Wellmore Coal Incorporation

Read the official release (fmshrc.gov)

Plain-English summary

Billy R. McClanahan, a haulage truck driver and later an independent contractor for Wellmore Coal Corporation, complained that the company's requirement to haul at least 24 tons was unsafe. He said the company terminated him after he repeatedly hauled loads below the required weight and objected to the requirement. The judge found that his concerns about dumping near slurry basins were addressed, and that his broader safety complaints were not made in good faith because he had previously hauled similar or heavier loads without raising safety concerns. The judge denied the discrimination complaint and dismissed the proceeding.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c)(1) and 30 U.S.C. § 815(c)(3)
• Outcome: The discrimination complaint was denied, and the proceeding was dismissed.
• Key point: The judge found that the safety complaints were either reasonably addressed or not made in good faith.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                      October 30, 1995

BILLY R. McCLANAHAN, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. VA 95-9-D
: MSHA Case No. NORT CD 95-1
WELLMORE COAL INCORPORATION, :
Respondent : Preparation Plant
: Mine ID No. 44-05236

                            DECISION

Appearances: Billy R. McClanahan, Grundy, Virginia,
Complainant;
Louis Dene, Esq., Abingdon, Virginia,
Counsel for Complainant;
Ronald L. King, Esq., Grundy, Virginia,
Counsel for Respondent;
Richard Farmer, Esq., Grundy, Virginia
Corporate Counsel for Wellmore Coal Corporation.

Before: Judge David Barbour

 This is a discrimination proceeding brought pursuant to

section 105(c)(3) of the Federal Mine Safety and Health Act of
1977 (Mine Act or Act) (30 U.S.C. ' 815(c)(3)) by Billy R.
McClanahan against Wellmore Coal Corporation. McClanahan=s
complaint was filed with the Secretary of Labor (Secretary) on
November 7, 1994. The complaint was investigated by the
Secretary=s Mine Safety and Health Administration (MSHA). On
December 14, 1995, MSHA advised McClanahan that it concluded no
violation of section 105(c) had occurred. On January 6, 1995,
McClanahan filed a complaint on his own behalf with the
Commission.

 The essence of McClanahan=s complaint is that he was fired

from his job as a haulage truck driver because he objected to
hauling loads whose weight made them unsafe. McClanahan seeks
reinstatement, back pay, benefits and legal fees. Wellmore
denies the allegations. A hearing was conducted in Grundy,
Virginia. Both parties were represented by counsel.

                          THE FACTS

                          BACKGROUND

 In 1978, McClanahan, who had extensive experience in the

maintenance and repair of large equipment, including haulage

---

Page 2

trucks, began working for United Coal Company (United) as a
haulage truck driver (Tr. 47-50). United had a number of
Adivisions@ or associated companies, two of which were Wellmore
and Knox Creek Coal Company (Knox Creek). (McClanahan was
uncertain of the exact relationship between United and the
divisions. (Tr. 51, 132) He and other witnesses frequently
referred to them collectively as Athe company.@).

 McClanahan worked as an employee until August 1992. On

August 20, McClanahan and the other truck drivers were advised by
David Wampler, the president of Wellmore, that the company was
going to cease its trucking operations (Tr. 315). Wampler told
the drivers that although they were going to be terminated as
company employees, they could purchase the trucks and the company
would help with the financing. If they purchased the trucks, the
drivers could continue to haul for the company under a
contractual arrangement (Tr. 55-57, 459).

 Wampler stated that the decision to contract-out trucking

was based upon the desire of the company to reduce operating
costs. By divesting itself of the trucks the company could shift
costs such as maintenance, insurance and workers= compensation to
the purchasers (Tr. 317,342).

 The company sold eleven trucks to its former employees

(Tr. 430, 458). Under the contractual arrangements, three of the
purchasers were required to work primarily at Knox Creek and
eight were required to work primarily at Wellmore=s facilities
(Tr. 430-431).

 McClanahan decided to purchase the 1990 Ford truck he had

been driving. The contract, dated August 21, 1992, was between
McClanahan, operating under the name of Shanash Trucking Company,
Knox Creek and Wellmore (See Resp. Exh. R-1). Under the
contract, McClanahan, who had been hauling refuse primarily at
Knox Creek=s No. 3 Preparation Plant, was to continue to do so,
although the work could include hauling at other facilities,
including Wellmore=s preparation plants ( Tr. 225-226; see Comp.
Exh. 8).
McClanahan was to be paid on an hourly basis when he hauled
at Knox Creek. He also was to be paid on an hourly basis at
Wellmore=s No. 7 Preparation Plant. However, when he hauled
slate or filter cake, at Wellmore=s No. 8 Preparation Plant, he
was to be paid by the ton (Tr. 153-154, 320; Comp. Exh. 8 at 24).
(AFilter cake@ is defined in part as, A[t]he compacted solid or
semi-solid material separated from a liquid . . . @ (U.S.
Department of the Interior, A Dictionary of Mining Mineral and
Related Terms (1968) at 426).) McClanahan=s work hours and
haulage routes were to be specified by the preparation plant
managers (Tr. 65-66).

                            2

---

Page 3

 McClanahan maintained that prior to divesting itself of the

trucks, the company had no formal policy regarding the minimum
weight of loads. McClanahan thought they usually weighed between
18 and 20 tons (Tr. 67).

 In late December 1993, or in early January 1994, a new

refuse fill area was opened at Knox Creek. The area added about
two miles (round trip) to the route of the trucks. Because of
the change, it took the trucks longer to travel the distance
required to dump refuse (Tr. 297). In addition, the new route
involved a hill where the road was one lane. The trucks had to
wait to go up or down the hill. This also added to the time it
took to haul refuse (Tr. 68-69).

                 THE WEIGHT REQUIREMENT

 Around this time, David Fortner, Wellmore=s Vice President,

William AJunior@ Gross, Knox Creek=s preparation plant supervisor,
Danny Estep, Wellmore=s trucking superintendent, and Wampler,
discussed the weight of the load=s being hauled at Knox Creek
(Tr. 300). As a result, the company instituted a policy
requiring the hauling of loads weighing at least 25 tons. (The
requirement later was modified to 24 tons in order to give
drivers a one ton Aleeway@ (Tr. 154, 228, 349-350).) Fortner
stated:

      We required 25 tons to be hauled in order to
 move the refuse away at a rate that would allow the
 [preparation] plant to run . . . [W]e were not getting
 some of the trucks to haul the total amount so there
 was instituted a policy of weighing trucks because the
 trucks were being paid to haul by the hour and not by
 the ton . . . so the trucks would be . . . occasionally
 . . . weighed to ensure that . . . [they] were hauling
 a sufficient amount (Tr. 300-301, see also Tr. 302).

 The company enforced the limit by weighing trucks at random

(Tr. 77-78, 366). McClanahan stated that, at times, two or three
trucks were weighed during a shift. Gross testified that Knox
Creek kept a record of all the drivers who were weighed and of
the results (Tr. 369; Resp. Exh. 4). The records were kept in a
composition book in the control room of the preparation plant.
Subsequently, the results were recorded on a table that was
entered into evidence (Resp. Exh. 4; Tr. 419).

 Imposition of the weight limit lead to a series of events

that ended with the termination of McClanahan=s employment at

                            3

---

Page 4

Knox Creek. McClanahan, his witnesses, and the company=s
witnesses described these events. (McClanahan had kept notes
that detailed his version of what happened and he testified from
these notes (Exh. 4; Tr. 69).)

       EVENTS LEADING TO MCCLANAHAN=S TERMINATION

 ! January 12, 1994 -- McClanahan was asked by Junior Gross

to weigh the truck=s load. The load weighed 21 tons (Tr. 70-71).

 ! January 27, 1994 -- McClanahan was asked by Gross to

weigh the truck=s load. The load weighed 23 tons (Tr. 72).
According to McClanahan, Estep told McClanahan that haulage
traffic was being slowed and that McClanahan should Awatch
himself@ and should start hauling 25 tons (Tr. 73-74).
McClanahan testified that he responded that it was dangerous to
haul 25 tons, that hauling loads of 25 tons damaged the roads and
the trucks (Tr. 73-75).

 ! January 31, 1994 -- Estep advised all truck drivers via

the CB radio that a new company policy required them to haul at
least 25 tons and that if they hauled under that amount they
would not be able to work the next day. (At first, the company
allowed a driver whose load was under the limit to finish the
shift. Later the rule was changed to require the driver to stop
work the moment it was confirmed the load was underweight and to
not work the following day.) McClanahan testified that he
responded that it is unsafe and unfair to require people to
choose between being injured or going home. (Tr. 123, 444-445).)

 ! February 1, 1994 -- Estep again advised drivers via the

CB radio of the weight policy. McClanahan testified that he told
Estep that it was unsafe and the company should not put drivers
in a situation where they were required to haul an unsafe weight
(Tr. 78-79).

 ! February 4, 1994 -- McClanahan asserted he complained via

the CB radio about the Aoverloading being so hazardous@ (Tr. 79).

 ! February 17, 1994 -- The truck of driver William Ling was

weighed. The load weighed 23.62 tons (Resp. Exh. 4 at 1). Ling
was told the truck could not haul the next day (Tr. 182, 349,
370, 345).

 ! February 18, 1994 -- McClanahan contended that Ling

talked to Wampler about unsafe conditions and that Wampler simply
responded, Ato[o] bad@ (Comp. Exh. 4 at 1). However, Wampler
denied that Ling ever raised the subject of safety (Tr. 357-358).

                                 4

---

Page 5

(Ling did not testify.)

 ! February 23, 1994 -- McClanahan=s load was weighed. The

load weighed 21.59 tons (Resp. Exh. 4 at 1; Tr. 371). McClanahan
stated that Estep called him at home that evening and told him he
could not work the next day. McClanahan testified he told Estep
about the problems drivers were having because of Aexcessive
weight@ (Tr. 84).

 ! February 24, 1994 -- McClanahan called Charles Carter, a

Wellmore official. Carter was not in (Tr. 86).

 ! February 27, 1994 -- Carter returned McClanahan=s

telephone call. McClanahan asserted that he told Carter he was
Ascared to [try] to haul that much weight because of the hazards@
(Tr. 87). According to McClanahan, Carter responded that he
would get back to McClanahan (Tr. 88). He did not (Tr. 95).

 ! March 1, 1994 -- McClanahan=s load was weighed.   It

weighed 26.57 tons (Tr. 91; Resp. Exh. 4 at 1).

 ! March 2, 1994 -- Estep climbed into McClanahan=s truck and

told him to weigh. The load was 100 pounds under
24 tons. Estep told McClanahan he could not work the following
day (Tr. 93, 546; see also Tr. 372-373, 443-444.) It had been
snowing and McClanahan stated that he told Estep he was Ascared
to death@ to haul and that the snow made it worse (Tr. 93).
Estep told McClanahan that Fortner would fire him if he refused
to haul 24 tons. McClanahan stated that he responded that he was
not refusing to haul 24 tons because he did not want to work but
because he was afraid, that he considered it extremely hazardous
to haul that much.

 McClanahan testified he also told Estep the truck=s gross

vehicle weight (GVW) sticker stated that it was hazardous to haul
the required weight. He tried to get Estep to look at the
sticker, but Estep responded A[b]ull@ (Tr. 94). Estep denied
that McClanahan ever mentioned the GVW sticker or any other
safety concerns(Tr. 479).

 According to McClanahan, a GVW of 56,800 pounds represented

the gross weight the truck was manufactured to haul. The truck
weighed 26,900 pounds empty. Therefore, the truck was built to
haul approximately 15 or 16 tons (Tr. 230-231, 232). McClanahan
admitted that when he was driving the truck as an employee of the
company and was hauling loads that weighed more than 25 tons, he
never talked to anyone about hauling more than the recommended

                            5

---

Page 6

GVW (Tr. 161). McClanahan stated, AI was doing what I was
ordered to do. I was told to haul whatever they put on me and I
hauled it@ (Tr. 233, see also Tr. 253).

 McClanahan also agreed that in 1993, when the truck was

owned by the company, it was licensed in Kentucky to operate at a
GVW of 80,000 pounds and that the company obtained an extended
permit, which allowed it to be operated at a GVW of 90,000 pounds
(Tr. 169-171, 432; Comp. Exh. 8 at 27). In Virginia it was
licensed to operate at a GVW of 60,000 pounds (Tr. 172, 432). In
other words, in both states it was licensed to be operated at
weights that exceeded the GVW recommended by the manufacturer.
In Kentucky it was licensed to haul loads of approximately 26.5
tons. In Virginia it was licensed to haul loads of approximately
16.55 tons.

 ! March 3, 1994 -- McClanahan went to the mine office and

spoke with Wampler. According to McClanahan, as soon as he
walked into Wampler=s office, Wampler told him he had to haul
at least 24 tons. McClanahan responded that much weight scared
him. According to McClanahan, Wampler stated that if McClanahan
did not want to haul 24 tons, the company would take back
McClanahan=s truck for what he owned on it. (McClanahan had paid
approximately $20,000 on the truck and the book value was
approximately $40,000. McClanahan described the Adeal@ as Athey
would take a forty-thousand dollar . . . truck for twenty
thousand . . . and leave me owing the bills@ (Tr. 97).)
McClanahan maintained he tried again to get Wampler to look at
the GVW information in the truck owner=s manual, and Wampler
refused (Tr. 98).

 Wampler, however, maintained that McClanahan never mentioned

safety. Wampler claimed that the closest thing to a safety
concern that McClanahan ever expressed prior to filing his
complaint of discrimination with MSHA was to state once that the
road needed grading. According to Wampler, the company graded
the road the following day (Tr. 324-325).

 Wampler testified that at the March 3 meeting, McClanahan

stated that he would not haul more than 24 tons because of the
wear and tear on the truck -- that he would not be like other
drivers who Ajust ran their trucks into the ground@ (Tr. 323).
Wampler claimed that some time after this conversation, Pam
McClanahan, McClanahan=s wife, called and asked Wampler if the
company was going to raise the hourly rates for contract truckers
-- that because of the cost of repair, of parts, and of taxes,
the truckers needed Arelief@ (Tr. 328).

                            6

---

Page 7

 ! March 4, 1994 -- McClanahan testified that he called MSHA

about the hazardous conditions at Knox Creek and that whomever he
spoke with (he did not recall a name) stated MSHA could not help.
He testified that he also called the state department of mine
land reclamation about making the road at Knox Creek safer to
travel. McClanahan spoke with state reclamation inspector,
Lawrence Odum, who stated that he knew the road was Aa mess@ and
that he would come to the mine the next working day to determine
what could be done (Tr. 98-99).

 ! March 7, 1994 -- Odum met McClanahan at the mine.

(Odum believed the meeting was on March 6, 1994.) At the
meeting, McClanahan expressed to Odum his concern about dumping
refuse near the slurry basins where the filter cake was
deposited. He was afraid his truck would get too near the edge
of one of the basins and would fall in (Tr. 33, 35, 43). The
weight he was hauling would make it more likely that the edge
would give way (Tr. 45). Odum suggested that McClanahan contact
MSHA or the Occupational Safety and Health Administration (OSHA)
(Tr. 26, 43).

 ! March 10, 1994 -- The loads of McClanahan and another

driver were weighed. McClanahan=s load weighed 24.30 tons
(Resp. Exh. 4 at 1; Tr. 104).

 ! March 15, 1994 -- McClanahan=s load was weighed.

It weighed 24.50 tons (Resp. Exh. 4 at 1) (Knox Creek=s records
indicate that this occurred on March 14 rather than on March 15,
1995 (Id.).)

 ! March 18, 1994 -- McClanahan=s load was weighed.

It weighed 27.86 tons (Resp. Exh. 4 at 1).

 ! April 2, 1994 -- McClanahan=s load was weighed (Tr. 108-

109). It weighed 25.58 tons (Resp. Exh. 4 at 1). (Knox Creek=s
records indicate that this occurred on April 5, not April 2
(Id.).)

 ! May 25, 1994 -- McClanahan testified he called Carter.

He told Carter that he was still having problems with hauling
excessive weights. According to McClanahan, Carter=s response
Amore or less@ was to ask if McClanahan wanted to sell back his
truck (Tr. 111-112).

 ! May 26, 1994 -- According to McClanahan, Estep asked him

why he had called Carter. Estep stated that the company would
end up getting the truck if McClanahan refused to haul the
required weight (Tr. 112-113).

                            7

---

Page 8

 ! June 6, 1994 -- McClanahan=s load was weighed (Tr. 113-

114). It weighed 25.07 tons (Resp. Exh. 4 at 2).

 ! June 20, 1994 -- McClanahan=s load was weighed (Tr. 114).

It weighed 25.74 tons (Resp. Exh. 4 at 2).

 ! June 23, 1994 -- McClanahan was in Durham, North Carolina

and another miner was driving the truck. The other driver=s load
was weighed (Tr. 114). It weighed 28.35 tons (Resp. Exh. 4 at
2).

 ! August 3, 1994 -- McClanahan=s load was weighed

(Tr. 115). It weighed 24.74 tons (Resp. Exh. 4 at 2).

 ! September 1, 1994 -- McClanahan testified that he

complained about the condition of the road because it had been
raining and the road was slick (Tr. 117).

 ! September 12, 1994 -- McClanahan=s load was weighed. It

weighed 23.65 tons (Resp. Exh. 4 at 2). According to McClanahan,
Estep stuck his finger in McClanahan=s face and told McClanahan
to Astraighten up [his] attitude@ (Tr. 117). When McClanahan
responded that he would bite off Estep=s finger, Estep stated
that McClanahan would be Ahistory@ (Tr. 117).

 Estep did not deny he told McClanahan he would be Ahistory,@

but he was adamant that McClanahan never brought up safety
concerns (Tr. 451). Rather, Estep maintained that when he
confronted McClanahan about the weight of the load and pressed
McClanahan about whether he was going to haul the required
weight, McClanahan told him, AWell, I might be light again and I
might not@ (Tr. 450-451). McClanahan was told to go home and not
to come to work the next day (Tr. 118-119).

 ! September 14, 1994 -- McClanahan=s load was weighed. It

weighed 22.74 tons (Resp. Exh. 4 at 2). McClanahan was sent home
for the rest of the shift and was told not to report to work the
following day (Tr. 120).

 ! September 19, 1994 -- McClanahan=s load was weighed. It

weighed 23.50 tons (Resp. Exh. 4 at 2). McClanahan was laid off
for the rest of the shift and for the next day (Tr. 121).

 ! September 21, 1994 -- McClanahan=s load was weighed.   It

weighed 24.96 tons (Resp. Exh. 4 at 3; Tr. 122).

 ! September 22, 1994 -- Around 9:00 a.m., Estep

                            8

---

Page 9

called McClanahan via the CB radio and told him to stop at the
shop. Estep, Fortner, and Gross were there. According to
Fortner, the meeting was prompted by the fact that McClanahan
recurrently was hauling underweight loads (Tr. 286-287).

 Estep stated:

      We were going to talk to . . . McClanahan and
 offer him an alternative job and give him the option
 . . . If he did not want to haul the required weight
 . . . [W]e had an alternative job that we could put him
 on and pay him by the ton (Tr. 448).

 According to McClanahan, Fortner told him that he would be

fired if he again hauled loads that weighed under the limit
(Tr. 123). Fortner testified that this was the first time he
discussed a weight limit with McClanahan (Tr. 285). He stated
that he did not consider the limit to be unsafe and that he based
his opinion upon the fact that company trucks frequently had
hauled that much in the past (Tr. 304-305).

 Fortner asked McClanahan if he would rather haul at the

Wellmore No. 8 facility where he could be paid by the ton.
(Tr. 306). In that way McClanahan could haul the tonnage with
which he felt comfortable (Tr. 155). Fortner stated:

      I asked him if he would be interested in
 exercising his [contract] agreement . . . where he
 could go to Wellmore No. 8 and haul refuse by the ton
 so that he would not get in a problem of not hauling
 enough weight, and he said that he could not do that,
 that was crazy (Tr. 306-307).

Fortner stated that McClanahan also responded that at Wellmore
No. 8 Mine he would have to haul more tons than he was hauling at
Knox Creek in order to make what he was making at Knox Creek
(Tr. 287). According to Fortner, at no point during the
discussion did McClanahan raise any safety issues (Tr. 309).

 Gross testified that McClanahan advised the group that if he

went to Wellmore No. 8, he would have to haul heavier loads than
at Knox Creek just to make the same money. Estep testified that
McClanahan stated that he Ahardly [could] make it hauling what he
was hauling@ (Tr. 449). Gross too insisted that McClanahan never
raised the subject of safety (Tr. 417, 423).

 McClanahan maintained that he rejected the suggestion

because he heard that truck drivers at Wellmore No. 8 had

                            9

---

Page 10

exceeded the GVW by more than double Ajust to make a living,@
that the drivers were having Aall kinds of problems@ (Tr. 123).

 ! September 23, 1994 -- Around 1:00 p.m., McClanahan=s load

was weighed. It weighed 22.96 tons (Tr. 114; Resp. Exh. 4 at
3). McClanahan asked Gross, AAm I terminated?@ and Gross
responded, AYes@ (Tr. 248, see also Tr. 124). McClanahan left
the property (Tr. 248-249).

  Gross testified that aside from the instance involving

Ling=s truck, none of the other drivers who were weighed were
found to be carrying loads of under 24 tons (Tr. 377). Knox
Creek=s records indicate that between the time when random
weighing started, and September 22, when McClanahan was last
weighed, six different drivers of eight different trucks were
weighed 90 times (Resp. Exh. 4; see Tr. 391-392). McClanahan was
weighed 20 times and Ling was weighed 15 times. The rest of the
weighings were scattered among the others (Tr. 396).
McClanahan=s loads weighed under 24 tons on seven occasions
(Exh. R-4).

 ! September 27, 1994 -- McClanahan went to the company=s

trucking office to get a copy of his termination papers.
According to McClanahan, the receptionist called Fortner on the
telephone. McClanahan and Fortner engaged in a conversation in
which Fortner told McClanahan, AI=m sorry for firing you. It=s
nothing personal. I hate to do it. You didn=t deserve it, but I
was just doing what I was told@ (Tr. 126). McClanahan stated
that he responded that some day he and Fortner would talk about
it. Fortner denied the conversation occurred (Tr. 288).

  MCCLANAHAN=S PRACTICE PRIOR TO THE WEIGHT REQUIREMENT

 Records introduced by McClanahan and by management indicate

that prior to January 1994, McClanahan regularly hauled loads
that weighed more than 24 tons. The weight of the loads was
recorded on the company=s work reports. The reports were
completed and signed by McClanahan, and I credit the information
they contain. (See Comp. Exh. 8 at 28-33; Resp. Exh. 2.)

 On January 4, 1990, McClanahan hauled four loads whose

weights ranged between 25.91 tons and 32.31 tons (Tr. 138; Comp.
Exh. 8 at 31).

 On January 5, 1990, McClanahan hauled four loads whose

weights ranged between 26.73 tons and 28.39 tons (Tr. 138;
Comp. Exh. 8 at 33).

 On October 12, 1990, McClanahan hauled two loads that

                            10

---

Page 11

weighed 27.57 tons and 27.59 tons (Comp. Exh. 8 at 54).

 On December 20, 1990, McClanahan hauled two loads that

weighed 24.35 tons and 28.93 tons (Tr. 219; Resp. Exh. 2 at 27).

 On February 15, 1991, McClanahan hauled a load that weighed

28 tons (Tr. 147; Resp. Exh. 2 at 68).

 On April 30, 1991, McClanahan hauled four loads that weighed

30.79 tons, 30.75 tons, 29.88 tons and 31.89 tons (Tr. 135-136,
148; Comp. Exh. 8 at 28, Resp. Exh 2 at 80).

 On July 27, 1992, McClanahan hauled six loads, four of which

weighted more than 24 tons (Tr. 150; Resp. Exh. 2 at 46).

 In addition, on numerous instances, McClanahan estimated the

weight of his loads at 25 tons (e.g., January 25, 1990, January
26, 1990, June 1990, July 1990, August 1990, September 1990,
April 9, 1992 (see Comp. Exh. 8 at 29-30, 32; Resp. Exh. 2 at
1-14).)

                         THE LAW

 Section 105(c)(1) of the Act protects miners from

retaliation for exercising rights protected under the Act,
including the right to report a safety hazard. The purpose of
the protection is to encourage miners "to play an active part
in the enforcement of the Act" because, "if miners are to be
encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which
they might suffer as a result of their participation." S.Rep.
No. 95-181, 95th Cong. 1st Sess., at 35 (1977), reprinted in
95th Cong., 2d Sess. Legislative History of the Federal Mine
Safety and Health Act of 1977 at 623. 2nd Sess.(1978)).

 A miner alleging discrimination under the Act establishes a

prima facie case by proving that he or she engaged in protected
activity and that the adverse action complained of was motivated
in any part by that 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 F2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (April
1981)). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity (Pasula,
2 FMSRHC at 2799-2800). If the operator cannot rebut the prima
facie case, it nevertheless may defend affirmatively by proving

                           11

---

Page 12

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, 2 FMSHRC at 2800; Robinette,
3 FMSHRC at 817-818; see also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987; Donovan v. Stafford
Const. Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F. 2d 194, 195-196 (6th Cir. 1983 (specifically
approving the Commission's Pasula-Robinette test)).

 It is settled that a miner has a right under the Act to make

safety complaints to his or her employer. It is likewise settled
that a miner has a right to refuse to abide by an unsafe work
rule. However, in order to be protected by the Act, the safety
complaint and work refusal must reflect the miner=s good faith,
reasonable belief that a hazard exists (Robinette, 3 FMSHRC at
810-812).

  When a miner has expressed a good faith, reasonable belief

in a hazard, an operator has an obligation to address the danger
perceived by the miner Ain a way that his [or her] fears
reasonably should have been quelled@ (Gilbert v. FMSHRC, 866 F.2d
1433, 1441 (D.C. Cir. 1989); see Secretary on behalf of Pratt v.
River Hurricane Coal Company, Inc., 5 FMSHRC 1520, 1534
(September 1983); Secretary of Labor v. Metric Constructors,
Inc., 6 FMSHRC 226, 230 (February 1984) aff=d sub nom. Brock v.
Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985)). A
miner=s continuing complaint after an operator has taken
reasonable steps to dissipate fears and to ensure the safety of
the challenged task or condition may make the complaint and any
related work refusal unreasonable and withdraw them from the
Act=s protection (Boswell v. National Cement Company, 14 FMSHRC
253, 258 (February 1992)).

              MCCLANAHAN=S PRIMA FACIE CASE

 To prove the allegation that he was a victim of unlawful

discrimination, McClanahan must first establish that he engaged
in protected activity and as a result suffered an adverse action.

 McClanahan=s contention that he engaged in protected

activity is based upon his claims that he complained about the
safety of the minimum load requirement at Knox Creek. The
complaints fall into two categories: occasional complaints about
having to dump refuse weighing the required amount or more into
the slurry basins, and general and repeated complaints about how
unsafe it was to haul loads weighing the required amount or more.
(At the hearing, McClanahan also contended that he complained on
several instances about the condition of the haulage road at Knox

                           12

---

Page 13

Creek. However, these complaints are outside the scope of this
proceeding. McClanahan=s complaint of discrimination did not
allege complaints about the road to be a cause of his termination
-- A[T]hey fired me for my fear of hauling excessive weight@
(Complaint, Exh. 1 at 5) -- and the record fully supports finding
that the adverse action -- i.e., his termination as a contract
hauler -- was because he did not haul the weight required and was
in no way connected to complaints about the road.)

 The first question is whether McClanahan made the

complaints. If he did, the second question is whether he made
them in good faith and whether they were reasonable, recognizing
that the answer to the latter question may involve an analysis of
management=s response, if any, to the complaints.

              DUMPING INTO THE SURRY BASINS

 McClanahan believed that he Aprobably@ complained about

hauling at least 24 tons of refuse and dumping the loads into the
slurry basins because he feared the weight of the loads could
cause the walls of the basins to give way and the truck to slide
in (Tr. 163). The evidence supports finding that McClanahan in
fact expressed such fears to mine management. Gross, who at the
time was the supervisor at Knox Creek, testified that McClanahan
complained about the situation via the CB radio (Tr. 380), and
Hess, the water truck operator and former haulage truck driver
confirmed that he heard McClanahan state something to the effect
that he did not believe that it was safe to back up to the basins
to dump (Tr. 487-488). McClanahan also shared the same concerns
with Odum when Odum came to the mine (Tr. 33, 35, 45). I
conclude from this testimony that concerns about dumping 24 tons
or more into the basins were on McClanahan=s mind and that he in
fact raised the concerns with management.

 I also conclude that the evidence supports finding that

management responded to McClanahan=s fears. Gross and Hess
maintained, and McClanahan agreed, that Gross told McClanahan if
he was afraid of the truck sliding or sinking into the basins
while he was dumping, he should dump the refuse in front of the
particular basin involved and the bulldozer operator would push
it in (Tr. 163, 380, 488).

 McClanahan acknowledged that this addressed his concern

regarding slate, but he maintained that it did not address his
concern regarding the dumping of filter cake. AWe never dumped
[filter cake] and let the dozer push it . . . . If you dump the
[filter cake] out[,] it=s like water and it runs everywhere@
(Tr.163-164).

                           13

---

Page 14

 However, I find that Gross addressed McClanahan=s fears

about dumping filter cake in another manner, one that was equally
as effective as dumping other refuse in front of the basins.
McClanahan=s concern about getting too near the basins was
conditioned upon the fact that a berm was sometimes lacking when
he had to dump the filter cake and that he therefore might back
too near the edge. This was especially true when Odum came to
Knox Creek on March 7. McClanahan described it: A[T]here was no
berm around that filter cell. The only berm that you have is
when you backed up and your truck sank, you kind of made your own
berm@ (Tr. 100). Gross responded to this concern, in that he
told McClanahan that if he was apprehensive about the berm to
Aget the dozer operator, contact him on the radio and get him up
here and let him fix the berm for you@ (Tr. 380). I credit this
testimony. It was consistent with the testimony of Odum, a
disinterested witness, that Gross and Aanyone up there@ (i.e.,
anyone at the refuse dump) were usually fully responsive to
requests regarding work that needed to be done (Tr. 34).

 Thus, I conclude that while McClanahan may have expressed a

good faith, reasonable belief that dumping refuse at the slurry
basins was hazardous, his concerns were met with a response that
reasonably should have dissipated them. To the extent McClanahan
persisted in his concerns he did not do so in good faith, and
they were not protected.

        GENERAL HAZARDS OF THE WEIGHT REQUIREMENT

 McClanahan testified that from its inception he repeatedly

protested the weight limit because it was unsafe. He maintained
that on January 27, 1994, he told Estep that it was dangerous to
haul loads of 25 tons (the limit at that time) because the weight
would damage the trucks and roads (Tr. 73-73); that on January
31, he told Estep it was unsafe and unfair to require drivers to
take a chance of getting injured (Tr. 77-78); that on February 1,
he told Estep via the CB radio that the weight requirement was
unsafe and the company should not put drivers in a situation
where they had to haul unsafe loads (Tr. 78-79); that on
February 4, he complained via the CB radio about Aoverloading
being so hazardous@ (Tr. 80); that on February 27, he told Carter
that he was afraid to haul the required weight because of the
hazards (Tr. 87); that on March 2, he expressed his fears to
Estep again; that on March 3, he complained to Wampler that
hauling at least 24 tons scared him (Tr. 97); that on May 25,
1994, he complained again to Carter (Tr. 111); that on September
22, 1994, at a meeting with Estep, Fortner and Gross, he stated
again that he regarded the weight limit requirement to be

                           14

---

Page 15

hazardous.

 Gross, Estep and Wampler all stated that McClanahan never

discussed the safety of the weight limit with them (see e.g.,
Tr. 324, 417, 423, 437, 497). Rather, they maintained that his
concern was for the wear-and-tear the requirement put on his
truck. I do not fully credit their testimony. As I have
previously noted, McClanahan carefully documented the dates and
substance of his purported complaints (Comp. Exh. 4). Indeed, he
showed such an aversion to the weight requirement once he became
a truck owner that I find it entirely likely he raised both kinds
of objections -- objections based on safety and objections based
on wear-and tear -- in order to get out from under the
requirement.

 In any event, there is no question that by September 22, at

the latest, management understood that McClanahan was using
safety as at least one basis for objecting to the weight
requirement. Fortner, who was at the September 22 meeting with
McClanahan and the others, stated that he explained to McClanahan
that the weight requirement was not unsafe (Tr. 304-305).
Fortner=s explanation did not come out of the blue, and I infer
it was elicited by McClanahan=s expression of his safety
concerns.

 Having concluded that McClanahan expressed his general

safety concerns regarding the weight limit, the next question is
whether they were based on a good faith belief that hauling loads
of 24 tons or more was, in fact, hazardous. I find that they
were not.

 In my view, McClanahan=s purported good faith belief in the

hazards of the weight limit is completely discredited by his
documented history of repeatedly hauling loads that were as heavy
or heavier than the limit when he was a salaried employee, and of
doing so without meaningful complaint. I conclude that while
McClanahan may indeed have had concerns, they were those of a
truck owner for the cost of the requirement to his business and
not those of a driver for his and others= safety.

 To me, it speaks volumes that prior to becoming a truck

owner McClanahan repeatedly hauled loads weighing more than
24 tons without making known his supposed safety concerns to
either management or to MSHA. McClanahan=s own carefully kept
records indicate that the first time he complained to management
about hauling 24 tons or more was in late January 1994, shortly
after the weight limit went into effect and after he had
purchased the truck (Comp. Exh. 4). Yet, the record is replete

                           15

---

Page 16

with previous instances when McClanahan hauled more than 24 tons.

 As I have already noted, on January 4, 1990, he hauled four

loads that weighed between 25.91 tons and 32.31 tons (Tr. 138;
Comp. Exh. 8 at 31); on January 5, 1990, he hauled four loads
that weighed between 26.73 tons and 28.39 tons (Tr. 138; Comp.
Exh. 8 at 33); on October 12, 1990, he hauled two loads that
weighed 27.57 tons and 27.59 tons (Tr. 217; Resp. Exh. 8 at 54);

on December 20, 1990, he hauled two loads that weighed 24.35 tons
and 28.93 tons (Tr. 219; Resp. Exh. 2 at 27); on February 15,
1991, he hauled one load that weighed 28 tons (Tr. 147, Resp.
Exh. 2 at 68); on April 30, 1991, he hauled four loads that
weighed between 29.88 tons and 31.89 tons (Tr. 135-136, 148;
Comp. Exh. 8 at 28, Resp. Exh 2 at 80); on July 27, 1992, he
hauled four loads that weighed between 24.32 tons and 27.77 tons
(Tr. 150; Resp. Exh. 2 at 46). (While some of these loads were
hauled in a truck other than the one he purchased and at
different sites, McClanahan did not maintain that the trucks or
the sites essentially differed.)

 McClanahan testified that on October 2, 1990, when he was

recorded as hauling loads of 27.57 tons and 27.59 tons, he told
a company official it was Atoo much weight@ (Tr. 144-145; Resp.
Exh. 2 at 54) and that later he told Estep to try to get the
person loading the trucks to Alighten up@ (Tr. 218)). Even if I
credit this testimony, it will at most establish that on these
two occasions McClanahan complained about the weight he was
hauling. However, there is no indication he linked the
complaints to fears for his or others= safety.

 Likewise, McClanahan maintained that on December 20, 1990,

when he hauled loads of 24.35 tons and 28.93 tons, he told
Clifford Hurley, who was then a supervisor, that the load was too
heavy, but, again, there is no testimony that this statement was
linked to safety concerns (Tr. 219, Resp. Exh. 2 at 27).

 Moreover, and equally compelling, McClanahan=s lack of a

genuine safety concern is shown by the fact that without
complaint on occasion he signed work reports estimating the
weight he was hauling to be 25 tons (Tr. 140; see Comp. Exh. 8;
Resp. Exh. 2). McClanahan maintained that when he estimated a
weight of 25 tons, the actual tonnage always was less, but I do
not believe him (Tr. 215). The numerous records of loads that
were weighed and were over 25 tons indicates the contrary.

 In any event, it strikes me as completely incongruous to

McClanahan=s purported belief in the inherent hazards of hauling

                           16

---

Page 17

more than 24 tons, that he would have indicated he was engaging
consistently in hazardous work.

 I believe it is more than a coincidence that McClanahan=s

complaints concerning the hauling of 24 tons or more are
definitely documented as linked to safety only after he became
the owner of the truck. The financial burden of upkeep and
maintenance was suddenly his, not the company=s. Obviously, if
the truck was going to have to haul 24 tons or more each time it
was loaded, there was going to be wear and tear on the truck and
hence expense to McClanahan. Once he became an owner he had a
decided financial incentive for protesting the weight
requirement, an incentive that was quite apart from safety.

 Finally, I view McClanahan=s failure to complain to MSHA

about the purported hazards of the weight limit also as
indicative of his lack of good faith.

 Section 105(c) does not provide the only path a miner may

follow to protest against working conditions he or she believes
hazardous. A miner may also pursue a parallel path by invoking
section 103(g) (30 U.S.C. ' 813(g)). The provisions of section
103(g) authorize a miner who reasonably believes a violation of
the Act or any mandatory health or safety standard exists or an
imminent danger exists to request and to obtain an immediate
inspection by notifying MSHA of the violation or danger. In
addition, the law requires the name of the miner requesting such
an inspection to be kept confidential and to not be revealed to
the operator. McClanahan did not avail himself of this option.

 McClanahan testified that on March 4, 1994:

      I ... called MSHA about the hazardous conditions
 and at the time I didn=t write down who I talked to or
 anything. They just said they couldn=t help (Tr. 98;
 see also Tr. 162).

 I do not credit this testimony for three reasons. First,

McClanahan later modified his testimony and stated that either he
or his wife called -- he could not recall who (Tr. 257-258).
Second, and as counsel for Wellmore pointed out at the hearing,
the fact that McClanahan could not remember who placed the
telephone call or to whom he or his wife talked is entirely at
odds with the carefully written records he kept of all of the
conversations and incidents that related to his ultimate
termination (Comp. Exh. 4). Third, if in fact either of the
McClanahans reported to MSHA on-site hazardous conditions or
practices, I find it highly unlikely that either would have been
told there was nothing MSHA could do. MSHA does not operate like
that. While complaints about on-site hazards must be in writing,

                           17

---

Page 18

they may be received orally and later reduced to writing.
Moreover, it is the policy of the agency to advise miners of
their rights and how they may proceed in conformance with those
rights. It simply does not ring true that a miner would call
MSHA, report what he or she believed to be a work place hazard
and be told the agency was powerless.

 It may be that Mrs. McClanahan called to complain about the

use of trucks weighing more than their licenses permitted on
state roads. McClanahan=s testimony that Ashe had called and
related the weight problem, and . . . they said they just
couldn=t help because it was off road or not an issue@ suggests as
much (Tr. 257). However, if in fact she had complained about
hazardous work conditions at the mine, it is not credible to me
that she would have been told the agency could not help her
husband. As I stated, the agency does not work like that. (In
this regard, I find McClanahan=s apparent assertion that it was
inherently dangerous to haul loads that put the truck over the
manufacturer=s recommend GVW to be totally unsupported by the
record. Not only did McClanahan himself consistently haul loads
that weighed more than that recommended by the manufacturer, the
Commonwealths of Kentucky and Virginia licensed the truck to haul
loads beyond the manufacturer=s recommended GVW (Tr. 169-179,
233-234, 250, 432).)

 Further, McClanahan also stated that he did not file a

formal complaint with MSHA because he was Afearful for [his] job@
(Tr. 257). When I asked him whether he was aware that under the
Act he had the right of confidentiality, he responded AI know I
have that right, but it [isn=t] the way it always works@ (Id.).
Undoubtedly, it is true that there have been instances when
confidentiality has not been protected. However, it also is true
that those instances are few and far between. The agency takes
the right very seriously. It has codified it in its regulations
(30 C.F. R. ' 43.2, ' 43.4) and emphasized it in its official
policy manual (Program Policy Manual, III.43-1 at 3). MSHA goes
to great lengths to protect from disclosure the identity of
miners who report hazards. While McClanahan=s skepticism of the
efficacy of MSHA efforts in this regard provides him with a
convenient excuse, it raises an equal skepticism on my part of
his good faith belief in the purported hazards he encountered.

                            18

---

Page 19

                          ORDER

 For the reasons set forth above, I conclude McClanahan=s

safety complaints were either addressed so that their
continuation was unreasonable or were not made in good faith.
Therefore, his complaint of discrimination is DENIED and this
proceeding is DISMISSED.

                                  David F. Barbour
                                  Administrative Law Judge

Distribution:

Billy R. McClanahan, P.O. Box 498, Grundy, VA 24614

Louis Dene, Esq., P.O. Box 1135, Abingdon, VA 24210

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt,
237 Main St., Drawer 1560, Grundy, VA 24614

Richard Farmer, Esq., P.O. Box 901, Grundy, VA 24614

\mca

                           19