Reco, Inc.

Plain-English summary

Brothers Dillard and Lonnie Smith worked for Reco, Inc. servicing mine batteries, including in underground coal mines. They refused an assignment to work underground because Dillard's required training had expired and Lonnie had not received underground training, and their foreman told each to leave. Judge James A. Broderick found that the refusals were reasonable and protected, but that neither complainant communicated the safety concern to Reco in time to satisfy the governing test. The discrimination complaints were dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), 825, 802(d), and 802(g)
• Outcome: The discrimination complaints were dismissed, and no section 105(c) violation was established.
• Key point: A reasonable refusal to perform untrained underground work was protected activity, but the complaints failed because the miners did not timely communicate their safety concerns to the operator.

Full text (FMSHRC public release)

CCASE:
LONNIE SMITH V. RECO & DILLARD
DDATE:
19861017
TTEXT:

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

LONNIE SMITH, DISCRIMINATION PROCEEDINGS
COMPLAINANT
Docket No. VA 86-7-D
v.

RECO, INC.,
RESPONDENT

DILLARD SMITH, Docket No. VA 86-9-D
COMPLAINANT

      v.

RECO, INC.,
RESPONDENT

                               DECISION

Appearances: Hugh F. O'Donnell, Esq., Client Centered Legal
Services of Southwest Virginia, Inc., Castlewood,
Virginia, for Complainant Lonnie Smith;
William B. Talty, Esq., Talty & Gillette, Tazewell,
Virginia, for Complainant Dillard Smith;
Robert B. Altizer, Esq., Gillespie, Hart, Altizer
& Whitesell, Tazewell, Virginia, for Respondent.

Before: Judge Broderick

STATEMENT OF THE CASE

 Complainants Lonnie Smith and Dillard Smith, brothers, were

employed by Respondent Reco, Inc. (Reco) from about 1977 until
November 26, 1985. Each claims that on the latter date he was
discharged because of activity protected under the Federal Mine
Safety and Health Act (the Act). Because the two complaints arose
out of the same incident or incidents, the two cases have been
consolidated for the purposes of hearing and decision. Pursuant
to notice, the cases were called for hearing on July 8, 1986 in
Bluefield, West Virginia. Dillard Smith and Lonnie Smith
testified for Complainants; Steve Williams and Don Bowman
testified on behalf of Respondent. All parties were afforded the
opportunity to file post hearing briefs. Respondent filed a
brief; Complainants did not. I have considered the entire record
and the contentions of the parties, and make the following
decision.

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FINDINGS OF FACT

 1. On November 26, 1985, Respondent was in the business of

selling and servicing mine batteries. Part of its business
required it to go into underground coal mines to service
batteries.

 2. Complainants Dillard and Lonnie Smith were employed by

Respondent beginning in 1977 or 1978. Their duties were to
service and maintain mine batteries. Dillard Smith had prior
experience working with mine batteries, but Lonnie Smith did not
have such prior experience. Neither of them worked in underground
coal mines prior to working for Respondent.

 3. Both Dillard and Lonnie Smith were required at times to

work repairing batteries in underground coal mines. During 1985,
Dillard worked approximately 49 hours, and Lonnie worked
approximately 50 hours in underground mines. Each performed more
than 40 hours of underground work in the 6 months prior to the
termination of their employment.

 4. Dillard was paid $6.75 per hour as of November 26, 1985.

Lonnie was paid $6.35 per hour. Each received an additional $2.00
per hour while working underground in coal mines. They each
worked approximately 40 hours per week.

 5. In November 1979, Dillard Smith received MSHA approved

training for underground work and received a certificate upon
completion of the course. He did not have any refresher training
nor any other training related to working underground after
November 1979.

 6. Lonnie Smith never received any training related to

working in underground mines.

 7. In June 1985, Dillard Smith asked Steve Williams his

foreman, about refresher training for himself, and about training
for Lonnie. Williams nodded but did not reply. Dillard had
inquired at an MSHA office and was told that his training
certificate had expired, and he needed 40 hours additional
training.

 8. On some occasions Dillard and Lonnie Smith were

accompanied by mine personnel when they serviced batteries in
underground mines. On other occasions they worked alone.

 9. On November 26, 1985, Dillard and Lonnie Smith were

working on batteries at Respondent's shop. At about 9:00 a.m.,
Steve Williams approached and told Dillard that he had a service
call. Dillard asked if it was in an underground mine and

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Williams said it was. Dillard told Williams that he was not
going. Williams then said: "Change your clothes and you know
where the door's at." (Tr. 31). Dillard changed from his work
uniform, turned in his car keys and credit card and left the
premises. Neither he nor Williams said anything further.

 10. After Dillard left, Williams turned to Lonnie Smith.

Lonnie said he was not going underground anymore. Williams told
him to get his clothes and hit the door. Lonnie then left.

 11. Dillard Smith applied for unemployment compensation

after he left Reco. He drew benefits for 26 weeks. His health
insurance policy was terminated on the day he left. He returned
to the mine site on November 26, 1985 to get his paycheck. He was
told by the office secretary that it had been mailed the previous
day. He did not contact or attempt to contact any other Reco
official concerning his termination. He told the office secretary
to inform Jack Pyott, the company president, that he left because
he did not want to go underground because his training had
expired. Dillard began working for a janitorial service company
about July 1, 1986. He is earning $3.35 per hour and works 30
hours per week.

 12. Lonnie Smith was unemployed for 5 months after leaving

Reco. He has worked since, setting up house trailers and earns
$4.50 per hour. His health insurance was cancelled when he left
Reco and in December, 1985 he and his family incurred medical
bills totalling approximately $600.

 13. Lonnie Smith never complained to Reco about his lack of

training. He did not tell anyone at Reco why he refused to go
underground.

 14. On November 26, 1985, Reco decided to terminate its mine

battery sales and service business. The decision followed a
discussion with the State of Virginia Labor Department officials
concerning a list of health and safety violations cited following
an August, 1985 inspection. The State officials agreed not to
issue citations if Reco terminated its mine battery business
within a week. The company agreed and the business was terminated
December 6, 1985.

 15. Respondent continued in business after December 6, 1985

solely to sell its spare parts inventory and make deliveries on
repairs completed prior to December 6. Foreman Steve Williams was
laid off December 18, 1985, as was the office secretary. One
other employee remained until March, 1986 helping to clean the
building, trying to get it ready for sale or lease. At the time
of the hearing, the only people on Reco's payroll were

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Don Bowman, Vice-President-General Manager and a person who
cleans the office, working about 2 hours a week.

ISSUES

 1. Whether Complainants were miners and Respondent an

operator under the Federal Mine Safety and Health Act?

 2. Whether Complainants were discharged because of activity

protected under the Act?

3. If so, to what relief are Complainants entitled?

CONCLUSIONS OF LAW

A. Jurisdiction

    1. Respondent was an "operator" to the extent that it
performed services at coal mines and, as such, was
subject to the provisions of the Mine Safety and Health
Act.

   Section 3(d) of the Act defines operator as "any owner,
lessee, or other person who operates, controls or
supervises a coal or other mine or any independent
contractor performing services or construction at such
mine."

   2. Complainants were "miners" to the extent that they
worked in coal mines. (Section 3(g) of the Act.)
Whenever Complainants went to coal mines to service
batteries, they were miners, and were protected by the
Act.

   3. Insofar as Respondent was an operator and
Complainants were miners, I have jurisdiction over them
and the subject matter of this proceeding.
Respondent's entire business involved the sales and
servicing of mine batteries for coal mines. Although
most of its work was performed at its own facilities,
the work it did at the mine sites was not "rare and
remote" as was that of the electric power company in
Old Dominion Power Company v. Donovan, 772 F.2d 92 (4th
Cir.1985). When Respondent's employees went into
underground coal mines, they were subject to the same
hazards as miners who produced coal. They are entitled
to the same protection under the Mine Act.

B. Protected Activity

   1. Complainants' refusal to perform underground work
because they had not received mandatory health and
safety training was activity protected under the Act.

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A miner has the right under section 105(c) of the Act to refuse
to work, if he has a good faith, reasonable belief that it is
hazardous. Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (1980), rev'd on other grounds sub. nom. Consolidation Coal
Co. v. Marshall, 633 F.2d 1211 (3rd Cir.1981);
Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 803
(1981); Simpson v. Kenta Energy, Inc., 8 FMSHRC 1034 (1986).

 Section 115 of the Act requires each operator to have a

health and safety training program which must provide as a minimum
that miners with no underground experience receive no less than 40
hours of training if they are to work underground, and all miners
shall receive no less than 8 hours of refresher training every 12
months. Complainants' refusal to work underground without the required
training was therefore reasonable, and there is no evidence that it
was other than in good faith.

 I do not determine in this proceeding whether Respondent is

responsible for providing the requisite training for its employees.
Respondent contends that if a violation occurred, it is that of the
mine operator, not Respondent. But in either case, training was not
provided, and Complainants were justified in their refusal to work
underground without it. See Secretary/Robinette, supra.

C. Adverse Action

1. Complainants were discharged because of their refusal to work

underground.

 Respondent contends that Complainants were not discharged, but

voluntarily quit. I accept the testimony of Complainants as to what they
were told by their foreman Steve Williams and conclude that they were
discharged.

D. Communication of Safety Concerns

 1. Complainants did not communicate their safety concerns to the

operator.

 Where reasonably possible, a miner refusing work must ordinarily

communicate or attempt to communicate to some representative of the
operator his belief that a safety or health hazard exists. Secretary/Dunmire
and Estle v. Northern Coal Co., 4 FMSHRC 126 (1982); Simpson v. Kenta Energy,
Inc., supra.

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It was clearly reasonably possible for Complainants to tell
Williams that they refused to work underground because they
lacked training. They did not do so. Dillard Smith's request for
training some months previously cannot be converted into a
notification of safety concerns at the time of the work refusal.
The fact that Respondent was aware of blatant safety violations
does not, according to the Commission, excuse the failure to
communicate. Simpson v. Kenta Energy, Inc., supra.

 Dillard Smith did communicate his safety concerns to the office

secretary the day after his discharge and asked her to tell the company
president, Jack Pyott. Mr. Pyott was present during the hearing, but did
not testify. I assume that the message was given him. Is this adequate
communication? Respondent has already decided to cease operations, so it
would not have been possible for it to "address the perceived danger."
Simpson, supra. I conclude that under the circumstances of this case,
the communication of safety concerns to the operator on the day after
the miners' discharge did not satisfy the Dunmire and Estle and Simpson
test.

 2. Therefore, Complainants were not discharged for activity protected

under the Act and no violation of section 105(c) has been established.

                            ORDER

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

the complaints of Dillard Smith and Lonnie Smith, and these
proceedings are DISMISSED.

                      James A. Broderick
                      Administrative Law Judge