Consolidation Coal Co. v. Marshall

Decision Date30 October 1981
Docket NumberNo. 80-2600,80-2600
Citation663 F.2d 1211
Parties, 1981 O.S.H.D. (CCH) P 25,748 CONSOLIDATION COAL COMPANY, Petitioner, v. Ray MARSHALL, Secretary of Labor, on behalf of David Pasula, et al, and Federal Mine Safety and Health Review Commission, Respondents, United Mine Workers of America, Intervenor.
CourtU.S. Court of Appeals — Third Circuit

Anthony J. Polito (argued), Corcoran, Hardesty, Ewart, Whyte & Polito, Pittsburgh, Pa., for petitioner.

Linda Leasure (argued), U. S. Dept. of Labor, Arlington, Va., Ronald E. Meisburg, Michael A. McCord, Counsel, Appellate Litigation, T. Timothy Ryan, Jr., Sol. of Labor, Washington, D. C., Cynthia L. Attwood, Acting Associate Sol., U. S. Dept. of Labor, Arlington, Va., for respondent.

Lawrence Chaban (argued), Kenneth J. Yablonski, Yablonski, King, Costello & Leckie, Washington, Pa., for United Mine Workers.

Before ADAMS, HUNTER and SLOVITER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Consolidation Coal Company ("Consol") petitions for relief from a final order of the Federal Mine Safety and Health Commission ("Commission") directing the reinstatement of David Pasula with backpay. This court has jurisdiction pursuant to section 106 of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. § 816(a) (Supp. III 1979). Pasula walked off the job while operating a continuous miner machine at one of Consol's coal mines. He alleges that he did so in a good faith belief that there was a danger to his health and safety. Pasula was dismissed. He filed grievances challenging his dismissal for cause and alleging that he had been dismissed for exercising his safety rights. An arbitrator denied Pasula's grievances, and the Arbitration Review Board affirmed. The Secretary of Labor then filed complaints on behalf of Pasula and several other miners employed by Consol alleging unlawful discrimination by the company on account of the Pasula incident. One complaint was filed on behalf of William Kaloz, Ralph Palmer, James Colbert and Bryan Plute which alleges that they were discriminatorily laid off when they were sent home prior to the normal termination of their shifts of work on May 31 and June 1, 1978. Another complaint was filed on behalf of Lawrence Carden which alleges that he was discriminatorily laid off when he was sent home prior to the normal termination of the midnight shift on June 1, 1978.

Following a hearing, an administrative law judge ("ALJ") of the Federal Mine Safety and Health Review Commission held that Consol had unlawfully discriminated against Pasula by discharging him for complaining about a mine safety and health violation and that Consol's action was thereby in violation of section 105(c)(1) of the Mine Act. Accordingly, the ALJ ordered reinstatement and appropriate compensation. The Commission affirmed the ALJ's decision on the ground that Pasula was properly exercising his right to walk off the job, given to him by the Mine Act.

While Pasula may have had a right to walk off the job pursuant to section 105(c)(1) of the Mine Act, because of a good faith belief that there was a danger to his health and safety, he went further and shut down the continuous miner machine so that no one else on his shift could work. Pasula did not have a right to close down the continuous miner machine in such a manner. His dismissal, which the record shows was premised not on his walking off the job but on his closing down of the continuous miner machine, was thus not in violation of the Mine Act and the Commission's decision is therefore reversed.

FACTS

David Pasula was employed by Consol as an operator of a continuous miner machine. 1 At the start of the midnight shift on June 1, 1978, Pasula reported to work at Consol's Montour 10 underground coal mine. Upon arrival at the 1 Northeast section, Pasula checked his continuous miner machine prior to beginning the first cut. Upon starting the machine he noticed that its pump motor was unusually noisy. The machine had been damaged previously in a roof fall. In order to repair the miner, Consol's mechanics had replaced several gears. The excess noise was being caused by the failure of some newly replaced gears to mesh smoothly with the old gears. After operating the machine for approximately an hour and a half, Pasula stopped the machine and complained that the noise was giving him a headache, hurting his ears, and making him extremely nervous. Appendix at 79a, 86a, 94a-95a, 128a, 203a, 231a. Pasula immediately told Consol about the noise and about his problems by requesting the shift foreman, Earl Neal, to take a dosimeter reading to determine the noise level around the machine. In addition, Pasula informed the section foreman, Richard Humanic, that because the excessive noise was hurting his ears, he had turned off the machine while waiting for a dosimeter reading to be taken. Humanic directed Pasula to perform alternate work in another area of the mine, which Pasula proceeded to do.

Shortly thereafter, Earl Neal, James Bigley, Consol's assistant master mechanic, and John Cushey, the union's designated safety committeeman, arrived at the machine. They listened to the motor of the machine while it idled for a period of three to five minutes. Appendix at 80a, 211a. The machine's three other motors were not operating, nor was the machine cutting or loading coal. The safety committeeman took no noise level reading but, after listening to the machine for a few minutes, agreed with Consol (Neal and Bigley) that the machine was not so loud as to be unsafe. When Pasula returned, the shift foreman advised him of his opinion and directed Pasula back to work.

At this point, Pasula became extremely upset. 2 He again expressed his concern about exposure to excessive noise, and refused to continue operating the machine until a noise reading was made. Pasula requested alternative work and volunteered to perform the dosimeter reading himself. He also requested that the Company call a federal mine inspector to monitor the noise. The shift foreman, Neal, refused Pasula's requests and also denied him use of the mine telephone to call an inspector. Consol management once more asked Pasula to return to work and operate the machine. Pasula refused, and again demanded that a noise level reading be taken.

It was at this impasse that Consol management personnel (Neal) attempted to turn to Pasula's helper, John Fischer, with whom Pasula alternated in making cuts, to ask him to operate the machine. However, before Fischer had any chance to respond Pasula slapped the machine, cursed, and declared "nobody's going to operate it." 3 Appendix at 83a-84a, 17aa-173a, 204a-205a, 228a-229a. Pasula acknowledged on the record that he intended to include Fischer in his directive that no one was going to run the machine and that Fischer declined to operate the continuous miner machine only after Pasula had made this statement. After this incident, Neal then took Pasula and Fischer out of the mine and told Humanic, the section foreman, to bring the other members of the crew out as well. Because no one else in the crew besides Fischer and Pasula was qualified to run the continuous miner machine, no coal was produced that shift after Pasula shut the machine down.

On the day of June 1, the superintendent investigated the incident. The investigation resulted in Pasula being given a letter on the morning of June 2 advising him that he was being suspended with intent to discharge. The letter stated in pertinent part:

Management has concluded that your insubordination (refusal to perform assigned duties), interference with management of the mines and causing an unnecessary interruption in production and your past disciplinary record cannot be tolerated....

Appendix at 327a. Pursuant to the National Bituminous Coal Wage Agreement of 1978 ("the Wage Agreement") 4, a hearing-was held on June 5, 1978, and Pasula received a formal letter advising him of his discharge after the hearing.

PROCEDURAL HISTORY

This action involves three separate complaints filed by the Secretary of Labor under section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(1) (Supp. III 1979) which provides in part:

No person shall discharge or in any manner discriminate against ... a miner ... because such miner ... has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent ... of an alleged danger or safety or health violation...."

The Secretary's complaints allege that Consol violated section 105(c)(1) by laying off several miners and by discriminatorily discharging David Pasula following the described incident on the midnight shift of June 1, 1978. Resolution of Pasula's claim dictates the outcome of the additional claims.

Upon his dismissal, Pasula filed two grievances pursuant to the Wage Agreement. Both grievances were submitted to arbitration and a hearing was held on June 19, 1978 before Arbitrator David L. Beckman. At the conclusion of the hearing, Arbitrator Beckman issued an oral decision denying both grievances. He issued his written decision on June 29, 1978. 5 In deciding whether Pasula was justified in walking off the job in this case, Arbitrator Beckman considered the provisions of Article III, Section (i) of the Wage Agreement and judged Pasula's behavior in this case against the higher standard for finding "just cause" set forth under the collective bargaining agreement. That standard, as stated in Article III, Section (i)(1), provides:

No employee will be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyond the normal hazards inherent in the operation which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.

(Emphasis added.)...

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