece of shit." When they
later met, Van Allen told him that it was not the right box and
that he would not mount it. Theiss acknowledged that Van Allen
expressed that it was a safety concern and admitted that he did
not know the difference between the NEMA Type 1 and NEMA Type 4
classifications.

 Marvin Wolgast the IMC industrial relations manager

testified that Van Allen was given six points for discipline as a
result of his refusal to install the junction box and, as a
result of a three-point prior disciplinary record, was subject to
suspension.

 In order to establish a prima facie violation of section

105(c)(1) the Complainant must prove by a preponderance of the
evidence that he engaged in an activity protected by that section
and that his suspension was motivated in any part by that
protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980) rev'd on other

Page 7

~1956
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (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 by the
protected activity. Failing that, the operator may defend
affirmatively against the prima facie case 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 so-called Pasula-Robinette
test). See also Donovan v. Stafford Constr. Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983).

 Within this general framework, it is also well-established

that in certain circumstances a miner's refusal to work
constitutes protected activity. Pasula, supra, Robinette, supra;
Miller v. FMSHRC, 687 F.2d 1994 (7th Cir. 1982); Simpson v.
FMSHRC, 842 F.2d 453 (D.C. Cir. 1988). The genesis for the
recognition of certain work refusals as protected activity is the
Senate Report on the 1977 Act, which endorsed a miner's right to
refuse "to work in conditions which are believed to be unsafe or
unhealthful." S. Rep. No. 91, 95th Cong., 1st Sess. 35 (1977).

 In order to be protected, work refusals must be based upon

the miner's "good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC 812; Gilbert v. FMSHRC, 866 F.2d
at 1439. The complaining miner has the burden of proving both the
good faith and the reasonableness of his belief that a hazard
existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of
Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief
"simply means honest belief that a hazard exists." Robinette at

810. This requirement's purpose is to "remove from the Act's
     protection work refusals involving frauds or other forms of
     deception." Id. The Commission has rejected a requirement that
     miners who refuse to work must objectively prove that hazards
     existed. The miner must simply show that his perception was a
     reasonable one under the circumstances. Haro v. Magma Copper co.,
     4 FMSHRC 1935 (November 1982); Robinette, supra. In determining
     whether the miner's belief was reasonable under the
     circumstances, the judge is to look to the miner's account of the
     conditions precipitating the work refusal, and to the operator's
     response in order to evaluate the relevant testimony as to
     "detail, inherent logic and overall credibility." Robinette, 3
     FMSHRC at 812. The perception of a hazard must be viewed from the
     miner's perspective at the time of the work refusal. Secretary on
     behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529
     (September 1983); Haro, supra. The Commission has eschewed the
     setting of a bright line threshold of severity in determining
     "how severe a hazard must be in order to trigger a miner's right
     to refuse work" Pratt v. River Hurricane Coal Co. at 1533,
     instead it has preferred to resolve that issue on a

Page 8

~1957
case-by-case basis. Id., See also, Price v. Monterey Coal Co., 12
FMSHRC 1505 (1990).

 At issue herein is a work refusal based on an asserted

safety hazard to miners other than the complainant himself. In
Secretary on behalf of Philip Cameron v. Consolidation Coal Co.,
7 FMSHRC 319 (March 1985), aff'd sub nom. Consolidation Coal v.
FMSHRC, 795 F.2d 364 (4th Cir. 1986), the Commission held that
"in certain limited circumstances," the protection of section
105(c) of the Mine Act does attach to a work refusal premised on
hazards to others:

      Therefore, we hold that a miner who refuses to perform
      an assigned task because he believes that to do so will
      endanger another miner is protected under section
      105(c) of the Mine Act, if, under all the
      circumstances, his belief concerning the danger posed
      to the other miner is reasonable and held in good
      faith. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411,
      1418 (June 1984), citing Secretary on behalf of
      Robinette v. United Castle Co., 3 FMSHRC at 807-12. We
      emphasize, however, the need for a direct nexus between
      performance of the refusing miner's work assignment and
      the feared resulting miner's work assignment and the
      feared resulting injury to another miner. In other
      words, a miner has the right to refuse to perform his
      work if such refusal is necessary to prevent his
      personal participation in the creation of a danger to
      others. Of course, as with other work refusals, it is
      necessary that the miner, if possible, "communicate, or
      at least attempt to communicate, to some representative
      of the operator his belief in the . . . hazard at
      issue," Sammons v. Mine Services Co., 6 FMSHRC 1391,
      1397-98 (June 1984) (emphasis added), quoting Secretary
      on behalf of Dunmire and Estle v. Northern Coal Co.,
      supra, 4 FMSHRC at 133, and that the refusal not be
      based on "a difference of opinion -- not pertaining to
      safety considerations -- over the proper way to perform
      the task at hand." Sammons, 6 FMSHRC at 1398.

 I find, under the circumstances of this case, that while Van

Allen could otherwise have properly asserted a work refusal
premised on a hazard to others, his work refusal was not a
reasonable one nor one made in good faith and therefore was not
protected by section 105(c) of the Act. Consequently, IMC did not
violate the Act by suspending Van Allen under the terms of its
disciplinary policy. I reach this conclusion initially on the
basis that the "hazard" presented to Van Allen was not
sufficiently serious or imminent to support the credibility of a
reasonable and good faith belief in a hazard sufficient to
warrant his continued refusal to comply with orders to install
the NEMA Type 1 junction box.

Page 9

~1958
While the Respondent's experts denied there would have been any
hazard the Complainant himself described what appears to be an
unlikely scenario necessary to create a hazard in the following
colloquy:

      THE COURT: And what would happen if water got into the
      box during operation of the plant?

      THE WITNESS: A mixture of water and feed on a delta
      system, it could build up to one side of the capacitor
      that was mounted -- would be mounted inside of it.

      THE COURT: You say feed, f-e-e-d?

      THE WITNESS: Yes, sir, phosphate feed.

      THE COURT: That's the material that you say is dripping
      down from the upper parts of the structure?

      THE WITNESS: Correct.

      THE COURT: All right. And it's mixed with water?

      THE WITNESS: Correct.

      THE COURT: All right. And that could do what?

      THE WITNESS: It could cause it to wash into the box,
      build up to one side, and hit the open lugs of the
      capacitor.

      THE COURT: Open lugs, did you say?

      THE WITNESS: Yes, sir.

      THE COURT: What would happen then?

      THE WITNESS: At that point as long as the frame ground
      was good in the motor, really nothing, as long as it
      only had one leg.

      If somebody came and broke that frame ground for any
      reason, then he would become the potential. He would
      get between the 2300 and go to ground. And it could --
      I would say would --

      Q. (By Mr. Embree). It would do what?

      A. It would do a lot of damage to him, if not kill him.
      It would probably become fatal to him. (Tr. 52-53).

Page 10

~1959
The necessary combination of events to create a hazard is even
more remote when considering the credible testimony of IMC
expert, electrical engineer Davis. Davis testified that any water
dripping into the Type 1 box would drain right through because of
its holes and that the leads inside would customarily be sealed
with waterproof tape. Indeed even the MSHA inspector called as a
witness by the Complainant, who cited the subsequently installed
Type 1 box as not being waterproof, concluded that the condition
was not "significant and substantial" and that injuries were
"unlikely."

 However, even assuming, arguendo, that Van Allen initially

entertained a good faith and reasonable belief in a potential
hazard, upon communicating such information to IMC officials the
perceived danger was addressed by IMC. According to Van Allen
himself, he could have made the NEMA Type 1 box waterproof and
presumably safe to his satisfaction in order to enable the plant
to resume operations. Indeed Maintenance Superintendent Davis
offered Van Allen the opportunity to get whatever supplies he
deemed necessary to make the box safe. Van Allen's refusal to do
this shows clearly that his continued work refusal then was
neither reasonable nor made in good faith. The Commission has
made clear that a work refusal cannot be based on a mere
difference of opinion not pertaining to safety considerations,
over the proper way to perform the task at hand i.e. providing a
water proof junction box. Sammons, 6 FMSHRC at 1398.

 Under the circumstances, it is clear that Van Allen did not

then entertain a good faith or reasonable belief in a hazard to
warrant his continued work refusal. Accordingly, the Complaint
herein must be dismissed.

                             ORDER

    The Complaint of Discrimination is dismissed.

                                     Gary Melick
                                     Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

    1. Section 105(c)(1) of the Act provides as follows:

      "No person shall discharge or in any manner

discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to
this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or
related to this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the miners at
the coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under a

Page 11

standard published pursuant to section 101 or because such miner,
representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in
any such proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this Act."

 2. NEMA (National Electrical Manufacturers Association)

classifications explained in Exhibit C-2 provide a uniform
industrywide system of classification for electrical enclosures.

 3. It is not disputed that a NEMA Type 12 box, just as a

NEMA Type 4 box, would provide water protection under the NEMA
classifications. See Exhibit C-2. None of the classifications
would appear on their face to be applicable to the enclosure at
issue herein since it was for a 2300 volt motor and the cited
standards are limited to enclosures for electrical equipment of
"1000 volts maximum." It is also noted that compliance with NEMA
standards is not required at this plant, that the Federal Mine
Safety and Health Administration (MSHA) does not enforce the NEMA
standards and nothing in the cited standards prohibits the
installer of a Type 1 enclosure from providing his own sealant
and waterproofing.

 4. 30 C.F.R.   56.12030 provides that "[W]hen a potentially

dangerous condition is found it shall be corrected before
equipment or wiring is energized."

 5. The citation was subsequently settled by agreement in

which IMC neither admitted nor denied the violation (Exhibits R-6
and R-7).