Davis v. Kitt Energy Corp.

Decision Date21 December 1987
Docket NumberNo. 17668,17668
Citation365 S.E.2d 82,179 W.Va. 37
CourtWest Virginia Supreme Court
PartiesJames L. DAVIS v. KITT ENERGY CORP. KITT ENERGY CORP. v. James L. DAVIS and West Virginia Coal Mine Health & Safety Board of Appeals.
Syllabus by the Court

1. "The Legislature has established a clear and unequivocal public policy that the [Division] of Mines shall have as its primary purpose 'the protection of the safety and health of persons employed within or at the mines of this state.' W.Va.Code § 22-1-2 (1981 Replacement Vol.)." Syllabus Point 4, United Mine Workers of America v. Miller, --- W.Va. ----, 291 S.E.2d 673 (1982).

2. W.Va.Code, 22A-1A-20, prohibits retaliatory conduct by employers against mine employees because of their reporting of violations of the Mine Safety Act.

3. A mine safety committeeman who communicates a safety violation under the Mine Safety Act and enforces a procedural right given under the collective bargaining wage agreement, and who thereafter is subject to discrimination by his employer as a result thereof, is entitled to assert the protections afforded by W.Va.Code, 22A-1A-20.

4. A miner against whom an arbitration decision has been rendered under a collective bargaining agreement involving a safety claim is not foreclosed from pursuing a discrimination remedy under W.Va.Code, 22A-1A-20.

Webster J. Arceneaux, III, Charleston, Michael J. Aloi, Fairmont, for Davis.

Joseph M. Price, Charleston, for Kitt Energy.

Charles G. Brown, Atty. Gen., Steve Barcley, Asst. Atty. Gen., for Coal Mine Health & Safety Bd.

MILLER, Justice:

This case presents two questions regarding the application of W.Va.Code, 22A-1A-20, 1 the anti-discrimination section of our "Mine Safety Act." First, we must determine whether a demand by a safety committeeman to withdraw workers from a mine due to a safety hazard is an activity for which discrimination is prohibited. Second, we consider whether a prior arbitration decision which is adverse to the miner bars a statutory remedy for discrimination. I.

James L. Davis, the plaintiff below, is employed by Kitt Energy Corporation as an underground coal miner at its No. 1 Mine in Philippi, West Virginia. Until his removal in 1982, he served as chairman of the Mine Health and Safety Committee, a local body provided for under the mine's collective bargaining agreement. See Art. III, § d of the National Bituminous Coal Wage Agreement of 1981. The committee is comprised of a number of experienced miners who are employed at the mine and appointed by the local union. It provides liaison between the miners and the employer on various matters of mine safety and health.

At 2:10 a.m. on September 1, 1982, a broken water main was discovered at the "C" and "D" track switch area of the mine. Repair work was immediately commenced. As a result of the break, water accumulated for a distance of 150 feet along "D" track, a designated escapeway. 2 Though the depth of water along the track is disputed by the parties, it exceeded twenty-four inches at maximum. A portable pump was installed by Kitt to remove the water from the track. The water condition was apparently not reported by the fire boss during the preshift inspection. 3 At 7:30 a.m., a longwall crew began to work inby the switch area on its scheduled shift.

When Mr. Davis arrived at the mine shortly after 7:30 a.m., he was orally advised of the water accumulation in "D" track by other workers. He immediately approached F.R. Jacobs, the mine superintendent, and demanded a withdrawal of workers from the area. Mr. Jacobs objected, and observed that "D" track was passable and did not pose an imminent danger. Mr. Davis disagreed. He then invoked the authority, conferred upon safety committeemen by the wage agreement, to demand an immediate withdrawal of mine personnel where an imminent danger is believed to exist. 4 Mr. Jacobs promptly complied with the demand.

Mine inspectors were advised by telephone of the water condition, and within an hour two federal inspectors arrived at the mine. These inspectors, together with Mr. Davis and three Kitt representatives, investigated the affected area of "D" track. A citation was issued for the presence of floodwater in an escapeway, a violation of 30 C.F.R. § 75.1704. 5 However, no imminent danger was cited by the inspectors. 6 State inspectors did not conduct a physical examination of the mine but, after a telephone conference, concurred in the findings made by the federal inspectors.

After the inspection was completed, Mr. Jacobs ordered the crew to return to work inby "D" track. Minutes later, Mr. Davis "dangered off" the area and again demanded a withdrawal of workers. Kitt complied and production remained idle until the water was removed at 1:30 p.m. Later in the day, Mr. Davis was advised by Kitt management that it had removed him from the safety committee pursuant to procedures outlined in the wage agreement. The stated reason for the removal was that his two withdrawal demands had been arbitrary and capricious. 7

On September 7, 1982, Mr. Davis brought a grievance challenging his removal from the safety committee. The matter was unresolved through the grievance process and was submitted to arbitration. On November 22, 1982, after two days of hearings, the arbitrator upheld the removal. He concluded that there was no imminent danger presented by the flooded escapeway because it was passable and alternate routes of escape were available. He also determined that the withdrawal demand was arbitrary and capricious, as it was contrary to the findings of the mine inspectors and unsupported by objective evidence.

Two weeks after the arbitration decision was announced, Mr. Davis petitioned for review of his removal pursuant to W.Va.Code, 22A-1A-20. He claimed that the removal was in retaliation for "notif[ying] ... the operator ... of [an] alleged violation or danger" at the mine, an activity for which discrimination is prohibited. Evidentiary hearings were held before the Coal Mine Safety Board of Appeals in March, 1983. On November 15, 1983, a majority of the Board determined as follows: (1) that a good faith demand by a safety committeeman to withdraw miners due to imminent danger is a protected activity under W.Va.Code, 22A-1A-20; (2) that removal of a safety committeeman for a protected activity is discriminatory; and (3) that the affected escapeway was not passable and, thus, was in violation of W.Va.Code, 22A-2-60. 8 The Board ordered Kitt to reinstate Mr. Davis to his post and to restore all accrued benefits.

Kitt refused to comply with the order, and Mr. Davis thereupon brought suit in the Circuit Court of Barbour County. A preliminary injunction was issued by the court on March 15, 1984. 9 Kitt answered and counterclaimed to obtain enforcement of the prior arbitration decision and to enjoin enforcement of the Board's order. It also sought a declaration that Mr. Davis was precluded from pursuing a discrimination remedy under W.Va.Code, 22A-1A-20, by the removal provisions contained in the wage agreement.

On July 9, 1984, the circuit court consolidated the suit by Mr. Davis and a direct appeal of the Board's order. The Board was granted leave to intervene in the consolidated suit. Kitt moved for summary judgment and, in an opinion dated April 17, 1986, the court granted the motion. The court reasoned that the only persons authorized by the Mine Safety Act to order a withdrawal of workers from the mine are designees of the Division of Mines. Mr. Davis, in demanding a withdrawal of miners from inby "D" track, acted exclusively under authority conferred upon him by the wage agreement. Thus, his remedy was controlled by the wage agreement and not by the Mine Safety Act. A final order incorporating the opinion was entered on July 28, 1986, and this appeal followed.

II.

Mining is by nature a hazardous industry. For this reason the Legislature has, through the enactment of mine safety legislation, adopted a strong public policy to insure the safety of personnel employed in mines throughout the State. We spoke to this point in United Mine Workers of America v. Miller, --- W.Va. ---, 291 S.E.2d 673 (1982), summarizing the law in Syllabus Point 4:

"The Legislature has established a clear and unequivocal public policy that the [Division] of Mines shall have as its primary purpose 'the protection of the safety and health of persons employed within or at the mines of this state.' W.Va.Code § 22-1-2 (1981 Replacement Vol.)." 10

See also, Syllabus Point 1 of State ex rel. Perry v. Miller, --- W.Va. ---, 300 S.E.2d 622 (1983).

Our Mine Safety Act, W.Va.Code, 22A-1-1, et seq. (1985), provides comprehensive regulation of all aspects of mine health and safety. At the heart of the Act is a system of periodic mine inspections which provides a mechanism for enforcement of safety mandates. State mine inspectors are given a wide range of authority and may cite safety violations, issue orders to abate violations and dangerous conditions, and order the withdrawal of miners from areas of imminent danger. W.Va.Code, 22A-1A-13. 11

The Legislature has also recognized miner participation as an indispensable adjunct to the enforcement process. As we emphasized in Miller: "Only those who work in the mine and are familiar with the day to day operations, are likely to have knowledge of the possible location of safety and health hazards." --- W.Va. at ---, 291 S.E.2d at 678. The Mine Safety Act guarantees miners a role in safety enforcement in two important ways. First, a miner representative is specifically authorized to accompany State inspectors during mine examinations. Second, any miner "may request the [State] to have an immediate investigation" of alleged safety violations. W.Va.Code, 22A-1A-12. 12

It is beyond peradventure that the purposes of the Mine Safety Act would be jeopardized if employers were permitted to retaliate against miners...

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