Canyon Country Enterprises, D/B/A Curtis Sand & Gravel, a Corporation

Read the official release (fmshrc.gov)

Plain-English summary

Clyde C. Cole claimed that Canyon Country Enterprises, doing business as Curtis Sand and Gravel, discriminated against him after he refused to operate a front-end loader that he believed was unsafe. Judge Michael A. Lasher, Jr. dismissed the complaint on two independent grounds. He found that Cole's Mine Act discrimination complaint was filed outside the 60-day filing period after Cole had already pursued a grievance and a separate safety complaint. He also found that the loader was safe, that Cole's refusal was not based on a reasonable safety belief, and that he voluntarily quit rather than being constructively discharged.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c)(2) and 30 U.S.C. § 815(c)(3).
• Outcome: The discrimination proceeding was dismissed as untimely and without merit.
• Key point: A miner's work refusal is protected only when based on a reasonable, good-faith belief in a hazardous condition, and a late discrimination complaint may be dismissed when the miner pursued other forums while delaying the Mine Act filing.

Full text (FMSHRC public release)

CCASE:
CLYDE C. COLE v. CANYON COUNTRY ENTERPRISES
DDATE:
19920121
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
Room 280, 1244 Speer Boulevard
Denver, CO 80204

CLYDE C. COLE, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. WEST 91-191-DM

CANYON COUNTRY ENTERPRISES, Soledad Canyon Mine
D/B/A CURTIS SAND & GRAVEL,
A CORPORATION,
RESPONDENT

                                  DECISION

Appearances: David P. Koppelman, Esq., International Union of
Operating Engineers, Local 12, Pasadena, California,
for Complainant;
Ben W. Curtis, President, CURTIS SAND AND GRAVEL,
Canyon Country, California, for Respondent.

Before: Judge Lasher

 This proceeding arises under Section 105(c)(3) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq. (1982) (herein "the Act"). Complainant's initial complaint
with the Labor Department's Mine Safety and Health Administration
(MSHA) resulted in MSHA's issuance of a Section 105(c)(2)
complaint in his behalf which was originally filed on April 9,
1990, in Docket No. WEST 90-165-DM, and which was amended on June
18, 1990. On December 14, 1990, MSHA and Respondent Curtis filed
its "Stipulation for Dismissal" indicating, inter alia, that
"Having undertaken and completed discovery, the Secretary and
Curtis now agree that the matter should be dismissed with
prejudice." By my Decision entered January 22, 1991, the
proceeding initiated by MSHA in Docket No. WEST 90-165-DM was
dismissed. After petition for Commission review was filed, the
Commission on March 1, 1991, denied Cole's petition, affirmed my
decision, gave Cole 30 days to initiate a proceeding under
Section 105(c)(3), and provided that "The record in the 105(c)(2)
proceeding case may be noticed judicially in any such new
proceeding."

 The discrimination complaint by Cole individually was then

filed in the instant docket on February 12, 1991, alleging that
Respondent Curtis "discriminated against Clyde C. Cole when it
terminated his employment on or about July 19, 1988."

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ISSUES

 1. Whether the Complaint with MSHA (filed beyond the 60-day

period provided in Section 105(c) of the Act) was untimely;
whether the determination of the Labor-Management Adjustment
Board issued pursuant to the grievance procedures of the
collective bargaining agreement between I.U.O.E. and the Rock
Products and Ready-Mix Employers of Southern California is
preclusive of the action; and assuming arguendo that both the
Complaint and this action are viable, whether Complainant was
discriminatively discharged on July 19, 1988, for refusing to
operate what he alleges to be an unsafe front-end loader (#5312).

 2. Respondent contends Complainant quit. Complainant

contends he was discharged. Respondent contends Complainant did
not communicate a safety complaint when he left employment on
July 19, 1988. Two final questions arise:

 a. Whether Complainant was constructively discharged by

being given a choice by his foreman of operating a loader which
he reasonably believed was unsafe or of being sent home and being
deemed to have quit employment.

  b. Whether reasonable basis existed for Complainant Cole's

alleged safety concern and complaint about the loader on July 19,
1988.

Timeliness of Filing Discrimination Complaint

 Respondent contends that Cole's discriminatory "discharge"

complaint was untimely and should be dismissed since it was not
filed until some four months after he left employment on July 19,
1988. Timeliness questions are to be resolved on a case-by-case
basis. Joseph W. Herman v. Imco Services, 4 FMSHRC 2135 (December
1982). It appears that Mr. Cole actually filed two complaints
with MSHA.

 Complainant Cole filed his first MSHA Complaint (Ex. C-8) on

August 1, 1988, which alleged inter alia that he was assigned for
work at Curtis on May 16, 1988, and that

      "I am currently in grievance procedures against Curtis
      Sand and Gravel because I refused to run an unsafe
      piece of equipment. The piece of equipment I am
      referring to is a Cat 988, #5312. These are the things
      that I feel are unsafe about this loader:

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1. Center pins are completely worn out.

      2. The steering locks and will hardly turn
         from right to left.

      3. Steering pins are worn out.

      4. Brake pressure is on the red, with very
         little braking power, like only one wheel
         has a brake. That could also be a part
         of steering problem. (The steering is a
         lot harder in tight places when loading
         trucks while using the brakes).

      5. No backup alarm.

      6. No parking brake.

           This is not the only piece of equipment
      that I feel is unsafe. I also see some hazards
      in the plant area of the Long Plant. The surge
      pile escape tunnel is crushed. The catwalks are
      loose and coming apart. There are no guards on
      tail pulleys. Not all but there are a few more
      than is safe. It only takes one to get a man
      killed. I have never seen a lockout used there.
      It seems to be a general lack of concern for
      the working men and safety. Whatever we can
      get away with seems to be the motto.

           I hope it isn't going to take someone to get
      hurt bad or even maybe killed to get some things
      to change there. I certainly hope not. That's
      why I am writing this letter today. Thank you
      very much for your cooperation in this matter.

 It is concluded after careful scrutiny of the wording of

this complaint and the record that Mr. Cole did not at this time
complain to MSHA about his allegedly unlawful discharge. Thus,
his August 1 complaint does not actually mention he was
discharged, but does specifically mention that he was "currently
in grievance procedures," listed what he felt was unsafe about
Loader #5312, complains that other equipment was unsafe, and
complains about other "hazards." MSHA apparently did not consider
this to be a complaint of discriminatory discharge (T. 123) and I
conclude properly so.

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On or about August 10, 1988, MSHA commenced investigation of
this first complaint, confined to the "safety" allegations there-
in (Footnote 1) and on August 10, 1988, a "Notice of Negative
Finding" (see Exs. R-2 and C-9) was issued indicating that the
alleged hazards did not exist. (Footnote 2)

 Mr. Cole's second complaint was filed on or about December

15, 1988, nearly five months after he left Curtis's employment.
This complaint alleges:

      I, Clyde C. Cole, feel I have been discriminated
      against because I refused to run what I knew to be an
      unsafe front-end loader #5312. In violation of Article
      VI, Section 1, RSG contract. I want to be reinstated to
      my previous position with full back pay from July 19,
      1988, to whenever I am reinstated, benefits and
      seniority. And due to mental anguish, discrimination
      and harassment over this wrongful termination and
      conspiracy to cover the wrongful termination, I am
      seeking restitution in the amount of $150,000 over and
      above the previously mentioned items.

 This document does comprise a complaint of unlawful

discharge cognizable under the Act and the question of timely
filing is analyzed with respect thereto.

 Section 105(c)(2) of the Mine Safety and Health Act provides

that "[a]ny miner . . . who believes that he has been discharged,

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interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary [of Labor]
alleging such discrimination." 30 U.S.C. 815(c)(2). (Emphasis
added).

 Significantly, Respondent did not allege or establish any

specific direct prejudice from the three-month-late filing of the
complaint. Complainant testified that, after filing his "safety"
complaint, he was never advised by MSHA that he should file a
discrimination complaint (T. 79-80, 123) and that he had not held
any union positions or filed MSHA complaints prior to July 1988.
(T. 128-129). He indicated it was after November 2, 1988, that he
found out he had to file a discrimination complaint and that he
thought everything "was taken care of" by his first "safety"
complaint. (T. 123).

 While some general prejudice would ordinarily be inferred

from the passage of several months after the allegedly adverse
action before a complaint is filed and a party is put on notice
that it must defend a claim of discriminatory discharge, it is
noted that here the Respondent, because of a grievance brought by
Complainant, was brought into the process of defending itself
from a similar charge (Ex. C-5, Grievance dated July 20, 1988)
and thus cannot convincingly contend that it was deprived of an
early opportunity of investigating the facts of the incident, or
perpetuating testimony by taking statements from its witnesses,
etc. Sometimes a delaying complainant can achieve overwhelming
advantage springing from tardy filing. While Complainant's
asserted justification for late filing was not convincing,
nevertheless in view of the immediate bringing of the grievance
and filing of the "safety" complaint, it cannot be said that the
instant discrimination complaint was a completely stale claim
from Respondent's standpoint. Nor can it be concluded that the
Respondent mine operator actually demonstrated specific prejudice
attributable to the delay, Secretary of Labor on behalf of Hale
v. 4-A Coal Company, 8 FMSHRC 905 (June 1986).

 On the other hand, Cole's failure to file a discrimination

complaint with MSHA nearly five months after the date his
employment terminated and after (1) he filed both a grievance
under the labor contract and a safety complaint with MSHA and,
(2) both complaints had been denied, constitutes the basis for
inference

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of some prejudice to his employer. (Footnote 3) Certainly, Respondent
was not aware until December 15, 1988, that it had to defend a
claim of the nature of a federal action under the Mine Act for
discriminatory discharge with its complexity and impressive
potential economic remedies available to a successful
complainant. Having been the subject of a specific MSHA
investigation for safety violations after Cole's complaint
thereto was filed promptly after he left employment, Respondent
would have been entitled to believe that the MSHA processes were
over and that further litigation of the matter was not in
prospect. More specifically, while it was on notice to defend the
grievance (a very informal process more specifically desribed
subsequently herein) and the various MSHA safety matters raised
by Mr. Cole, it was in no way on notice to prepare for and defend
a Mine Act discriminatory discharge proceeding. I thus infer and
find that on the unique circumstances of this case and the
one-at-a-time manner in which Complainant proceeded in filing
various actions that Respondent would have incurred general
prejudice. (Footnote 4)

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More particularly and decisively, it is found that this
question is governed by the decision of the Federal Mine Safety
and Health Review Commission in David Hollis v. Consolidation
Coal Company, 6 FMSHRC 21, 25 (January 1984).

 The circumstances in Hollis, supra, are similar to those

presented in this action. The miner in Hollis alleged that he was
discharged on September 29, 1980, in retaliation for safety
concerns expressed to both MSHA and his employer. Rather than
immediately filing a complaint under the Act, the miner, David
Hollis pursued a grievance under the collective bargaining
agreement, filed a charge with the National Labor Relations
Board, and initiated proceedings before the state human rights
commission. Not until seven months after his discharge, and
before the resolution of his alternative actions, did Hollis file
his MSHA complaint. Shortly thereafter, based on the 60-day
statute of limitations, his employer moved to dismiss the action
as untimely.

 During argument on the motion to dismiss, Hollis contended

that he was unaware of his rights under the Act until March 1981,
and that he filed his complaint within 60 days of discovering
those rights. Since he allegedly was not aware of his rights
before that time, Hollis argued that he justifiably failed to
file his complaint in a timely manner. The Commission, however,
rejected his assertion. Observing that he served his union as
chairman of the safety committee, and that Hollis had filed a
grievance through his union, a charge with the National Labor
Relations Board, and a complaint with the West Virginia Human
Rights Commission, the Commission concluded that Hollis knew of
his rights, but chose to pursue alternate avenues of relief. It
held that "a miner's late filing [will not be excused] where the
miner has invoked the aid of other forums while knowingly
sleeping on his rights under the Mine Act." (Emphasis added).

 Similarly, in Herman v. Imco Serv., supra, the miner alleged

that he was terminated because of his numerous complaints about
the safety of a suspended storage bin. Despite his numerous
contacts with MSHA officials both shortly before and after his
discharge, Herman delayed filing his complaint until 11 months
after his termination. Granting his employer's motion to dismiss,
the Commission held that Herman's

      prolonged hesitation in filing a discrimination
      complaint cannot be attributed to his being mislead as
      to or a misunderstanding of his rights under the Act.
      Rather, the record

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reveals that he had direct contact with MSHA
officials during the period that the events
now complained of occurred, as well as after
his termination. Quite simply, he had abun-
dant opportunity and the ability to go forward
with his complaint in a more timely fashion,
if he had then desired to do so. (Emphasis
added).

 The 60-day rule, as applied by the Commission in both Hollis

and Herman, compels dismissal of Cole's complaint. There is no
dispute that, less than two weeks after resigning his employment,
Cole complained to MSHA and filed a charge with that agency
alleging safety hazards on the replacement loader. Cole was in
direct contact with MSHA as early as August, was aware of his
rights under the Act, and was also familiar with the procedures
required to file an MSHA complaint. Like the miner in Herman,
Cole's "prolonged hesitation in filing a complaint cannot be
attributed to his being mislead as to or a misunderstanding of
his rights under the Act."

 Moreover, like the miner in Hollis, Cole pursued an

alternate avenue of relief, a grievance under the Agreement, and
not until he lost that claim did he file the subject complaint.
As the Commission made clear in Hollis, an untimely filing will
not be excused "where a miner has invoked the aid of other forums
while knowingly sleeping on his rights under the Act."

 Accordingly, on this basis, Complainant's initial complaint

with MSHA is found untimely and this proceeding is to be
dismissed. Discussion of the issues of preclusion and the merits
of the discriminatory discharge allegation follow.

Respondent's Defenses--Res Judicata, Collateral Estoppel: Preclusion

 Although not repeated in its post-hearing brief, Respondent

in its answer to the Complaint and during this proceeding has
argued that the complaint is (a) barred by the doctrines of res
judicata and collateral estoppel, and (b) that Complainant's
exclusive remedy for any alleged discrimination is pursuant to
the Labor Agreement the grievance procedures of which Complainant
pursued to their conclusion.

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Precedents of the Federal Mine Safety and Health Review
Commission govern the issues raised by these defenses and
guidance therefrom and U.S. Court decisions are utilized in the
following determination. First, a brief summary of the background
pertaining to these issues is helpful.

 Complainant left employment on July 19, 1988. Grievance

procedures provided in Article XIV of the 1985-1989 Agreement
between International Union of Operating Engineers, Local No. 12,
A.F.L.-C.I.O. and Rock Products and Ready Mix Concrete Employers
of Southern California (Footnote 5) (Court Ex. 1) establish a
Labor-Management Adjustment Board to issue decisions which "shall
be final and binding on either or both parties." The objective of
the Board, however, is "for the express purpose of interpreting
and enforcing all the terms and conditions" contained in the
Agreement. The Grievance procedures also provide for Arbritration
in the event the Board does not reach a decision (Article XIV,
Section 1(b). The Board did reach a decision and the matter thus
never went to an arbitrator. (Footnote 6)

 Mr. Cole filed a Grievance form (Ex. C-5), and after being

turned down at Steps 1 and 2 of the Grievance procedures
(Sections 2(a) and (b) of the Agreement) he proceeded to Step 3
which is referral to the Labor Management Adjustment Board.

 The six-member Board (3 union and 3 management) met on

November 2, 1988, at the union offices in Los Angeles,
California, and heard and decided the cases of some five
grievants including Complainant on that date. The provision of
the Agreement shown by the Board's decision (Ex. R-1) to be the
point of reference was Article VI, Section 1 which provides:

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ARTICLE VI
Work Performance

      Section 1. Discipline. The Employer is the judge as to
      the competency of any worker. All employees must
      perform their work to the satisfaction of the Employer,
      provided, however, that no employee shall be discharged
      without good cause or discriminated against because of
      his membership in the Union or Union activities.

 This provision framed the issue in the grievance process:

Whether Curtis violated Article VI, Section 1 of the Agreement by
allegedly discharging an individual employee without "good
cause." See "Judgment on Stipulation for Entry of Judgment"
entered by the Superior Court of the State of California for the
County of Los Angeles on August 17, 1990. (Ex. R-5, par. 5). The
parties to the Stipulation upon which the Judgment was entered
were Curtis and the union. The Judgment confirmed in all respects
the decision of the Labor Management Adjustment Board denying
Cole's grievance. (Ex. R-5, pg. 6).

 It is clear that the Court's judgment was based on the

stipulation for it to do so by Curtis and the union and was not
based on judicial review of the matter. Cole, who brings this
action as an individual complainant under the Act was not a party
to the stipulation. The stipulated Judgment did not directly or
indirectly determine his rights under the Act or attempt to
resolve his rights other than under the Labor Agreement in
question. The effect of the Judgment, as indicated in the last
sentence thereof, merely confirmed "in all respects" the decision
of the Labor Management Adjustment Board denying Mr. Cole's
grievance. It was not a judgment by a court on the merits of the
litigation. See Bradley v. Belva Coal Company, 4 FMSHRC 982, 986
(June 1982). Examination of the Board's decision then is in order
to determine its adequacy in terms of judicial fact-finding,
procedural due process, and consideration and application of Mine
Act discrimination formulae and concepts. The Board's decision
provides:

      Dispute:

      Clyde Cole protests termination.

      Contract Reference: Article VI, Section 1

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Company Position:

      The grievant is a loader operator and was hired May 23,
      1988, at the Company's Soledad Canyon Plant. On July
      19, 1988, the loader that the grievant normally
      operates broke down and he was assigned to operate a
      different loader. (Both loaders were of the same type
      and approximate age.) When he was told to operate the
      other loader, he refused alleging that the loader was
      unsafe. He stated that he would do other work and the
      Supervisor thereupon told him that that was the only
      work he had for him and further that if he elected not
      to do the work and left the Plant he would be
      considered a voluntary quit. One of the Company
      mechanics with approximately 15 years of employment
      stated that the loader was safe to operate. Further
      subsequent to the Step Two meeting on August 1, 1988,
      the grievant filed a charge with MSHA and as a result
      of that investigation the inspector found that the
      loader was indeed safe to operate. (On the notice the
      box saying "alleged hazard did not exist" was checked.)

      Union Position:

      The grievant admitted refusing to operate the loader
      but alleged he had been told to go home if he was not
      going to operate that loader. Although at the time he
      did not state why he believed the loader was unsafe, he
      said at the hearing that since the loader had to go on
      the highway he didn't believe it was safe because of
      the steering.

      Decision:

      Moved and seconded that based on the evidence presented
      in this case the claim of the Union be denied.
      Motion Carried. (Emphasis added).

 Analysis of this decision of the Board--actually only

"minutes" of its proceeding--shows that the actual principles
underlying the decision are not ascertainable. The findings of
fact

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are exceedingly limited. (Footnote 7) It is concluded that the Board's
fact-finding process was not equivalent to judicial fact-finding,
and more particularly in any way comparable to that of the
Commission. Certainly, the record of its proceedings, including
notes thereof (Ex. C-6), is not as thorough or complete.
Respondent has the burden of establishing the applicability of
its defenses seeking to preclude litigation of the discrimination
issues in this matter on the basis that such were litigated and
adjudicated by a court or forum of competent jurisdiction on the
merits in a prior proceeding, i.e., res judicata. On the basis of
the record presented in this matter, such a determination can not
be made, although it does clearly appear that the Mine Law's
discrimination formulae were not in issue, were not applied, and
were not determinative. (Footnote 8) Thus, it is concluded that this
litigation under the Mine Act is not precluded. Further, since it
does not appear that precise issues relevant under the Mine Act
including some that were specifically raised in this proceeding
(Such as whether Complainant quit voluntarily, was discharged, or
was constructively discharged by being given the forced choice of
(1) either working under unsafe conditions or (2) going home and
being considered to have quit, were raised and discussed and
determined in the Board's proceedings, Respondent is found not to
have carried its burden inherent in its defense of issue
preclusion, i.e., collateral estoppel.

 Accordingly, Respondent's defenses of res judicata and

collateral estoppel are rejected. Bradley v. Belva Coal Company,
supra.

 Nevertheless, as the Commission has held with respect to the

decisions of arbitrators, although the Commission is not bound by
the determination of Labor-Management Adjustment Board, within
the boundaries of sound discretion some weight can be accorded to
its specialized competence in labor-management relations matters.

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Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (October 1980); David Hollis v. Consolidation Coal Co.,
supra.

Discrimination

 In order to establish a prima facie case of mine safety

discrimination under Section 105(c) of the Act, a complaining
miner bears the burden of production and proof to establish (1)
that he engaged in protected activity, and (2) that the adverse
action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., supra,
rev'd on other grounds sub nom., and Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (April
1981).

 The Commission has held that a miner's work refusal is a

protected activity under the Mine Act if the miner has a
reasonable, good faith belief in a hazardous condition. Secretary
on behalf of Pasula v. Consolidation Coal Co., supra,
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal Co.,
supra. See also Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982).

 Ultimate determination of the merits of the discrimination

issue turns on whether Complainant's refusal to operate Loader

5312 was based on a reasonable belief that it was unsafe (and

whether such was reasonably communicated to management) or
whether it was due to some subjective reason or Complainant's
temperament. (Footnote 9)

 The 33-year-old Complainant has equivalency of a high school

education. He commenced employment with Curtis on May 16, 1988,
and worked as a heavy equipment operator (loader operator) for 65
days until his employment terminated on July 19, 1988. He
regularly operated front-end Loader #5303, which was one of
approximately seven such loaders in use.

 Complainant's account of pertinent events differs sharply

with Respondent's. We start first with Mr. Cole's version.

 Complainant testified that in mid-June 1988 (T. 62), he

operated Loader #5312--the one he subsequently refused to
operate--for a period of five hours and that at that point he
determined the brakes "were poor," the center pins "were shot,"
and that it would "jolt" left or right "whichever way it wanted

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to go." (T.59). Since the center pins are what hold the machine
together he said that if the machine "should come apart half way"
there was a good chance of having both legs crushed and of death.
(T. 60). After getting off the machine, he testified, he told his
plant foreman Juan Moran that the loader was "flat unsafe" to run
(T. 63) but he did not tell Moran what was unsafe about it. (T.
63-64). He also testified he told Mechanic Homer Pennington that
the loader was unsafe. (T. 63).

 About one week before July 19, 1988, Cole again operated

Loader #5312 for 15 minutes and he testified no safety repairs
had been performed on it, i.e., to the brakes, steering, back-up
alarm and center pins. (T. 65). He decided at this time he would
not run it if asked to do so again and he testified he asked
Homer Pennington for a red tag so he could keep it available if
he was asked to run #5312 again. Pennington advised him the
company did not have red tags.

 On July 19, according to Complainant, his regular machine

5303 broke down and the crucial conversation with his foreman

Juan Moran was given by Mr. Cole as follows:

      Just shortly thereafter Mr. Moran came up and asked
      what the problem was with the machine (5303), and I
      told him that the tilt wouldn't work, the bucket
      wouldn't roll back, or it wouldn't dump. He asked me if
      I could make it up to the Soledad Plant with the
      machine, and I said yeah . . . .

                     *      *      *      *      *

      And so I had the Euclid drive out from underneath the
      bucket and I lowered it down and I took the machine up
      to the Soledad Plant. This is a narrow, two-lane
      highway, blacktop, open to civilian personnel. Up an
      incline to the Soledad Canyon Plant at which point I
      parked the machine and Juan (Moran) called for Homer
      Pennington to come up and take a look at it. Homer came
      up and climbed up on the machine and he moved the lever
      back and forth and back and forth, and him and Mr.
      Moran had a conversation, and then Juan told me to go
      over on 5312, take 5312 down in the mud hole and run
      it, and I refused at that point to run the machine.

                     *      *      *      *      *

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Mr. Moran told me to run 5312; take number
5312 down to the mud hole and continue working.
At that point I refused to operate machine number
5312 and spelled out exactly what I felt was un-
safe about the equipment, starting with number
one, the center pins, the steering, the brakes,
no backup alarm. Then he told me he didn't have
anything else for me to do that day, if I wasn't
going to run 5312, and he thought it was safe
enough to run down in that mud hole, to go home.

      I asked him if he was firing me and he said,
      no. I says I'll go down to the Lang Station Plant.
      I said I will be more than happy to run a scraper;
      I said I will stay here; I said I will shovel tail
      pulleys, I will go down to the Lang Station Plant
      and shovel the tail pulleys. (T. 68-69).
      (Emphasis added).

      He told me to go home. And I asked him if he was firing
      me and he said no. I says okay. And then got my lunch
      box off the machine and he said if you leave, you quit.
      I said I thought you just said you weren't firing me?
      He says I am not, I am just sending you home. I said
      okay. So I got in my car and I left. (T. 70).

 The other party to the primary events of July 19, 1988,

Respondent's plant foreman, Juan Moran, testified in direct
contradiction to the main points of Mr. Cole's presentation,
i.e., as to whether Loader #5312 was unsafe, whether he (Moran)
sent Mr. Cole home, whether Mr. Cole quit, whether Mr. Cole said
the loader was unsafe, and whether Mr. Cole specified the various
items (brakes, steering, backup alarm, center pins) that he
considered unsafe on the loader.

 Mr. Moran testified he has been an employee of Respondent

Curtis for some 20 years and has been plant foreman since 1976.
As plant foreman, he was at pertinent times, in charge of
Curtis's two operations, Lang Station (which had approximately
100 employees in 1988) and Soledad Canyon which had approximately
8 employees. (T. 56, 131).

 Mr. Moran testified that he had never heard of or had

experience with a center pin breaking, that he had never had to
refuse to operate equipment at Curtis in order to get it
repaired, and that while the center pins on loader 5312 were
loose they were not unsafe. (T. 132-133).

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According to Mr. Moran, on the day that Mr. Cole quit
employment, he then ran #5312 for three hours and two other
employees, Efrem Ramirez and Neal Wallens, also ran it without
complaint. (T. 133-234). (Footnote 10)

 Portions of Mr. Moran's testimony--which I credit as being

the more trustworthy and persuasive over
Complainant's--concerning events and conversations on July 19
after Complainant's #5303 loader broke down with hydraulic pump
failure follow:

      . . . Like he described before, I told him to let the
      Euclid to pull for under the loader and I knew that he
      can drive it to the upper plant--to the plant--and I
      told Homer we've got a problem with a loader, don't
      want to tilt. Homer looked at it and says the pump went
      out. I said to him, how long will it take to fix it. He
      said approximately about two days by the time I get
      parts and all that. I said okay.

      I looked at Mr. Cole and I said, Cole, we've got 5312
      over here which is generally our spare loader for a few
      hours or a day or two, will you get the loader and go
      down to the pond to continue working, we've got three
      other guys working over there and he said, no, I won't
      go on the loader. Homer Pennington asked him why. He
      said I just don't like it; I won't run it. And he
      proceeded to go back into the loader 5305 loader which
      he was running, picked up his lunch, came down and
      started walking away. I said, you mean you are
      quitting? He turned around and said to me, he said, no,
      are you going to fire me? I said I don't have no reason
      to fire you; all I am asking you is to continue working
      so we can keep doing bailing of all the silt out of the
      pond. And as soon as your loader is ready, you will go
      back to your loader.

           He said, no, I won't do that. I don't like
      the loader. Homer said--in fact Homer Pennington
      said oh, you are one of those operators that

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~186
likes to ride Cadillac like, not Chevrolet. I
said what is the difference between operators?
And he continued to walk away and my remark to
him was if you walk away from the plant, that
means you just quit. And he continued to just
walk away. (T. 134-135).

                  *      *      *      *      *

   Q. So you went immediately to work loading trucks while
   someone went to get another operator to relieve you so
   you could continue with your duties?

   A. Exactly.

   Q. Did you feel at the time you got on that loader that
      is was unsafe?

   A. No. If I felt I would get hurt on the loader I
   wouldn't get in it, especially when we have to travel a
   short distance over the highway with a loader.

   Q. Prior to that date, do you recall Clyde Cole telling
   you and/or Homer in your presence about the center pins
   being bad to the point of this loader being unsafe?

   A. No, he never mentioned it to me anything about being
   unsafe. He run the particular loader, I believe, was
   twice, and a short period of time-five hours or four
   hours. Whenever he is loaded, he will go around and he
   will use that one and I think it happened twice in the
   short time that he was with us. He never got to run 12
   on Soledad.

   Q. Did he ever request from you that the loader be
      red-tagged because it was unsafe?

   A. Never.

   Q. When he refused to run 5312 did you tell him? "Go
      home."

   A. No.

   Q. Did he volunteer to shovel on the conveyor belts and
      do other work in lieu of running a loader?

   A. No, he never asked for anything else.

   Q. So when he left, what did you assume his intentions
      were?

   A. He was quitting. (T. 136-137).

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Mr. Moran contradicted Complainant and denied telling him on the
following morning that he (Cole) had been replaced, pointing out
that Mr. Cole was never replaced. (T. 147-148). Mr. Moran also
credibly testified that because of the way such heavy equipment
is built it has a center pin and that "they wear a little they
feel like they are going to fall apart, but that does not mean
they are unsafe." (T. 150). It also appears that Curtis does not
have the equipment to change such pins (Tr. 155, 158) which
further supports Mr. Moran's testimony and deletes the viability
of Complainant's position on this point. (Footnote 11)

 Mr. Moran's opinion that Loader #5312 was safe to operate

was shored up to some extent by the fact that he drove it after
Mr. Cole left on July 19, 1988, that two other employees also
drove it without complaint, and that no repairs were made on it.
(T. 156-157).

 Complainant did not actually establish that Loader #5312 was

unsafe due to defective center pins or the other problems
complained of. Thus, in his deposition (Ex. C-21) Inspector
Wilson testified that during the MSHA inspection following Cole's
safety complaint that the backup alarm was working, that the
brakes were not checked during the inspection, that the union
representative, Mr. Pat Stubbins, felt there was nothing wrong
with the loader, and that Complainant was a "bitcher." (Wilson
deposition, pp. 15-17, 18). The other safety complaints made by
Mr. Cole not related to the loader were found not to have any
basis also. (Ex. C-21, p. 18).

 I conclude that the MSHA inspection following Complainant's

safety complaints supports the testimony of Mr. Moran that the
loader was not unsafe (see also T. 155-158), and that the center
pins were not replaced also casts serious doubt on the
reliability of Complainant's testimony generally.
(Footntoe 12)

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~188
Based on the foregoing findings, resolution of conflicts in
testimony based on observation of the demeanor of witnesses and
the harmonizing of testimony with the general record, it is
concluded

      a. that on July 19, 1988, Loader #5312 was safe to
      operate;

      b. that Complainant refused to operate such without
      justifiable reason for doing so;

      c. that Complainant's alleged belief that the loader
      was unsafe, assuming arguendo that such was in good
      faith, was not reasonable and accordingly was not an
      activity protected under the Mine Act, Bush v. Union
      Carbide Company, 5 FMSHRC 993, 997 (June 1983);

      d. that in refusing to operate Loader #5312 Complainant
      did not communicate safety concerns to his foreman,
      Juan Moran; (Footnote 13)

      e. that the termination of Complainant's employment
      occurred as a result of his voluntarily quitting
      employment and not as a result of his being
      contructively discharged by Mr. Moran by being given a
      choice between

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~189
operating an unsafe piece of equipment or being deemed
to have quit employment.(Footnote 14)

                                 ORDER

 Complainant's complaint of discriminatory discharge under

the Mine Act is found (a) to be without merit, and (b) to have
been untimely filed, and on these two independent bases, this
proceeding is DISMISSED.

                                Michael A. Lasher, Jr.
                               Administrative Law Judge

 1. The allegedly hazardous conditions investigated were

those mentioned in Mr. Cole's August 1, 1988, complaint, to wit,
bad center pins, poor steering, poor brakes, no back alarm, and
also poor condition of escapeway, lockouts not being used, tail
pulleys not guarded, and loose handrails.

 2. Insofar as the alleged hazards pertaining to Loader #5312

are concerned, the investigation was not dispositive one way or
the other whether the tail pin complaint made by Mr. Cole
actually showed unsafe conditions. (Ex. C-21, p. 15). The
deposition of the MSHA inspector, Bill Wilson, strongly indicates
that there was no basis to Mr. Cole's safety complaints about
Loader #5312, as well as the other items of his complaint (Ex.
C-21, Deposition pp. 15, 16, 17, 18 and attached notes pertaining
to Inspector Wilson's inspection).

 3. The sequence of various pertinent dates in 1988 is as

follows:
1. Cole hired: 5-16
2. Cole quit: 7-19
3. Grievance Filed: 7-20
4. MSHA Safety Complaint Filed: 8-1
5. MSHA Safety Complaint Denied (Negative Finding):
8-10
6. Cole's Grievance Denied: 11-2
7. MSHA Discrimination Complaint Filed: 12-15

 4. Complainant's grievance was filed the day after he quit

(I subsequently conclude he was not discriminatorily discharged)
and reflects his allegation that he was wrongly discharged and
his desire for reinstatement. Yet his first complaint with
MSHA--filed after his grievance--while mentioning that there was
a grievance proceeding alleges only safety complaints. I find
this inconsistent with a deliberate choice made at the time by
Cole to proceed through the labor agreement's grievance procedure
to redress any wrong about his employment status and to
simultaneously proceed against his employer with the MSHA safety
complaint. His testimony that he thought "everything was taken
care of" by the safety complaint does not ring with credibility,
but seems more to be calculated to skirt the ban of the 60-day
filing limitation. It was only after the failure of these first
two complaints that the discrimination complaint was forthcoming.

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Page 22

 5. Of which Respondent Curtis is a member.

 6. Even in arbritration, as the U.S. Supreme Court in

Alexander v. Gardner-Denver Company, 94 S. Ct. 1011, 415 U.S. 36,
39 L. Ed. 147 (1974) noted, ". . . the fact-finding process . . .
usually is not equivalent to judicial fact-finding. The record of
arbitration proceedings is not as complete; the usual rules of
evidence do not apply; and rights and procedures common to civil
trial, such as discovery, compulsory process, cross-examination,
and testimony under oath, are often severely limited or
unavailable." Such procedures are generally available in the Mine
Act proceedings before the Commission, however.

 7. One of the Board's findings from its proceeding, that

"Although at the time he (Cole) did not state why he believed the
loader was unsafe, he said at the hearing that since the loader
had to go on the highway he didn't believe it was safe because of
the steering," is found significant and mentioned subsequently
herein.

 8. There certainly appears to be good reason "to doubt the

quality, extensiveness, or fairness of procedures followed" in
the prior proceeding before the Labor-Management Adjustment Board
insofar as the determination of the "preclusion" questions are
concerned. See Montana v. United States, 440 U.S. 147 (1979).

 9. See T. 102, 140-141, 148, 169-160.

 10. I have considered this evidence as one of the factors

leading to the conclusion that Complainant's alleged safety
concern was unreasonable.

 11. See also Statement (Declaration) of Homer Pennington,

lead mechanic, attached to Respondent's Motion for Summary
Decision dated September 5, 1991, indicating that the center pins
were never replaced and remained on the loader until his
retirement in October 1990.

 12. In summary, the record in its entirety indicates that

foreman Moran, Master Mechanic Pennington, Union Representative
Pat Stubbins, and MSHA Inspector Bill Wilson all concluded that
there was no basis to Mr. Cole's safety complaints. Further, the
Labor-Management Adjustment Board, after deliberation (T.
165-166), denied Mr. Cole's grievance. I have considered this as
one of the factors to be weighed in resolving the conflicting
testimony of Moran and Cole in Moran's favor. In rejecting Mr.
Cole's testimony I also have considered that the safety
complaints concerning other matters involving the #5312 loader
did not prove out and that his explanation concerning the late
filing of his MSHA discrimination complaint, while tidy, was more
convenient than logical and convincing.

 13. Where reasonably possible a miner refusing to work

should ordinarily communicate, or attempt to communicate, to some
representative of the operator his belief in the safety hazard at
issue. At least one purpose of this rule is to weed out "work

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Page 23

refusals infected by bad faith." Secretary on behalf ofDunmire
and Estle v. Northern Coal Company, 4 FMSHRC 126 (1982).

 14. Secretary v. Metric Constructors, Inc., 6 FMSHRC 226

(February 1984).