Gilbert v. Federal Mine Safety & Health Review Com'n
| Decision Date | 27 January 1989 |
| Docket Number | No. 87-1499,87-1499 |
| Citation | 866 F.2d 1433 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
| Parties | , 1989 O.S.H.D. (CCH) P 28,412 John A. GILBERT, Petitioner, v. FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION and Sandy Fork Mining Co., Inc., and Secretary of Labor, Respondents. |
Tony Oppegard, Hazard, Ky., with whom Stephen A. Sanders was on the brief, for petitioner.
Ronald E. Meisburg, with whom George R. Salem, Sol., Dept. of Labor, Dennis D. Clark, Counsel, Appellate Litigation, and Vicki J. Shteir-Dunn, Attorney, Dept. of Labor, Washington, D.C., were on the brief, for respondent Secretary of Labor.
Ann Rosenthal, Arlington, Va., and Colleen A. Geraghty also entered appearances for respondent Secretary of Labor.
Ronald E. Meisburg, Atty., Sandy Fork Mining Co., Inc., with whom Michael T. Heenan and William D. Florman, Washington, D.C., were on the brief, for respondent Sandy Fork Mining Co., Inc.
L. Joseph Ferrara, Attorney, Federal Mine Safety & Health Review Commission, also entered an appearance for respondents.
Before EDWARDS and WILLIAMS, Circuit Judges, and REVERCOMB, * District Judge, United States District Court for the District of Columbia.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
This case involves a petition for review of a decision of the Federal Mine Safety and Health Review Commission ("FMSHRC" or "Commission"). The petitioner, John Gilbert, a miner working for Sandy Fork Mining Company ("Sandy Fork"), claims that he was fired by Sandy Fork because of his refusal to perform work that he reasonably believed to be unsafe, and that this action by the employer violated section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 ("Act" or "Mine Act"), 30 U.S.C. Sec. 815(c)(1) (1982). The Commission adopted the finding of an Administrative Law Judge ("ALJ") that Gilbert lacked good faith when he refused to work; accordingly, FMSHRC rejected Gilbert's claim that he was the subject of a discriminatory discharge in violation of the Act. FMSHRC also held that Gilbert had no right to initiate an action in his own behalf under section 105(c)(3) of the Act prior to a determination by the Secretary of Labor ("Secretary") as to whether a violation of section 105(c) had occurred. Because Gilbert filed his complaint before the Secretary had made this determination, and because the Secretary subsequently filed a complaint on behalf of Gilbert, the Commission dismissed Gilbert's individual complaint. Gilbert petitions this court to reverse the Commission's dismissal of his individual complaint, and to set aside the Commission's judgment on the merits of his claim under the Act.
On the merits of the case, we can find no basis in the record before us to support the Commission's judgment against Gilbert. We therefore reverse and remand for further consideration by FMSHRC.
We also remand for further consideration of Gilbert's individual complaint. The ALJ found that, under then-extant Commission rules, Gilbert properly filed an individual action under section 105(c)(3) when the Secretary failed to act on his complaint within 90 days. The Secretary petitioned FMSHRC for discretionary review of the ALJ's determination on this point. Pursuant to the Secretary's petition, the Commission overturned the rule under which Gilbert had filed his individual complaint, and adopted a new rule that individual complaints may not be brought under section 105(c)(3) until after the Secretary explicitly rejects a miner's claim. This new rule was applied retroactively to cover Gilbert's complaint. Because Gilbert challenged the rule only in its retroactive application to him, we do not consider and express no opinion on the validity of the change in its prospective application. Nonetheless, because we can find no sufficient basis for the retroactive application of this change in policy, we reverse and remand FMSHRC's decision dismissing Gilbert's individual complaint.
John Gilbert was employed at Sandy Fork's No. 12 underground mine for three-and-a-half years prior to the incidents prompting his refusals to work on August 6 and 7, 1985. During the last two-and-a-half years of his employment, Gilbert was a continuous miner operator 1 on the evening shift from 3:00 p.m. to 11:00 p.m. He was described by his supervisor as a good employee. Joint Appendix ("J.A.") 239, 262-63.
Gilbert's dispute with Sandy Fork concerned the condition of the mine roof in the area in which he was working, the 002 section of No. 12 mine, which consisted of six entries. For several weeks prior to August 6, the 002 section had experienced difficult roof conditions caused by "hill seams," encountered when mining operations are conducted near surface outcroppings. A "hill seam" is a crack or fault in a mine roof that generally has mud or water seeping from it. Gilbert testified that rock had fallen on his mining machine during this two week period, J.A. 66-72; and, further, that on August 5, he and another miner operator had left certain work locations because of "working" hill seams, that is, those emitting creaking noises indicative of unstable roof conditions, J.A. 73-74.
Before starting work on the afternoon of August 6, Gilbert and the other continuous miner operator in his section expressed their continuing concerns to their Section Foreman about the roof conditions; the Foreman responded by giving them permission to work together operating one mining machine so that they could look out for one another's safety. Gilbert v. Sandy Fork Mining Co., 8 F.M.S.H.R.C. 1084, 1088 (1986). When the two reached the 002 section, the continuous miner operator who had worked the earlier shift told them that the roof was breaking up. Gilbert and his coworker then inspected the roof in the section before starting work. Id. The Section Foreman, and Sandy Fork's Chief Engineer and Acting Safety Director, also examined the 002 section on August 6 and 7. Testimony indicates, and the ALJ found, that the No. 3 entry had a hill seam and a stress crack in the rib and roof and that the crosscut approaching the No. 4 "kickback" 2 had a hill seam and stress cracks. Id. at 1088, 1090. While testimony also indicates that hill seams were present in other entries of the section, the ALJ found that there were no hill seams exposed in the No. 4 kickback itself. Id. at 1090. 3
After examining the conditions in this section, Gilbert told his coworker that he was going to refuse to finish the work in the No. 4 kickback. Gilbert then left the mine to speak with his section foreman again about the condition of the roof. Id. at 1089. In response to Gilbert's complaint, the section foreman suggested that they could build a few extra cribs, or roof supports, to strengthen the roof, or that the foreman could "stand with" Gilbert and his coworker to watch the roof as they cut the coal. This did not satisfy Gilbert, who left the underground mine to talk to someone higher in management. Id. He then spoke to the General Mine Foreman, who advised Gilbert to go home and return to work the following day to meet with the mine Superintendent and General Manager. 4 With management's permission, Gilbert left the mine. Although the Section Foreman proceeded to spend the remainder of the shift building more cribs in the No. 3 entry, there is nothing in the record to indicate that Gilbert was ever told of this work; and, in fact, Gilbert apparently never learned of these efforts because, during the night, a major roof fall occurred in the No. 3 entry and the area was "dangered off." Gilbert v. Sandy Fork Mining Co., 9 F.M.S.H.R.C. 1327, 1330 (1987). 5
On the morning of August 7, 1985, because of Gilbert's expressed concerns and because of the serious roof fall that had occurred in the No. 3 entry, the mine Superintendent and General Manager went underground to inspect the areas in question. Gilbert arrived at the mine office about 9:00 a.m., six hours before the start of his scheduled shift. Id. at 1331. While waiting for the managers, Gilbert was told by another miner of the roof fall. When the two supervisors returned to the office about 9:30 or 10:00 a.m., Gilbert asked what they intended to do to support the roof; they essentially replied that they were doing all they could given what they found underground. Id. They did not inform Gilbert of any specific steps that were being taken to improve the condition of the roof. Indeed, no one in management bothered to inform Gilbert of the roof fall that had occurred the night before. J.A. 62-63, 159, 300. When Gilbert specifically asked management about the size and location of the roof fall, he testified that he was told that it was "none of his concern." J.A. 63. 6 This testimony was not refuted by Sandy Fork.
When Gilbert perceived that his supervisors intended to do nothing to address his concerns, he again told them that he was afraid of the mine roof and requested alternative work in another mine. The supervisors told him that the only job available for him was his current position. Gilbert then handed in his safety equipment and left the mine, considering himself "fired." J.A. 64.
On August 8, an inspector from the Department of Labor's Mine Safety and Health Administration ("MSHA") inspected the mine. He determined that the roof fall was caused by "turning [a] cross-cut in the direction of an exposed hill seam," and he recommended that Sandy Fork take a number of precautionary measures in the future, including narrowing its entries, taking shallower cuts, and using larger roof bolts. Sandy Fork implemented these recommendations but never so informed Gilbert. J.A. 189-91, 312, 325-26.
Apart from the events on August 6 and 7, the record also indicates that Gilbert had narrowly avoided injury in two separate rock falls that occurred in section 002 during the two weeks...
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