Brent Coal Corporation

Plain-English summary

Alvin Casey claimed that Brent Coal Corporation laid him off because he refused to work under unsafe conditions. Judge James A. Broderick found that Casey's initial refusal to work before a seal was constructed was protected activity, but that Casey later quit after disputes about pay and a coworker, and did not prove that Brent Coal took adverse action against him. The judge concluded that a violation of the Mine Act's discrimination provision was not established. He dismissed the complaint and the proceeding.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 30 C.F.R. § 75.303
• Outcome: The discrimination complaint and proceeding were dismissed.
• Key point: Protected safety activity alone did not establish discrimination when the evidence showed the miner quit for other reasons.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. BRENT COAL
DDATE:
19870706
TTEXT:

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

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 86-45-D
ON BEHALF OF ALVIN CASEY,
COMPLAINANT

            v.

BRENT COAL CORPORATION,
RESPONDENT

                               DECISION

Appearances: Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant; Robert J. Breimann, Esq.,
and Joseph W. Bowman, Esq., Street, Street,
Street, Scott and Bowman, Grundy, Virginia, for
Respondent.

Before: Judge Broderick

                        STATEMENT OF THE CASE

 Complainant Alvin Casey contends that he was laid off from

his job as mine foreman with Respondent on August 15, 1985,
because he refused to work under unsafe conditions. Pretrial
discovery was initiated by both Complainant and Respondent.
Pursuant to notice, the case was called for hearing on March 10,
1987, in Bluefield, West Virginia. It was continued on March 31,
1987, in Bristol, Virginia. Respondent orally moved to dismiss
the complaint at the commencement of the hearing. The motion was
denied.

 Alvin Casey, James Church, Minnie Mae Church, Robert

Nichols, Arnold Carico, and Dorsey Evans testified on behalf of
Complainant. Paul Horn, Gary Lester, Terry Lee Taylor, Robert
Dale, and Billy Horn testified on behalf of Respondent. Both
parties have filed post hearing briefs. I have considered the
entire record, and the contentions of the parties and make the
following decision.

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FINDINGS OF FACT

 Complainant Alvin Casey worked for Respondent as a coal

miner for approximately two years. He worked for other mines
operated by Respondent's President, Billy Horn, for about 10 or
11 years of the approximately 13 years he worked in the coal
mining industry. He worked as a shot fireman, roof bolter
operator, cutting machine operator and mine foreman. He was
certified as a shot fireman, but was not certified as a mine
foreman. He has a fifth grade education, and a very limited
ability to read. During his last several months with Respondent,
Casey worked as a foreman on the second shift. The second shift
was supposed to be a maintenance shift, but coal was produced
about 80 percent of the time. Casey was paid $8.75 per hour, and,
because he acted as foreman, received pay for 9 hours although he
worked only eight.

 Respondent was the owner and operator of the subject mine.

The mine was developed through three old abandoned mines.
Respondent was given permission by MSHA to go through the old
workings and develop them into an active mine. Seals were
constructed and ventilation provided. The mine was ventilated by
an exhaust fan, pulling intake air across the working face, and
down the return air course, exiting the mine at the fan. In
August 1985, there were nine working headings, being mined on a
left to right cycle. The intake air and return air were separated
by permanent stoppings erected in crosscuts as the mining cycle
progressed. The coal was removed by belt.

 The mine was 30 to 34 inches in height. It produced from

30,000 to 50,000 tons of coal annually. The maximum number of
employees was fourteen. During the two year period prior to
August 14, 1985, forty seven violations were paid by Respondent,
eighteen of which were denominated significant and substantial.

 On August 6, 1985, on the day shift, a scoop cut through in

the Number 3 heading to an old abandoned mine. The cut through
occurred approximately 70 feet inby the last open crosscut. The
day shift foreman, Gary Lester, called Respondent's President,
Billy Horn, who directed him to withdraw the miners from the area
to the intake side. Horn went into the mine with a flame safety
lamp and methane detector. He crawled down the Number 3 heading
and into the abandoned mine. He did not detect any methane or
oxygen deficiency at the mouth of the heading. After proceeding
30 to 40 feet into the abandoned mine, the flame on the flame
safety lamp diminished slightly, showing some oxygen deficiency.
He returned to the mouth of the heading. After checking the
ventilation, he instructed the men to stay on the intake air
side, and began assembling material to construct a seal. Casey
testified that when he arrived at the mine for the second shift,

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Horn told him that he was ill, because "he got a whiff of bad air
from where he cut into that old abandoned mines." (Tr. I, 32.)
Horn denied making the statement and denied having become ill. I
accept Horn's testimony on this matter and reject Casey's. Casey
hung a flame safety lamp at the mouth of the Number 3 Entry, and
his crew worked in Entries 4 through 9. Casey testified that he
went up Entry 3 about 20 feet and his flame safety went out. This
testimony was not corroborated by James Church who was present at
the time.

 A seal was constructed the next day (August 7) on the day

shift by Gary Lester. The seal was built of cement block and
mortar approximately 10 feet outby the cut through, which had
been filled with rock and debris from the mine before the seal
was commenced. The seal was airtight. After the seal was
completed, the day shift began to fill the entry outby the seal
with stone, rock and mine debris, to protect the seal, according
to Horn, from being struck by mine equipment. This work (called
"gobbing" the area) was not completed during the day shift on
August 7. Horn testified that he told Casey of the seal and
instructed him to continue the gobbing outby the seal. Casey
denies that he was told of the seal or that he knew of it. He
testified that he could see through the heading into the old
abandoned mine for "a couple or three days after" the cut
through. (Tr. I, 41.) On this issue I accept the testimony of
Horn and Lester that a seal was constructed on August 7. I find
Casey's testimony not credible. I also find that Casey was told
that the seal had been built. James Church, who worked under
Casey, testified that he was told of the seal. (Tr. I, 96.)
Casey's crew did some gobbing of the area outby the seal on
August 7. The gobbing was completed during the first shift on
August 8, and a mud plaster seal was constructed at the mouth of
the No. 3 heading. A flame safety lamp was maintained in the
vicinity of the No. 3 heading. The construction of the seal did
not conform to the approved sealing plan for the mine in that a
test pipe was not constructed to test the mine atmosphere behind
the seal. Further, because of the gobbed area outby the seal, it
was not possible to inspect the integrity of the seal daily as
MSHA regulations require.

 On or about August 5, 1985, Casey approached Horn and asked

for a raise in pay. Casey said he had another job, and would quit
if he did not get a raise. Horn told him that the company's
financial circumstances would not allow him to give Casey a
raise. Casey renewed his request on August 12, and was told that
nothing could be done at the time, but perhaps later on he could
be given a raise. Casey stated he had another job as soon as the
prospective employer obtained a continuous miner which was on
order. On August 14, at the conclusion of the day shift, Gary
Lester told Casey that a scoop was broken down and he would

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need to use the man trip to bring repair parts to the No. 2
heading where the scoop was located. Casey's crew entered the
mine and found that the cutting machine was between heading two
and three. Casey found that the cable in the supply box had been
shortened (apparently by Lester), and ordered his crew out of the
mine. The shortening of the cable by Lester had occurred
previously and upset Casey. I find as a fact that Casey did not
indicate that he was withdrawing the crew because he was
concerned about "bad air" in the mine, or that he was afraid to
proceed to the No. 2 heading, but rather because he was upset on
account of the cable. Horn was not at the mine that day. The
following day, August 15, Casey came to the mine early in his
street clothes. Horn asked him why he withdrew his crew, and
Casey replied that he could not work with Gary Lester anymore and
that he quit. I find that Casey did not complain to Horn about
bad air. He asked Horn for a lay off slip in order to draw
unemployment benefits until he was called to work on his new job.
Casey did not return to Respondent's mine after that date.

 On about August 22, 1985, Respondent's pillaring plan was

approved by MSHA, and the miners began to remove pillars. In
about 3 or 4 weeks, the pillars were all removed, and the mine
was abandoned.

 Casey received unemployment compensation after a hearing

before the state employment security agency. He began working for
H & H Coal Company about 9 weeks after leaving Respondent. He
worked with H & H about 8 days before quitting because he
"couldn't stand to work in the low coal." (Tr. I, 50.) The coal
seam at H & H was about 24 inches high. He has not worked since
leaving H & H.

                             ISSUES

 1. Was claimant subjected to adverse action by Respondent

for activity protected under the Act?

 2. If he was, to what remedies is he entitled?

                       CONCLUSIONS OF LAW

                          JURISDICTION

 Respondent was subject to the Act in the operation of the

subject mine. Complainant Casey was a miner and protected by
Section 105(c) of the Act. Respondent is a small operator and has
an average history of prior violations.

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PASULA RULE

 Under the Act, a miner can establish a prima facie case of

discrimination by showing that he 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, 663 F.2d 1211 (3rd Cir.1981);
Secretary/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 took place, or that the adverse
action was not motivated in any part by the protected activity. A
miner has the right to refuse to work if he has a good faith
reasonable belief that the work is hazardous. Pasula, supra,
Simpson v. Kenta Energy, Inc., 7 FMSHRC 1034 (1986). Such refusal
is activity protected under the Act.

                       PROTECTED ACTIVITY

 The cut through to the old mine created a potentially

hazardous condition on the return air side (headings 1, 2 and 3)
in the subject mine. Claimant's refusal to work in headings 1, 2,
and 3 on August 6 and 7, 1985, before the seal was constructed,
was therefore protected. I have found as a fact that Casey was
informed that the seal was constructed. Although the seal did not
conform to MSHA requirements, or the provisions of 30 C.F.R.
75.303 (requiring a daily examination of seals), I have found as
a fact that Casey and his crew worked in the first three headings
between August 8 and August 14. Therefore, I conclude that he did
not refuse to work because of a good faith, reasonable belief
that the work was hazardous.

                         ADVERSE ACTION

 I have found that Casey quit his employment and was not

discharged. I also conclude that he was not constructively
discharged because of intolerably unsafe working conditions. See
Simpson v. Kenta, supra. The evidence shows that he quit because
he thought he deserved a raise, because of disputes with Gary
Lester, and because he believed that he had a better job lined
up. Therefore, I conclude that he was not subjected to adverse
action under the Act.

                     MOTIVATION-CREDIBILITY

 The critical issue in this case is why Casey left the

Respondent's employ. Was it because he feared that his safety and
the safety of his crew were jeopardized by the threat of bad air
coming from the old works? Or was it because he was denied a
raise, and did not get along with his fellow-foreman Gary Lester?

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The resolution of this issue depends almost entirely on the
credibility of Casey and of Horn. I have found Casey's denial
that he knew of the seal not credible: Church who worked under
Casey was told of it and worked in the return headings after the
seal was constructed, as did others on Casey's crew. Casey's
testimony that he could see from the mouth of the heading into
the old mine (more than 70 feet away) for 2 or 3 days after the
cut through is inherently incredible. I have found the testimony
of Billy Horn, Respondent's President to be credible concerning
Casey's statements when he left his job and prior thereto. For
these reasons I find that Complainant Casey was not subjected to
adverse action by Respondent because of activity protected under
the Act. A violation of section 105(c) has not been established.

                             ORDER

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

the complaint and this proceeding are DISMISSED.

                             James A. Broderick
                             Administrative Law Judge