James H. Harmon v. Consolidation Coal Company
James H. Harmon v. Consolidation Coal Company (FMSHRC WEVA 86-375-D): Safety-committee discrimination complaint dismissed
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
James H. Harmon alleged that Consolidation Coal Company removed him from the Humphrey No. 7 Mine safety committee because of his safety concerns and activities. The judge found that Harmon and two other committeemen had shut down a track-haulage area after a derailment, but that no imminent danger existed and the committee's action was unauthorized under the applicable agreement. The judge also found no credible evidence that management removed Harmon to punish his safety enforcement activities or retaliate against him. The discrimination complaint was dismissed and his requested relief was denied.
Decision snapshot
- Cited authority: 30 U.S.C. §§ 801, 815(c)(1), 815(c)(2), 815(c)(3), 820(a), and 820(d); 29 C.F.R. § 2700.1
- Outcome: The discrimination complaint was dismissed and the requested relief was denied.
- Key point: Mine safety committee service is protected, but that protection does not prevent a non-discriminatory personnel action based on an unauthorized shutdown of a haulage area.
Full text (FMSHRC public release)
CCASE:
JAMES H. HARMON V. CONSOLIDATION COAL CO.
DDATE:
19870312
TTEXT:
Page 2
~549
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
JAMES H. HARMON, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEVA 86-375-D
v. MSHA Case No. MORG CD 85-9
CONSOLIDATION COAL COMPANY, Humphrey No. 7 Mine
RESPONDENT
DECISION
Appearances: Jeff Harris, Esq., Morgantown, West Virginia,
for the Complainant;
Thomas N. McJunkin, Esq., Jackson, Kelly, Holt
& O'Farrell, Charleston, West Virginia, for
the Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a discrimination complaint filed by
the complainant James H. Harmon against the respondent pursuant
to section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et seq. Mr. Harmon filed his initial
complaint with the Secretary of Labor, Mine Safety and Health
Administration (MSHA). Following an investigation of his
complaint, MSHA determined that a violation of section 105(c) had
not occurred, and so advised Mr. Harmon by letter dated May 12,
1986. Mr. Harmon then filed a pro se complaint with this
Commission, and he subsequently obtained counsel to represent him
in this matter. A hearing on the merits of the complaint was held
in Morgantown, West Virginia, and the parties appeared and
participated fully therein. The respondent filed a posthearing
brief. Mr. Harmon's counsel withdrew from the case after the
hearing, and did not file a brief. However, I have considered the
oral arguments made by Mr. Harmon's counsel during the course of
the hearing, as well as the respondent's arguments.
The complainant alleges that he was removed as a member of
the mine safety committee by mine management because of his
safety concerns and activities as a member of the safety
Page 3
~550
committee, and that his removal constitutes discrimination under
the Act. The respondent asserts that the complainant was removed
from the safety committee because he and the other members
"arbitrarily and capriciously" shut down a track haulage area of
the mine, and that his removal from the safety committee was in
full compliance with the terms of the applicable National
Bituminous Coal Wage Agreement of 1984. The respondent states
that the complainant's removal from the safety committee was also
challenged pursuant to the applicable contractual binding
arbitration procedures, and that his removal was upheld. In
addition, respondent states that the complainant's state
discrimination complaint challenging his removal from the safety
committee was rejected after protracted hearings before the West
Virginia Coal Mine Safety Board of Appeals.
Issues
The principal issue in this case is whether or not the
complainant's removal from the mine safety committee by the
respondent was discriminatory under section 105(c) of the Act.
Additional issues raised by the parties are disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301 et seq
2. Sections 105(c)(1), (2) and (3) and 110(a) and (d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(c)(1), (2) and (3).
3. Commission Rules, 29 C.F.R. 2700.1 et seq.
Factual Background
Mr. Harmon has been a member of the United Mine Workers of
America and an employee of the respondent for approximately 10
years. In May of 1984, he was elected by the local union at the
mine to serve on the Mine Health and Safety Committee, an entity
which exists at mines covered by the National Bituminous Coal
Wage Agreement of 1984 (Wage Agreement) by virtue of Article
III(d)(1) of that contract which provides in pertinent part as
follows (exhibit RÄ1):
ARTICLE IIIÄHEALTH AND SAFETY
Section (d) Mine Health and Safety Committee
Page 4
~551
(1) At each mine there shall be a Mine Health and Safety
Committee made up of miners employed at the mine who are
qualified by mining experience or training and selected by the
local union . . . .
**********
(3) The Mine Health and Safety Committee may inspect
any portion of a mine . . . . if the Committee believes
conditions found endanger the lives and bodies of the
Employees, it shall report its findings and
recommendations to the Employer. In those special
instances where the Committee believes that an imminent
danger exists and the Committee recommends that the
Employer remove all Employees from the involved area,
The Employer is required to follow the Committee's
recommendations and remove the Employees from the
involved area immediately . . . .
**********
(5) If the Mine Health and Safety Committee in closing
down an area of the mine acts arbitrarily and
capriciously, a member or members of such Committee may
be removed from the Committee. An Employer seeking to
remove a Committee member shall so notify the affected
Committeeman and the other members of the Mine Health
and Safety Committee. If the Committee objects to such
removal, the matter shall be submitted to and decided
by the appropriate panel arbitrator. If the Employer
requests removal of the entire Committee, the matter
automatically shall be submitted to arbitration and the
Committee will continue to serve until the case is
submitted to and decided by the arbitrator. A Committee
member shall not be suspended or discharged for his
official action as a Committee member. (Emphasis
added.)
On the morning of December 12, 1984, Mr. Harmon and two
other safety committeemen, Mr. Thomas Turpin and Mr. David
Laurie, acting in their capacities as safety committeemen, closed
a section of the mine's main haulage track line under
Page 5
~552
the purported authority of Article III(d)(3) of the Wage
Agreement. The area affected was the location of a derailment
which had occurred the previous day. On December 14, 1984, mine
management exercised its rights under Article III(d)(5) of the
Wage Agreement to remove the three committeemen from the safety
committee for acting arbitrarily and capriciously in shutting
down the track haulage 2 days earlier.
The removal of the safety committeemen was challenged and
submitted to binding arbitration pursuant to the terms of the
Wage Agreement. On January 28, 1985, Arbitrator Thomas M. Phalen
rendered a decision upholding the removal of Mr. Harmon and his
co-committeemen from the safety committee.
By a letter dated January 7, 1985 to Mr. Richard Bassick of
the Mine Health and Safety Administration, Mr. Harmon, Mr.
Turpin, and Mr. Laurie filed a complaint in connection with the
incident alleging discrimination under section 105(c) of the Act.
By letter of May 12, 1985, MSHA advised the complainants that
review of the matter revealed no basis for their complaint.
On January 21, 1985, the three aggrieved committeemen filed
another complaint challenging their removal from the safety
committee, this time alleging discrimination under state law.
After hearings, the West Virginia Board of Mine Safety Appeals
rejected the complaint in a decision dated June 17, 1986.
This matter is presently before me on the complaint of Mr.
Harmon that his removal from the safety committee constitutes
discrimination under section 105(c) of the Act. The two other
individuals who were removed from the safety committee with Mr.
Harmon have not joined in this complaint.
Complainant's Testimony and Evidence
James H. Harmon, the complainant in this case, stated that
he has been employed by the respondent for over 10 years, and
that he works at the Bowers Portal of the Humphrey No. 7 Mine. He
confirmed that he was working the day shift on December 11, 1984,
as a pumper, and that he was a member of the mine safety
committee, and had been a member since May, 1984. On that day he
learned that a derailment accident had occurred, with possible
serious injuries to a miner. He learned about the accident by
overhearing the mine dispatcher on the radio calling supervisors
to make them aware of the accident. Since he was a member of the
safety committee, Mr. Harmon wanted to go to the scene of the
accident, but
Page 6
~553
before doing so, he had to have the permission of his shift
foreman so that he could be relieved from his regular duties. He
travelled the main track trying to locate his immediate
supervisor to excuse him from work to go to the accident scene,
and after doing so, he eventually arrived at the scene of the
accident approximately and hour and a half later (Tr. 15Ä23).
Mr. Harmon confirmed that during his tenure as a safety
committeeman, he was never refused permission to be excused from
work to perform his safety committeeman's duties (Tr. 23). Mr.
Harmon conceded that he was not refused permission on December
11, 1984, but questioned why he had to be "passed around," and
had to go through so many supervisors to obtain permission to be
excused from work to go to the scene of the accident (Tr. 24).
Mr. Harmon stated that when he arrived at the scene of the
accident at the Sandstone Portal, he learned that the injured man
had been taken out of the mine, and that after walking some
distance, he was taken out by jeep and taken to the hospital by
ambulance for treatment of his injuries. Mr. Harmon identified
the injured miner as Dennis Van Kirk, and he stated that Bowers
Portal Superintendent Blaine Myers informed him that Mr. Van Kirk
had a hand injury and had been struck by a piece of rock (Tr.
26). Mr. Harmon stated that he observed rock which was about to
fall, and some rock falling in the area where the cars had left
the track, and clean up work was in progress. Mr. Harmon stated
that "everything seemed to be going in order, just some minor
things, but they were taken care of" (Tr. 30).
Mr. Harmon stated that he observed four roof arches that
were badly damaged in the accident, observed some bad roof, and
he described the conditions which he observed. He confirmed that
he was concerned about the exposed roof top conditions, gob which
had fallen on the track, and he believed that another derailment
could occur as equipment was allowed to run through the area. He
believed that the bad top conditions had existed prior to the
accident, and that the roof had been exposed when the derailment
damaged the arches and knocked out the roof cribs and planks (Tr.
32Ä34). Mr. Harmon stated that the derailed empty cars had been
removed, but he was concerned that people were working around the
bad top conditions. The gob had been cleaned off the track
"pretty fair," but one of the laborers, Joe Pattotta, complained
to him that "they're going to try and bring another trip up
through." Mr. Harmon was concerned that another trip of cars
would be brought through the area, and since cleanup had not
Page 7
~554
been finished, and the top was still exposed, and he had no doubt
that attempting to bring another trip of cars through would cause
another derailment (Tr. 35).
Mr. Harmon stated that Mr. Turpin complained to him that
there was a lack of adequate self rescuers available, and not
enough transportation to take the men working on the shift out of
the mine. Mr. Harmon confirmed that he ascertained that there
were sufficient self-rescuers and adequate transportation
available, and that Mr. Turpin's complaints were not valid. Mr.
Harmon stated that Mr. Turpin was concerned that there was not
enough transportation available for the men to leave the mine
since it was quitting time and the men wanted to go home (Tr.
37).
Mr. Harmon stated that "Everything was going smooth" and
that "they was making an honest attempt to correct the situation.
I had no problem with that" (Tr. 38). However, Mr. Harmon said
that he was upset when he heard general mine foreman Clarence
Amick order Sandstone Portal superintendent George Krynicki to
clear the area so that a trip of coal cars could be brought
through. Mr. Harmon explained his efforts to prevent additional
coal car trips from coming through the accident area as follows
(Tr. 39Ä43):
I requested Blaine to not run no equipment through this
area. He asked me if it was dangerous. I repeated back
to him, "I request no equipment through this area." He
said, "Well, do you feel it is dangerous?" I said,
"Yes, I feel it's dangerous." He refused. He said,
"Jim, we want to run this trip through here." I said,
"No." For the third time I said, "I request that you
not run no equipment in here until you get the boards
up and arches tied together, so that there ain't going
to be anymore accidents. If I have to, I'll use the
threat of hanging a danger board." I use that
expression of hanging a danger board as a bluff in my
mind, because I am not allowed, even as a safety
committeeman, to hang a danger board, according to the
state law. The only person that can do so is a
certified person of the state. Knowing that, I used the
threat. I wanted to make my point clear that I wanted
the area closed down. He still refused, he said,
Page 8
~555
"Jimmy, you get out of the area because we're bringing a trip up
right now."
**********
THE WITNESS: Well, I asked him three times. As you have
stated, I have been on the Safety Committee, at that
point, seven or eight months. We've been on safety
runs, estimated ten or twelve safety runs up until that
point, that I had participated on. We had shut the
areas down throughout the mines for different reasons.
Rather, Dave Laurie has, as he is spokesman. He is the
chairman of the Safety Committee, and I am under him.
We had no problem. He asked to shut this area down long
enough to have the problem taken care of. I had to ask
him three times. After the first time I was shocked. It
just seemed after Mr. Amick gave the orders, something
just snapped in Mr. Krynicki and Blaine. They were
taking care of the area, I had no problem with that.
Then, I was shocked after I asked them the first time,
and I was shocked after I asked them the second time,
and I asked them the third time, and even using the
threat of hanging the danger board.
JUDGE KOUTRAS: Let me ask you this now. If they were
taking care of the problem, if it were taken care of
there, you had no problem. What was the problem? That
you felt that they should haveÄ?
THE WITNESS: The top was exposed, sir. There was no
roof support over that top.
JUDGE KOUTRAS: Were they aware of that?
THE WITNESS: Yes.
JUDGE KOUTRAS: Did they have some difference of opinion
with you as to the condition of the top?
THE WITNESS: They apparently, after the order of Mr.
Amick, was going to do what Mr. Amick said.
Page 9
~556
JUDGE KOUTRAS: Was Mr. Amick there?
THE WITNESS: He was outside using the phone for
communications.
JUDGE KOUTRAS: So, Mr. Amick was outside telling them
where to run the trip through. Was he aware of the
situation and what the conditions were?
THE WITNESS: I don't know if George or Blaine made him
aware of the situation.
JUDGE KOUTRAS: Let us assume that they did.
THE WITNESS: If they made him aware of the situation,
of the bad top, and he run the coal through anywaysÄ.
JUDGE KOUTRAS: No. Let us assume that they told Mr.
Amick that the top is not that bad, or whatever. Let us
assume that Mr. Krynicki and Mr. Myers felt that the
top was all right, contrary to what you felt. And they
communicated that to Mr. Amick. Do you think that when
Mr. Amick said to run coal, that he took them at their
word?
THE WITNESS: I could agree with that, yes.
Mr. Harmon confirmed that on prior occasions when Mr. Laurie
requested mine management to shut down an area of the mine until
it could be cleaned up, management agreed and had no problem. In
the case at hand, Mr. Harmon agreed that there was a difference
of opinion as to whether or not the prevailing conditions after
the accident warranted the closing of the area (Tr. 44). Mr.
Harmon confirmed that after his unsuccessful efforts to have the
area closed, he advised Mr. Myers that he was going to call in
the Federal and state agencies, and on his way out of the area,
he went to the track spur and attempted to contact the motorman
who was bringing in a trip at slow speed by radio to make him
aware of the situation, and to possibly convince him to invoke
his own miner's rights and not bring in the trip (Tr. 45).
However, he could not contact the motorman by radio, and by that
time the coal trip had gone through the area (Tr. 45).
Mr. Harmon stated that after the coal trip passed through
the area, Mr. Turpin, who was the union president, advised him
Page 10
~557
that he would contact safety committee chairman David Laurie at
his home to advise him of the situation. Mr. Turpin had no
authority to act as a safety committeeman at that time on the day
shift because he was filling in as the safety committeeman on the
midnight shift (Tr. 46). Mr. Laurie could not be located, and Mr.
Harmon left the mine and went home to await a call from Mr.
Laurie, but he did not call him that day (Tr. 47). Mr. Harmon
confirmed that he did not initially call any Federal or state
mine officials because he wanted to clear it first with Mr.
Laurie. Mr. Harmon also confirmed that he was aware of the fact
that he could have called in the mine inspectors on his own, but
opted not to do so without first consulting Mr. Laurie (Tr. 49).
Mr. Harmon stated that before leaving the mine, he heard Mr.
Krynicki give orders for the oncoming shift to continue doing
cleanup work at the accident scene, and Mr. Harmon assumed that
additional coal trips would continue to travel through the area
(Tr. 50). Although he could have returned to the area on the
midnight shift to talk to the miners about any dangerous
conditions, and possibly advise them of their individual rights
not to work in the area that he considered to be dangerous, Mr.
Harmon stated that "that thought never entered my mind." Mr.
Harmon stated that his intent was to contact Mr. Laurie so that
they could both visit the area to decide what to do. Mr. Harmon
confirmed that he did not return to the mine during the next
intervening afternoon shift, and was still trying to contact Mr.
Laurie. He returned to the mine on the next midnight shift, which
was his next sheduled "safety run," and encountered Mr. Laurie at
that time (Tr. 53).
Mr. Harmon stated that after making Mr. Laurie aware of the
situation, they went to the accident area and observed the work
that had been done. Several men were still working in the area,
and safety precaution lights had been installed. Most of the
arches were not strapped, and Mr. Laurie climbed up and looked at
the roof conditions, and agreed with Mr. Harmon's assessment that
the roof over the arches was still bad. Mr. Harmon stated that he
was concerned that the arches were not completely installed, and
since the bad top was still there, he was afraid that if it fell,
it would affect the arches. Mr. Laurie was of the opinion that
the work could have been completed within an hour or so, and he
wanted to close the area down until the work was finished.
Company safety escort Ben Strahin advised Mr. Laurie that a coal
trip was coming, and it passed through the area. At that point in
time, Mr. Turpin and Mr. Harmon advised Mr. Laurie that they
would back him up in any decision to
Page 11
~558
close the area down, and Mr. Laurie advised Mr. Strahin that "we
want to shut this area down until we get the arch work finished."
Mr. Strahin replied that he did not have the authority to close
the area down, and Mr. Harmon stated that their intent was to
request mine management to stop production and shut the area down
until the work on the arches could be completed (Tr. 59Ä60). Mr.
Harmon explained the procedure for requesting management to close
an area down as follows (Tr. 61Ä62):
THE WITNESS: * * * Up until that point we never had a
problem. They disputed whether it's a violation, or if
it needed to be corrected. But, they always took care
of the situation. Because a copy of the safety runs is
sent to the district of the union, and one to MSHA, and
if necessary, to the state. If a serious situation
still exists after we make a request to the company, we
inform MSHA or the state that the situation exists, and
they come in.
We asked then to close the area down. Ben said, "I
don't have the power to do so." He asked him again, in
good faith, he wanted the area shut down so that the
work could be done and nobody would get hurt. That was
what our main concern was, that nobody get hurt. Or a
fatality. Ben again said, "I don't have the power to do
so." * * *
Mr. Harmon stated that after Mr. Strahin declined to shut
the area down, Mr. Laurie requested that foreman Rusty Tingler do
so. Mr. Tingler also declined, and after requesting Mr. Strahin
to contact Mr. Amick at his home, Mr. Strahin advised them that
they would have to go outside to telephone Mr. Amick. Before
leaving the area, Mr. Laurie told Mr. Strahin "I want the area
shut down, call Amick on the Phone." Mr. Strahin again declined
and replied to Mr. Laurie "If you want me to shut that area down
you are going to have to put it down on paper." Mr. Laurie then
wrote out a statement which he signed along with Mr. Harmon and
Mr. Turpin (Tr. 63, exhibit RÄ2), and the statement reads as
follows:
I fill (sic) this safety committee is acting in good
faith. In that where they had the wreck on day shift
they put in four new arches and did not tie them
together. We fill (sic) they could vibrate loose and
fall since they
Page 12
~559
are not tied together. Also we fill (sic) that additional support
should be put on top of the arches. Once the arches are tied
together we will allow them to start running coal again.
After executing the statement, Mr. Laurie asked Mr. Strahin
to call the dispatcher to stop all trips from coming through the
area, but Mr. Strahin declined. Mr. Laurie then called the
dispatcher himself and requested him to stop all traffic. One
trip which was on the way was allowed to pass through, and after
it passed through, the dispatcher shut the area down as requested
by Mr. Laurie (Tr. 64). Mr. Laurie then called the state and
federal mine inspectors. When they arrived, Mr. Harmon, Mr.
Laurie, and Mr. Turpin went back to the area with the inspectors,
and the conditions had been corrected. Mr. Harmon estimated that
it took an hour and a half to perform the work, and he stated
that "they called a lot of people up there to correct the
situation" (Tr. 68, 73).
Mr. Harmon stated that a safety committeeman had the
authority to request management to shut an area of the mine down,
and he was of the opinion that as a certified person, Mr. Laurie
had the authority to shut an area down under state law (Tr. 70).
Mr. Harmon confirmed that management had not given Mr. Laurie
permission to shut the area down, nor did management agree that
the area should be shut down. He also confirmed that Mr. Laurie
called the dispatcher and shut the area down (Tr. 71).
Mr. Harmon stated that while the majority of the corrective
work was finished when the inspectors arrived, MSHA Inspector
Boleck issued a citation "on strap and some guarding," and the
state inspector also issued a citation for a welding violation
(Tr. 72Ä73). The inspectors did not look over the arches to
examine the roof conditions as Mr. Laurie had done because the
arches were all in place and the inspectors accepted them as roof
support and issued no roof violations (Tr. 74). Inspector Boleck
asked Mr. Laurie if he was satisfied with the condition of the
roof arches, and Mr. Laurie stated that he was. The inspector
also agreed, and he permitted the area to be reopened, and
everything went back to normal (Tr 75Ä76).
Mr. Harmon stated that on December 14, 1984, at a regular
safety meeting between management and the safety committee, Mr.
Amick gave him and Mr. Turpin a letter stating that they acted
"arbitrary and conspicuously" and that he wanted them removed
from the safety committee (Tr. 75). Mr. Harmon
Page 13
~560
asserted that after his removal from the safety committee, he
felt that management, through Mr. Krynicki did not like him,
assigned him certain uncomfortable job tasks, made disparaging
remarks about him, and that the company safety escort would "dog
him" during the inspection rounds with inspectors (Tr. 86Ä90).
Prior to his removal from the safety committee, Mr. Harmon had
disagreements with management, and he asserted that his shift
foreman cursed him several times because he complained to him
about certain safety violations and upset him (Tr. 91). Mr.
Harmon also stated that Mr. Myers remarked that he spent a lot of
time in his office complaining (Tr. 92). Mr. Harmon stated that
he felt intimidated by Mr. Myers' statement that he made more
complaints than the other safety committeemen, and that Mr. Myers
"frowns when I go back to see him about a safety complaint" (Tr.
93). Mr. Harmon confirmed that he could think of no incidents of
intimidation prior to his removal from the safety committee (Tr.
94).
When asked by the Court to explain his reasons for filing
his complaint, Mr. Harmon responded as follows (Tr. 94Ä95):
THE WITNESS: I felt like I'm innocent of the situation
and that I have been discriminated against though. The
main reason why I was removed was because I fought for
the miner's rights and stood up, and was back in
Blaine's office more, probably, than anybody else. I
feel that they, I don't know the right word to say. I
filed that because I felt that was the proper way to do
things.
JUDGE KOUTRAS: No, but the point is, do you understand
the company's theory, and why they removed you and the
other two safety committeemen.
THE WITNESS: They said that I am acting arbitrary and
conspicuously. I don'tÄ
JUDGE KOUTRAS: Capriciously, all right.
THE WITNESS: Yes.
JUDGE KOUTRAS: That is conspicuous too, in that
context, but go ahead.
THE WITNESS: But, there was no underhandedness, there
was no sneaking around, nothing like that. I just
wanted to get the situation
Page 14
~561
corrected, and by trying to correct the situation over a safety
matter, they removed me off the Safety Committee. Now, we have
shut areas down before, and they never tried anything, had us
removed over situations of that nature. Even, as I mentioned,
when we had to call the federal inspector, Mitchell, up that one
time, they never said nothing to us.
JUDGE KOUTRAS: They never said anything?
THE WITNESS: They never tried removing us or nothing
like that. What's the difference now?
JUDGE KOUTRAS: On these past incidents, did they ever
do things that you felt were harassing or intimidating?
THE WITNESS: No, not really. I don't think so.
And, at (Tr. 97Ä98):
JUDGE KOUTRAS: Do you think that the company, in this
case, that Consolidation removed the three safety
committeemen because they called the state and federal
people in? Or do you think they removed you for some
other reason?
THE WITNESS: I believe they removed us because we shut
the area down, as Mr. Amick has stated, that that is
the bottleneck of the mines, and by shutting that down,
in a sense, close the whole mines down. Even though
they can remain working back there.
JUDGE KOUTRAS: I understand that. But, the company took
the position that you had no authority to shut it down.
That you acted contrary to the wage agreement, and the
arbitrator found the company was right on that score.
So did the State of West Virginia Board of Appeals,
when they reviewed the case. Did they not sustain the
company's position that they felt that the committeemen
acted outside their authority, by shutting the mine
down?
THE WITNESS: That's what they say.
Page 15
~562
JUDGE KOUTRAS: You do notÄ
THE WITNESS: I don't agree with it.
JUDGE KOUTRAS: Why do you not agree with it?
THE WITNESS: Because, we done everything legal, and
normal. Just like the past safety runs, and shut areas
down, we done everything.
JUDGE KOUTRAS: But, you never shut them down in the
past, have you?
THE WITNESS: Yes, we have. Yes.
JUDGE KOUTRAS: How did you shut it? You mean Mr. Laurie
has called up somebody and shut an area down?
THE WITNESS: Yes. We've had other areas shut down, yes
sir.
JUDGE KOUTRAS: But, is this with the agreement of
management? Did you request management to shut it down,
and then they shut it down?
THE WITNESS: Yes.
JUDGE KOUTRAS: Give me an incident where you requested
management to shut it down, they did not, and the
safety committeemen shut it down anyway.
THE WITNESS: I can't. I don't know of any.
JUDGE KOUTRAS: Never been any, have there?
THE WITNESS: No.
JUDGE KOUTRAS: This is the first one?
THE WITNESS: Yes.
In response to questions from the respondent's counsel, Mr.
Harmon stated as follows (Tr. 104Ä106):
Page 16
~563
Q. I was wondering, Mr. Harmon, if it is correct; the
discrimination that you are seeking here is the removal from the
Safety Committee?
A. Yes.
Q. What, in your view, was the reason that you were
removed from the Safety Committee? What conduct did you
engage in that resulted in that conduct, that response
by management, which you believe is discriminatory?
A. I tried to get the situation corrected on dayshift.
I even approached, in a sense, used the danger board
type threat, to have the situation corrected. And, it
was not. We have always asked management in the past to
correct things, and they went ahead. But, it seemed
that after they got an order. Mr. Blaine Myers and Mr.
Krynicki, got the order from Amick to run coal through
there anyway, they just went from safe to being unsafe.
My next response was to get ahold of Dave Laurie, and
have him act upon it.
Q. Excuse me. I probably did not ask the question very
clearly. You went through that very well before. Do you
believe that you have been removed from the safety
committee if the mine had not been shut down by the
safety committee?
A. We never had any action brought before us before by
shutting the haulage down for other situations.
Q. The question was, do you believe, you alleged you
would have not been removed from the Safety Committee,
if the mine had not been shut down. The Safety
Committee had not closed the mine, would you have been
removed from the safety committee, in your view?
A. I don't know.
Q. It is your view that the action that was taken, the
removal from the Safety Committee,
Page 17
~564
was related to your action in closing the mine down, is that
correct?
A. Yes.
Q. Have there been other occasions on which you have
notified federal or state officials, pursuant to your
state or federal mine rights?
A. Like I said, notified Mr. Mitchell one time, on that
particular track on the Seven North country.
Q. In those occasions, was anyone removed from the
Safety Committee?
A. No.
Q. The major difference here, was that the safety
committee acted under Article Three of the contract, to
close the mine down?
A. That's what Dave stated, and that's the first time I
ever heard him use that phrase, so to speak. He never
used that phrase in other situations.
Q. You are aware in the testimony to the state that Mr.
Laurie testified that his statement was, it was under
Article Three?
A. Yes.
Q. So, is that a fair statement? Under Article Three
you were acting to close the mine down?
A. That's what Dave said to Ben Strahin.
Q. What I am trying to get to, that it was your
exercise of your rights under the contract, to close
the mine down, that resulted in the management's
response, which was to remove you from the safety
Committee. Is that correct?
A. Yes.
Page 18
~565
Mr. Harmon confirmed that as a safety committeeman, he
made more safety complaints to mine management than did
Mr. Laurie or Mr. Turpin, and he estimated that he
brought 50 safety violations or complaints to management's
attention, and wrote up about 20 section 103(g) inspection
requests (Tr. 124). He confirmed that the remedy he is
seeking is his reinstatement as a safety committeeman (Tr. 126).
Mr. Harmon confirmed that on one occasion when he had a mine
inspector close a track area for an hour or two and issued
citations, no action was taken against any of the safety
committeemen by management (Tr. 127). On another occasion when he
threatened to shutdown the parking lot because of pot holes,
management corrected the conditions (Tr. 125).
Mr. Harmon stated that while he considered the conditions at
the accident scene to be an imminent danger, "something that
could cause a fatality right away," he did not use the phrase
"imminent danger" but used "dangerous or hazardous" (Tr. 129).
Even so, he conceded that he then went home to await a call from
Mr. Laurie, and that 8 hours had passed since he initially viewed
the conditions and men were still working there (Tr. 130Ä131). He
also conceded that he travelled through the area and did not warn
anyone about any "imminently dangerous" conditions (Tr. 134), and
that Mr. Laurie permitted a trip of cars to pass through the area
(Tr. 162).
Although Mr. Harmon was of the opinion that under section
103(g) of the Act, a safety committeeman has the authority to
shutdown any mine area, he conceded that under that section of
the law, he is only authorized to request an immediate inspection
of the area by an MSHA inspector, as opposed to shutting the area
down himself (Tr. 137Ä138). When asked why he did not exercise
his section 103(g) rights on December 11, Mr. Harmon responded
"we were trying to get the work done within the mines, instead of
having to go as far as calling a state or federal inspector in
there" (Tr. 139). Mr. Harmon acknowledged that at the time he
requested Mr. Myers to shut the area down, he did not refer to
Article Three of the Wage Agreement, nor did he use the phrase
"imminent danger" (Tr. 146).
Mr. Harmon confirmed that other than being removed from the
safety committee, he was not removed from his normal job
classification, was not discharged, and was not otherwise
disciplined (Tr. 163). He also confirmed that his removal from
the safety committee was made pursuant to the terms of
Page 19
~566
the contract, and that on past occasions when state inspectors
were called to the mine by safety committeemen, no action was
taken against them by management (Tr. 163Ä164). Mr. Harmon
conceded that in all of the prior instances when he made safety
complaints or requested section 103(g) inspections, management
reacted favorably to his complaint and took corrective action to
his satisfaction and did not harass or intimidate him (Tr.
173Ä174).
Respondent's Testimony and Evidence
Clarence Amick, General Mine Superintendent, testified as to
his background and responsibilities. He stated that under the
Wage Agreement the mine safety committee has the right to request
mine management to shutdown an area of the mine if they determine
that an imminent danger exists, and management is obligated to do
so (Tr. 184). In the instant case, Mr. Amick stated that any
imminent danger which may have existed at the time of the
accident at 11:00 a.m., certainly did not exist at 4:00 p.m. when
Mr. Myers and Mr. Krynicki spoke with him. Corrective action had
been taking place since the accident, and it was safe to proceed
with caution through the area at the time the committeemen shut
the area down (Tr. 186).
Mr. Amick confirmed that Mr. Harmon and the other safety
committeemen were removed pursuant to contract provision Article
Three, Section (d)(5) for arbitrarily and capriciously shutting
down the area in question. He denied that the removal was in any
way connected with the committee calling in the state and federal
inspectors, and he confirmed that they had done this in the past
on many occasions and were not removed. He stated that in all of
his years in mining, he has never before had to remove any
members of a mine safety committee (Tr. 187). He was aware of no
state or federal law that gives the safety committee the right to
close an area of the mine (Tr. 188).
Mr. Amick stated that mine management has never taken any
action against any committeemen for bringing safety matters which
need to be corrected to its attention, and he confirmed that the
committeemen in question did not lose their jobs, and their job
classifications were not changed in any way. Once the
committeemen were removed, they were allowed to stay on until the
arbitrator ruled on their case (Tr. 188Ä189).
On cross-examination, Mr. Amick confirmed that he sent
letters to the safety committeemen in question advising them of
their removal, and informing them of the reasons for his
Page 20
~567
action (Tr. 190). Mr. Amick believed that Mr. Harmon and the
other committeemen used bad judgment, and they had no right to
close the area. Mr. Amick stated that he relied on the judgment
of Mr. Myers and Mr. Krynicki, who have many years of mining
experience, in assessing any hazard or danger which may have
existed in the area at the time it was closed down by the safety
committee (Tr. 191).
Mr. Amick stated that he treated all three committeemen
equally, and since they all signed the statement at the time they
closed the area, he believed that it was a collective decision
and that they should all be removed from the safety committee
(Tr. 193). Mr. Amick stated that he has always encouraged the
safety committee to bring things that are wrong to his attention
so that corrective action may be taken. However, by shutting down
the mine area, the safety committee took charge of directing the
work force, which is solely management's prerogative (Tr. 195).
At the time the area was closed, no one mentioned any "imminent
danger," and since the mine was closed as a result of the
accident, and it was physically impossible to move any equipment
through the area. It remained closed until his superintendents,
Mr. Myers and Mr. Krynicki, "gave me the O.K. that it was safe to
proceed through at that time" (Tr. 197). The superintendents are
competent, and he relied on their judgment that the area was
safe, and no one informed him that Mr. Harmon felt differently
until sometime later (Tr. 199).
Mr. Amick confirmed that he made the decision to remove Mr.
Harmon and the other committeemen from the safety committee (Tr.
201Ä202). Although other options were discussed with his staff,
it was decided to remove them pursuant to the contract provision
in question (Tr. 203). He did not discuss the matter with the
affected committeemen because he didn't believe it was necessary,
and he believed that their position was clear by the statement
which they signed at the time they acted to close the area (Tr.
204).
In response to further questions, Mr. Amick confirmed that
the area in question was closed for approximately an hour and
forty-five minutes as a result of the action of the committeemen,
and the committee had no right to order the dispatcher not to
permit further trips through the area (Tr. 207). Mr. Amick stated
that he has never faulted Mr. Harmon for any actions he has taken
as a safety committeeman, and he confirmed that he has spoken to
his staff about some of the incidents of alleged harassment
alluded to by Mr. Harmon, and that he does not condone it (Tr.
209).
Page 21
~568
Mr. Amick stated that his decision to remove Mr. Harmon from the
safety committee was not influenced by his prior activities as a
member of the committee, and that "the main crux of the problem,
was, what happened that night" (Tr. 213). He stated that he has
always worked with the safety committees, but could not tolerate
the committee's action in shutting down the haulage on the
evening in question, and that this is the first time this had
ever happened (Tr. 215). He stated further as follows (Tr. 216):
A. They shut the mine down. They did it by directing
the work force, and they had no authority to do either
one. Even Section Three, that gives him the authority
to request that management shut the mine down, and
management has to do it, even then they don't shut the
mine down. Even when they exercise Article Three, if
you'll read it.
Q. That was your consideration then, in terms of
removal?
A. Yes.
Q. That was your only consideration?
A. That was my consideration at the time.
Mr. Amick stated that had the committee declared the area to
be an imminent danger, the superintendents on the scene, after
consultation with him, would have been obligated to close the
area. In addition, any individual miner could have exercised his
individual rights not to work in the area if he believed he was
in danger. If the committee had not acted arbitrarily and
capriciously in shutting down the area, he would not have removed
them from the safety committee. The committeemen did not declare
the area in question an imminent danger. On a prior occasion when
the committee called in a federal inspector on the Seven North
haulage area, they did not consider it an imminent danger, but no
action was taken against them for contacting the inspector (Tr.
219). Mr. Amick stated that the men who were delayed coming out
of the mine at the time of the accident were paid time and a half
for having to stay over their regular shift (Tr. 220).
Blaine K. Myers, Bowers Portal Superintendent, explained his
contacts and discussions with Mr. Harmon at the time of the
derailment on December 11, 1984. Mr. Myers confirmed that the
individual who was injured did not suffer any lost
Page 22
~569
time, and he worked the next day (Tr. 221Ä222). Mr. Myers stated
that he and Mr. Krynicki were at the scene of the derailment
looking over the situation and directing the rehabilitation of
the area, and the area had been closed until shortly after 4:00
when the first trip was allowed through (Tr. 223). Mr. Harmon was
concerned about some spillage, and mentioned no other conditions
which he believed to be hazardous. Mr. Myers stated that he asked
Mr. Harmon whether he considered the situation to be an imminent
danger, and that Mr. Harmon replied, "Well, I'll have the state
and federal inspectors here in the morning and we'll see" and
left the area (Tr. 225). At that point in time, Mr. Myers stated
that the top was not exposed, and that work had been done on the
arches, and he climbed up on the arches and he observed no top
areas which were not covered with wood (Tr. 226). Mr. Myers
further explained as follows (Tr. 227Ä229):
Q. Now, he testified earlier, that he demanded three
times that the area be closed down, because of
conditions of the roof which he says was exposed. How
do you respond to that?
A. I've got two responses. Number one, it's absolutely
untrue. He made no mention of any bad top to me,
throughout the day. Number two, when the roof was
exposed, the area was shut down. We were in the process
of rehabilitating the area, it was shut down. There was
nothing done in that area except the rehabilitation
work. It's beyond me, to understand where that comment
came from.
Q. After he turned and walked away, after you had asked
him whether or not there was an imminent danger, what
happened?
A. We moved the supply cars into the side track, called
the dispatcher and told him that the area was open, and
ready for traffic.
Q. Had Mr. Turpin been in the area during the day?
A. Mr. Turpin worked on the rehabilitation work the
entire day, yes.
Q. Would he have seen the top during the time it was
exposed?
Page 23
~570
A. Yes, he would have.
Q. Did he, you testified that Mr. Harmon did not, did
Mr. Turpin express to you, on the afternoon of the
11th, concerns that there was a dangerous condition, as
a result of the condition of the roof?
A. No.
Q. Did that area have to be fire bossed before it was
reopened?
A. Yes, it did.
Q. Was it fire bossed?
A. Yes, it was.
Q. Who was the fire boss?
A. Dill Kendall. He's the rank and file pumper who
portals at Mt. Morris, who fire bossed that area that
day.
Q. Did anybody, during the rehabilitation work, or
afterwards, during the haulage, once it was
recommenced, suggest that the conditions were unsafe
and invoke the rights not to work in the area?
A. No.
Q. Let us go back. After the haulage was started back
up, about what time was that?
A. Right at the four o'clock area, a few minutes
before, a few minutes after.
Q. Where was Mr. Harmon at this time?
A. At this time he was at Three North Junction waiting
for the trip to pass so he could proceed on to Bowers
Portal.
Q. Did traffic continue through the evening shift, to
your knowledge?
A. Yes, it did.
Page 24
~571
Q. Throughout that time, were there any complaints regarding the
safety of the haulage area?
A. Not to my knowledge.
Mr. Myers confirmed that on December 12, he was aware of the
fact that Mr. Amick was going to send Mr. Harmon and the other
committeemen letters removing them from the safety committee. Mr.
Myers was also aware that Mr. Harmon has contacted federal and
state mine officials, and no disciplinary action was taken
against him. He confirmed that the action taken against him to
remove him from the committee was solely pursuant to the contract
(Tr. 230).
On cross-examination, Mr. Myers reiterated that Mr. Harmon
made no mention of any bad top, and although the top was exposed
at the time of the accident for 3 or 4 hours, repairs were made
and the area was rehabilitated. During the rehabilitation work
where there was some unsupported roof, the men doing the work
were cautioned not to work in those areas or the top was
supported. He stated that "we didn't ignore the top. We paid
attention to it, and took care of what needed to be taken care of
in order to safely rehabilitate the area" (Tr. 233).
Mr. Myers stated that Mr. Harmon works out of his portal,
and he was aware of the fact that he was an active committeeman
and had made numerous complaints. Mr. Myers confirmed that most
of the complaints were made to him, and that the inspectors to
whom complaints were made were at his portal. Mr. Myers did not
believe that Mr. Harmon was taking his job "too seriously," and
he stated that he encouraged him to bring any safety problems to
his attention so that they could be taken care of. He stated that
he had no bad feelings or resentment towards Mr. Harmon, and that
he was not the only one who complained (Tr. 236). Mr. Myers
believed that Mr. Harmon was sincere in carrying out his safety
committee duties, but believed that he "over-reacted" when he
demanded that "we clean up this little pile of spillage there,
beside the track" (Tr. 238). He further explained as follows (Tr.
239):
Q. Do you think, in joining as a member of the safety
committee, in the closure of that area of the mine
after it had already been reopened, was a case of his
being mistaken, going overboard, if you will?
Page 25
~572
A. Well, when he agreed that that area should be shut down,
yes, that's going overboard. That's going out of bounds.
Q. You would agree that the committee exercised their
Article Three rights, and management's response under
the Article was appropriate?
A. Absolutely.
Q. Would that response, in your view, be appropriate
regardless of who the individuals involved were?
A. Yes.
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine 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 Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
801 (1981); Secretary on behalf of Jenkins v. HeclaÄDay Mines
Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Doge Corp., 3 FMSHRC 2508, 2510Ä2511 (November 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C.Cir.1983). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity. If an operator cannot rebut the prima facie case in
this manner, it may nevertheless affirmatively defend by proving
that it was also motivated by the miner's unprotected activities
alone. The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935
(1982). The ultimate burden of persuasion does not shift from the
Complainant. Robinette, supra. See also Boich v. FMSHRC, 719 F.2d
194 (6th Cir.1983); and Donovan v. Stafford Construction Company,
No. 83Ä1566, D.C.Cir. (April 20, 1984) (specifically-approving
the Commission's PasulaÄRobinette test). See also NLRB v.
Transportation Management Corporation, Ä-- U.S. ----, 76 L.Ed.2d
Page 26
~573
667 (1983), where the Supreme Court approved the NLRB's virtually
identical analysis for discrimination cases arising under the
National Labor Relations Act.
The crux of Mr. Harmon's complaint lies in his belief that
the respondent removed him from the mine safety committee in
retaliation for his vigorous activities as a member of the safety
committee. With regard to the safety committee's unilateral
closing down of the haulage section in question on December 12,
1984, the incident which precipitated his removal from the safety
committee, Mr. Harmon asserted that the committee had closed down
areas of the mine in the past and no action was taken by
management to remove them from the safety committee. Under the
circumstances, Mr. Harmon concludes that the respondent
discriminated against him by removing him from the safety
committee, and he implies that he was removed because of his
overall safety concerns and activities as a member of the safety
committee. Further, although stated in general and nonspecific
terms, Mr. Harmon also alleged that the respondent sought to
intimidate or harass him prior to his removal because of his
activities as a member of the safety committee, and he views his
removal from the safety committee as yet another incident of
intimidation by mine management.
Mr. Harmon's counsel conceded that Mr. Harmon's allegations
of intimidation and harassment prior to his removal from the
safety committee, made for the first time during the hearing,
were not included as part of his original discrimination
complaint (Tr. 113). When asked how Mr. Harmon intended to
substantiate these allegations, counsel responded "he has no
direct testimony, or anything like that. I guess, he is more,
seemingly to me, indicated that it was more of an attitude of
just expressions that were made to him, that kind of thing, that
indicated to him at the time" (Tr. 144).
The record establishes that Mr. Harmon was an aggressive and
active member of the mine safety committee. He alluded to some
fifty safety complaints which he filed with mine management, and
to the initiation of some 20 section 103(g) inspections which
resulted in at least 15 inspection visits to the mine by MSHA
inspectors (Tr. 173Ä174). However, Mr. Harmon conceded that mine
management always attended to, and took care of his complaints,
and in those instances where he and mine management had
differences of opinions as to the existence of any violative
conditions, he freely requested section 103(g) inspections by
MSHA with no interference by mine management (Tr. 173Ä174).
Page 27
~574
Mr. Harmon conceded that prior to his removal from the safety
committee, mine management addressed his safety complaints in a
manner that was to his satisfaction. He also conceded that he
performed his safety committeeman's job unimpeded by mine
management, and that he did so with no harassment or intimidation
by management (Tr. 174). Although he alluded to certain cursing
by a shift foreman, and certain remarks and "frowns" by
superintendent Myers over his safety committeeman's duties, Mr.
Harmon confirmed that he could think of no incidents of
intimidation by mine management prior to his removal from the
safety committee (Tr. 94).
Mr. Harmon conceded that in his capacity as a safety
committeeman he had occasions to call in state and federal
inspectors, and that mine management did nothing to harass or
intimidate him (Tr. 94). Mr. Harmon also conceded that management
never attempted to remove him from the safety committee as a
result of these past incidents (Tr. 95, 105). He also conceded
that when past requests for shutting down any mine area were made
to mine management, management reacted favorably to the requests
and never attempted to remove the safety committeemen for making
the requests (Tr. 97Ä98). Mr. Harmon also confirmed that during
his tenure as a committeeman, he was never refused permission to
be excused from work to perform his safety committeeman's duties
(Tr. 23).
After careful review of the record as a whole, I find no
credible testimony or evidence to support any conclusion that Mr.
Harmon was harassed, intimidated, or otherwise impeded by mine
management in the exercise of his duties as a member of the mine
safety committee prior to the time that he was removed from that
committee, and his allegations in this regard are rejected. I
conclude and find that Mr. Harmon has failed to make out a prima
facie case on this aspect of his complaint.
With regard to the concerted action by the safety committee
in shutting down the track haulageway, although the record
reflects that committee chairman David Laurie actually gave the
order to the dispatcher to shutdown the track haulage, and then
called in the state and federal mine inspectors, Mr. Harmon and
the other member of the safety committee were at the scene,
concurred and agreed with the decision to close the area, signed
the statement reflecting their joint responsibility for their
action, and they all waited for and accompanied the inspectors
back to the area after it was closed.
Page 28
~575
Under the circumstances, I conclude that each of the
committeemen, including Mr. Harmon, bear equal individual
responsibility and accountability for their collective action in
shutting down the area in question.
It is clear that Mr. Harmon had a protected right to serve
on the safety committee, and the respondent may not discriminate
against him because of his duties as a committeeman. Mr. Harmon
had a right to file complaints, request section 103(g)
inspections, and inform mine inspectors of conditions which he
believed were unsafe, and management is prohibited from
interferring with these activities, and may not harass,
intimidate, or otherwise unduly impede Mr. Harmon's participation
in those activities. However, Mr. Harmon's service as a member of
the safety committee does not insulate him from
non-discriminatory personnel actions, UMWA ex rel Billy Dale Wise
v. Consolidation Coal Company, 4 FMSHRC 1307 (July 1982), aff'd
by the Commission at 6 FMSHRC 1447 (June 1984); Ronnie R. Ross,
et. al v. Monterey Coal Company, et. al., 3 FMSHRC 1171 (May
1981).
The facts in this case do not suggest a situation in which
Mr. Harmon sought to exercise his own personal right to refuse to
work or to walk away from a condition which he believed to be
unsafe. Acting in concert with the other two members of the
safety committee, Mr. Harmon effectively closed the mine. Mr.
Harmon believes that he acted within his committeeman's authority
in shutting down the track haulage area, and he disagrees with
the two prior determinations which are adverse to his position.
Mr. Harmon's belief that he acted properly is based on his
assertion that the safety committee had closed the mine before
with no adverse reaction from mine management. However, Mr.
Harmon could cite no prior instances where the safety committee
closed any area of the mine, and he conceded that this had not
been done, and admitted that the incident which prompted his
removal from the safety committee was the first one (Tr. 97Ä98).
The respondent's assertion that the Commission lacks
jurisdiction with respect to any contractual matters under the
Wage Agreement, and has no jurisdiction to restore Mr. Harmon to
the safety committee are not well taken. If it can be established
that Mr. Harmon's removal from the safety committee was
discriminatory, the Commission and its Judges have broad
authority under section 105(c) of the Act to order an
"appropriate" remedy to abate any violation of that section,
Brock v. Metric Constructors, Inc., 766 F.2d 469, 472Ä73 (11th
Cir.1985).
Page 29
~576
It seems clear to me from the record in this case that Mr.
Harmon's removal from the safety committee was prompted by his
actions which resulted in the shutting down of the track haulage
area in question. It is also clear that the committee's action in
calling in state and federal inspectors to inspect the area after
they had shut it down had nothing to do with Mr. Harmon's removal
from the committee. Mr. Harmon conceded that the respondent
removed him from the safety committee because he and the other
members closed the track haulage area (Tr. 97). This action by
the committee effectively closed the mine and interrupted
production. Mr. Harmon also conceded that his removal from the
safety committee was made pursuant to the terms of the Wage
Agreement, and that he was not otherwise disciplined, and
suffered no change in his normal job classification (Tr. 163).
Under the circumstances, the critical issue presented is whether
or not Mr. Harmon had a protected right to close the track
haulageway.
Although Mr. Harmon voiced his displeasure over being
"passed around" so many layers of supervisors before finally
being permitted to go to the scene of the derailment, I find
nothing to suggest that management was deliberately or unduly
trying to prevent Mr. Harmon from going there, and he was
ultimately allowed to go, and arrived there later than he would
have liked. Mr. Harmon confirmed that during his tenure as a
committeeman, he was never refused permission to be excused from
work to attend to his safety committeeman's duties (Tr. 23). In
this regard, I take note of the fact that a safety committeeman
may not necessarily need management's permission to absent
himself from work to attend to his mine safety committee duties,
Local Union 1110 and Robert L. Carney v. Consolidation Coal
Company, 1 FMSHRC 338 (May 1979).
It is obvious that Mr. Harmon disagrees with the result of
the two prior adverse determinations affirming mine management's
action in removing him from the safety committee. Mr. Harmon's
disagreement with those decisions lies in his apparent lack of
understanding or failure to comprehend why he was not removed
from the committee in the past when the safety committee closed
certain areas of the mine. However, under the applicable Wage
Agreement provision in question, it is clear that the safety
committee has no authority to unilaterally close any area of the
mine. The committee's authority is limited to making
recommendations to mine management that miners be withdrawn in
those special instances where the committee believes that an
imminent danger exists. Once the committee communicates its
belief to mine management that an
Page 30
~577
imminently dangerous condition exists in any area of the mine,
management is obligated and required to follow the committee's
recommendations and remove the miners.
The respondent asserts that it was acting entirely within
its rights under the Wage Agreement in removing Mr. Harmon from
the safety committee, and that its action was an appropriate and
legitimate exercise of its contractual authority and discretion
to remove a safety committeeman who exceeded his authority in
shutting down an area of the mine, conduct which the respondent
views as clearly neither authorized nor protected by section 105
of the Mine Act. In support of its conclusions, the respondent
relies on the January 28, 1985, decision of Arbitrator Thomas M.
Phelan, and the June 17, 1986, decision of the West Virginia Coal
Mine Safety Board of Appeal, denying Mr. Harmon's discrimination
complaint under state law (Exhibits RÄ5 and R-11).
In the arbitration proceeding, the arbitrator concluded as
follows at page 17 of his decision:
For the reasons stated in the above analysis, I find
that there was no imminent danger in the area closed
down by the Safety Committee and there was no
reasonably based belief on the part of the Committeemen
that an imminent danger existed there. The action of
the Committeemen was therefore arbitrary and capricious
and warrants their removal from the Safety Committee.
They shall be removed for the duration of the 1984
National Agreement.
In its decision dismissing Mr. Harmon's state discrimination
complaint, the state board concluded in pertinent part as follows
in its order dismissing his complaint:
Mr. Kelleman and Mr. Snyder find, by a preponderance of
the evidence, that the case presented by the
Petitioners did not demonstrate that there was an
"imminent danger" under the law which would allow the
removal of the men and therefore there was no
discrimination involving any Petitioner in this case
and deny Petitioner Robert Harmon and Petitioner John
David Laurie their request to be placed back on the
Mine Safety Committee at the Humphrey Number Seven
Mine.
Page 31
~578
Although I am not bound by the prior decisions of the arbitrator
or the state board of appeals, I may nonetheless give deference
to an arbitrator's "specialized competence" in interpreting a
provision of the controlling Wage Agreement, Chadrick Casebolt v.
Falcon Coal Company, Inc., 6 FMSHRC 485, 495 (February 1984);
David Hollis v. Consolidation Coal Company, 6 FMSHRC 21, 26Ä27
(January 1984); Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d
Cir.1981).
The issue with respect to the existence of any "imminent
danger" at the scene of the derailment, and the asserted
justification for the safety committee's action in shutting down
the haulage area, was painstakingly considered during the two
prior proceedings concerning Mr. Harmon's complaints. I have
carefully reviewed the voluminous record of those prior
proceedings, and I am favorably persuaded as to the correctness
of these decisions, particularly with respect to the issue of the
existence of any imminent danger.
As pointed out by the respondent at pages 7Ä8, of its
posthearing brief, although Mr. Harmon asserted that the
conditions he observed on the afternoon of December 11, 1984,
constituted an "imminent danger," he showered, went home,
permitted 8 hours to pass, and was aware of the fact that men
were working in and travelling through the area, before taking
action to close it down. Mr. Harmon himself travelled through the
area, the area had been firebossed by the UMWA before haulage was
reestablished, and no miners, including Mr. Harmon or the other
members of the safety committee, exercised their individual right
not to work in the area (Tr. 132Ä136). Further, the record
establishes that traffic was moving through the area while Mr.
Harmon was at home, men were working to correct the conditions,
and in fact, after the area was ordered closed down by Mr.
Laurie, he permitted a trip of coal cars to pass through the
area.
Mr. Harmon conceded that he never used the term "imminent
danger" during his discussions with Mr. Myers, nor did he use
that term in his discussion of the contractual provision with Mr.
Myers (Tr. 139, 146). Mr. Amick and Mr. Myers corroborated that
neither Mr. Harmon or any other members of the safety committee
mentioned anything about any "imminent danger" at the time the
committee shut the haulage area down, and I take note of the fact
that the joint statement signed by Mr. Harmon and the other two
committeemen (exhibit RÄ2), justifying their action, makes no
mention of any "imminent danger."
Page 32
~579
Under all of the aforementioned circumstances, and on the basis
of the entire record as a whole, I conclude and find that it does
not support any conclusion of the existence of any imminent
danger at the time of the closing of the track haulage area by
the safety committee. Since no imminent danger existed, I further
conclude and find that the action by the safety committee was
unauthorized and contrary to the clear terms of the applicable
Wage Agreement provision relied on by the respondent to remove
Mr. Harmon from the safety committee, and that Mr. Harmon's
participation in that decision was not protected activity. I
further find no credible evidence to support any conclusion that
the respondent's action in removing Mr. Harmon from the safety
committee was motivated in any way by management's desire to
punish him, or to otherwise retaliate against him, for his
vigorous enforcement activities as a member of the safety
committee. I also conclude that the respondent's removal of Mr.
Harmon from the safety committee was well within its
discretionary managerial rights to direct the workforce and
manage its own mine.
CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and after
careful consideration of all of the credible evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a prima facie case of
discrimination by the respondent. Accordingly, the complaint IS
DISMISSED, and the complainant's claims for relief ARE DENIED.
George A. Koutras
Administrative Law Judge
Get today's answer for your situation
You just read what one judge decided for one employer in 1987, and it binds only those parties. Ezel checks the current MSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.