920 F.2d 738 (11th Cir. 1990), 87-7484, Jim Walter Resources, Inc. v. Federal Mine Safety and Health Review Com'n

Docket Nº:87-7484.
Citation:920 F.2d 738
Party Name:JIM WALTER RESOURCES, INC., Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, on Behalf of Michael L. Price and Joe John Vacha, and, Respondents, United Mine Workers of America, Intervenor.
Case Date:December 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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920 F.2d 738 (11th Cir. 1990)




Secretary of Labor, on Behalf of Michael L. Price

and Joe John Vacha, and, Respondents,

United Mine Workers of America, Intervenor.

No. 87-7484.

United States Court of Appeals, Eleventh Circuit

December 21, 1990

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[Copyrighted Material Omitted]

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James P. Alexander, Robert K. Spotswood, John W. Hargrove, Bradley, Arant, Rose & White, Birmingham, Ala., for petitioner.

L. Joseph Ferrara, Federal Mine Safety & Health Review Com'n, Washington, D.C., for Federal Mine Safety, etc.

Barry F. Wisor, U.S. Dept. of Labor, Office of the Solicitor, Arlington, Va., for William E. Brock, etc.

Robert H. Stropp, Jr., Patrick K. Nakamura, Stropp & Nakamura, Birmingham, Ala., for United Mine Workers, et al.

Edward D. Sieger, Mary-Helen Mautner, U.S. Dept. of Labor, Washington, D.C., for Secretary of Labor.

Petition for Review of an Order of the Federal Mine Safety and Health Review Commission (Alabama case).

Before KRAVITCH and CLARK, Circuit Judges. [*]


Section 105(c) of the Federal Mine Safety and Health Act of 1977 ("Act"), 30 U.S.C. Sec. 815(c) (1988), prohibits operators of mines from discharging or otherwise discriminating against an employee who has filed a complaint alleging safety or health violations at a mining facility. If a miner believes that he has been discharged in violation of this section, he may file a complaint with the Secretary of Labor ("Secretary"), who is required to initiate a prompt investigation of the alleged violation. Id. Sec. 815(c)(2). If the Secretary finds that the miner's complaint was "not frivolously brought," she must apply to the Federal Mine Safety and Health Review Commission ("Commission") for an order temporarily reinstating the miner to his job, pending a final order on the complaint. Id. The Commission is required to grant such an order if it finds that the statutory standard has been met. Id.

Although the Act does not require a hearing on the Secretary's application for temporary reinstatement, the Commission's regulations provide an opportunity for a hearing upon request of a mine operator, prior to the entry of a reinstatement order. See 29 C.F.R. Sec. 2700.44(b) (1990). The scope of such a hearing "is limited to a determination by [an Administrative Law Judge] as to whether the miner's complaint is frivolously brought," with the Secretary bearing the burden of proof on this standard. Id. Sec. 2700.44(c). Review of this determination may be sought in the Commission. Id. Sec. 2700.44(e).

If, upon investigation of a miner's complaint, the Secretary also determines that section 105(c) has been violated, she shall immediately file a complaint with the Commission. 30 U.S.C. Sec. 815(c)(2). After affording

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an opportunity for a hearing, the Commission shall issue a final order granting appropriate relief, including final reinstatement of the worker. Id. Judicial review of such a final order may be sought in the appropriate Court of Appeals. 30 U.S.C. Sec. 816(a) (1988). However, if temporary reinstatement has already been ordered and the Secretary does not file a discrimination complaint within 90 days or determines that section 105(c) has not been violated, the ALJ may dissolve the temporary reinstatement order. 29 C.F.R. Sec. 2700.44(f).

In this case, two miners were discharged by Petitioner Jim Walter Resources, Inc. ("JWR") for allegedly failing to comply with its mandatory drug testing program. The Commission, however, temporarily reinstated these miners on the grounds that they had been discharged in violation of section 105(c) for their active role in reporting health and safety problems at the mine. Because we find that there was substantial evidence to support the Commission's conclusion that the miners' complaints were "not frivolously brought," the order temporarily reinstating the miners is AFFIRMED.


  1. Facts

    Due to an ongoing substance abuse problem among its work force, JWR implemented a mandatory drug testing program for both management and hourly employees effective January 1, 1987. Under the program, any employee may be tested if he is reasonably suspected of substance abuse. In addition, any employee whose duties, whether by job title or elected office, involved safety was also subject to random testing up to four times a year. Management employees subject to such random testing include safety inspectors, associate safety inspectors, section foremen, maintenance foremen, washer foremen, and industrial relations supervisors. The only hourly employees subject to random testing are safety committeemen.

    Miners Michael L. Price and Joe John Vacha spent a large portion of the workday serving as safety committeemen. Safety committeemen are elected by the miners and have wide-ranging responsibilities for insuring mine safety, including inspection and notification duties under federal mine safety laws, handling of all safety grievances under the collective bargaining agreement, and the reporting of all mine hazards to management. The record indicates that Price and Vacha had garnered reputations for being exceptionally active in their elected duties and that each had brought a large number of safety complaints and grievances during their tenure as safety committeemen. JWR attempted unsuccessfully to fire Price for his safety-related activities in mid-1986 and had disciplined him twice for his safety activities in 1983 and early 1986. In addition, Vacha testified that he had been removed from his job as a continuous mine operator and placed in an office position because he refused to operate his continuous mining machine in the presence of methane.

    The ALJ found that Price and Vacha had been subjected to crass humor and harassment by management personnel in connection with the testing program both before and shortly after its inception. Before JWR's drug testing program went into effect, Price had notified two management supervisors, Andrews and Hendricks, in November 1986 that he had trouble urinating in the presence of other people and was ridiculed for this problem by Hendricks. In late 1986, Andrews jokingly displayed to Price and Vacha a urine specimen bottle with the notation "Mike Price UMWA". Another JWR management official, Donnelly, reportedly told Price and Vacha that the drug testing program could be used to get rid of them. As Price was filling out papers after a safety inspection, a management official placed a styrofoam cup labeled "Mike Price, safety committeeman, practice cup" in front of Price and Vacha. In February 1987, while Price and Vacha were conducting a union safety inspection, Andrews reportedly picked up an empty canister and told them that this was their "practice cup" and that they should "practice up."

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    JWR directed that all management safety personnel and union safety committeemen at each of its mines should be tested on March 2, 1987. Price and Vacha were notified on the morning of that date that they would be required to provide urine samples after their shift concluded. After reporting to the mine office around 3:30 p.m., both Price and Vacha unsuccessfully attempted to provide urine samples over the next four hours, despite the consumption of water, coffee, and soft drinks. At each attempt, a management supervisor accompanied Price and Vacha into a small restroom for the purpose of observing the specimen production. Vacha, who had taken medication that morning for a nervous stomach and diarrhea, told his supervisors that he had difficulty urinating in a bottle.

    At 6:45 p.m., Rayford Kelly, the industrial relations supervisor at the mine, warned Price and Vacha that they would be suspended with intent to discharge if they failed to furnish a specimen within 30 minutes, and Vacha responded that he could not be made to urinate. After this warning, Price offered to go into the bathroom naked if he could urinate alone, but this offer was refused. Price and Vacha's request that they be allowed to return in the morning to provide the sample was also denied. In addition, Vacha testified that Kelly told the miners that they could avoid taking the test only if they resigned from the safety committee. At 7:25 p.m., after a second five-minute ultimatum, Price and Vacha were suspended by Kelly with intent to discharge for insubordination. JWR collected 43 other urine samples without incident on March 2 and 3 from both management and union safety personnel; the only two individuals who failed to furnish samples were Price and Vacha.

    During the next day on March 3, Price and Vacha submitted to drug screening tests at medical facilities with negative results. Although neither Price nor Vacha was ever suspected of substance abuse, JWR refused to accept these test results or to reinstate them. Price and Vacha filed grievances under the collective bargaining agreement and discrimination complaints with the Secretary.

  2. Procedural History

    1. Arbitrator's Decision. Prior to the events in the instant action, the Intervenor United Mine Workers of America ("Union") and JWR reached a settlement in arbitration on January 29, 1987 under which JWR was allowed to implement its drug testing program, but the Union reserved the right to file grievances on behalf of individual employees subject to it. As a consequence of this settlement, Price and Vacha's grievances were referred to arbitration. In an award dated April 13, 1987, the arbitrator denied Price and Vacha's grievances and found that JWR had justifiable cause for discharging the two miners for insubordinate conduct. The arbitrator found that the miners had no protected right to refuse to furnish...

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