Phillips v. Interior Bd. of Mine Operations Appeals
| Decision Date | 20 June 1974 |
| Docket Number | No. 73-1260,73-1260 |
| Parties | , 2 O.S.H. Cas.(BNA) 1017 Franklin PHILLIPS, Petitioner, v. INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent, Bituminous CoalOperators' Association and Kentucky Carbon Corporation, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joseph W. Justice, Pikeville, Ky., was on the brief for petitioner.
Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U.S. Atty., at the time the brief was filed, Walter H. Fleischer, and Karen K. Siegel, Attys., Dept. of Justice, were on the brief for respondent.
Guy Farmer, Washington, D.C., was on the brief for intervenor, Bituminous Coal Operators' Assn. Lynn D. Poole, Washington, D.C., entered an appearance for intervenor.
Robert G. Kelly and Charles Q. Gage, Charleston, W. Va., were on the brief for intervenor, Kentucky Carbon Corp.
Before HASTIE, * United States Senior Circuit Judge, and ROBB and WILKEY, Circuit Judges. WILKEY, Circuit Judges.
In this case the court is called upon to determine whether the discharge of coal miner Phillips, petitioner, was violative of the Federal Coal Mine Health and Safety Act of 1969 1 (hereinafter Safety Act). We find that Phillips brought himself within the penumbra of the Safety Act by notifying his foreman of defective equipment creating dangerous working conditions. Such safety violations, followed by worker notification to management and an ensuing disagreement, are not to be equated with a simple labor dispute; safety violations bring section 110(b)(1) of the Safety Act 2 into operation. We reverse the decision of the Board and reinstate the decision of the Administrative Law Judge.
Franklin Phillips was employed for two years by the Kentucky Carbon Corporation (Kencar) at its Kencar No. 1 Mine in Phelps, Kentucky. During the last four months of his employment he worked as a shuttle car operator, i.e., he received coal from a mechanized loader, transported it to a belt conveyer, and there unloaded it into a Roscoe which fed the coal to the belt. On 28 April 1971 Phillips was discharged orally by his foreman because of his failure to comply with an order to return to work, despite his belief that the working conditions were dangerous. Two days later a written discharge slip from Kencar topside management was presented to Phillips. 3
For several months prior to the discharge Phillips and other employees had raised complaints with their foreman, H. E. Edwards, concerning health and safety aspects of their work area. 4 Complaints centered on excessive coal dust and defective electrical wiring, serious problems of both health and safety underground. After the foreman failed to resolve satisfactorily these problems, complaints were taken to the members of the Mine Safety Committee. The Committee, which is provided for in the collective bargaining agreement, consists of elected representatives of the miners, who are authorized to investigate safety and health conditions and who may close an area of a mine if imminent danger to the men is threatened. The Committee was often able to insure that dangerous conditions were properly dealt with by the foreman, but several uncorrected conditions were reported to the Union District Safety Coordinator. 5
In January 1971 a spot inspection of the mine was made by a federal safety inspector. 6 He required the shutting down of a section of the mine in which Phillips worked because of loose coal and coal dust, and improper splicing on electrical equipment. 7 Corrections of these safety violations were undertaken, and the mine was reopened on the same date. However, a Federal Bureau of Mines Notice of Violation charged Kencar with excessive respirable coal dust between 18 March and 1 April 1971.
Both before and after the federal orders Phillips personally lodged complaints concerning excessive coal dust and improper wiring with the foreman and with the Mine Safety Committee. 8 His reports to the foreman were found by the Administrative Law Judge below to anger the foreman, to the point of his throwing objects to the ground and declaring that Phillips was a troublemaker. 9
One method of reducing coal dust used in the mine involved water sprays on the loader: water would be sprayed to wet down the coal and coal dust as the coal was poured into shuttle cars. The Administrative Law Judge found that while Phillips was employed as a shuttle car operator the sprays often were clogged and thus defective, requiring frequent cleaning. 10
On the day of the discharge Phillips reported to the foreman that the water sprays were not operating properly. After indicating that he would investigate the matter, the foreman left that section of the mine. The men found that the dust became too thick while working, and the loader operator Ermil Justice asked Phillips to help him clean out the sprays. When the foreman returned, according to Phillips, this exchange occurred:
The foreman come over while we were working on it and asked what was the matter. I told him we were trying to unstop the water and get water pressure on the loader. He said he was tired of that damned water situation and he was getting tired of it, he was going to put a stop to it one way or another. I said, 'I worked in the dust a long time and I can't get nothing done about and I'm not going to work in it.' He said, 'If you don't want to work in it, I'll just take you outside.' And I said, He said, 'As far as I'm concerned, you're fired.' And I said, 'Suit yourself, I'll just go right on outside like you told me.' 11
Phillips then left the mine, and on 30 April a written discharge was received by him. 12
This version of the events was accepted by the Administrative Law Judge as a correct account of what happened. It should be noted, however, that the foreman's testimony conflicted with Phillips'. 13
It appears that Phillips then spoke with his Union, the United Mine Workers, for the Union filed a grievance under the National Bituminous Coal Wage Agreement of 1968 on 6 May 1971 with the Union-Corporation Joint Board of Arbitration. The Union charged that Phillips was wrongfully discharged 'while helping the loader operator clean out water sprays on the loader to prevent a dust hazard at the request of the loader operator.' 14 The Arbitration Board referred the matter to an umpire for final decision. On 29 June 1971 he determined that the Union grievance should be denied, since evidence established that Phillips had refused to haul coal when ordered to do so by the foreman, and the Union had not shown such hazards as would justify refusal. However, the umpire also stated that he had 'no authority to interpret or enforce the regulations of the Federal Health and Safety Act,' and declined to rule on Phillips' asserted rights under the Safety Act. 15
Phillips then sought aid from the National Labor Relations Board in the form of a complaint against Kencar. This was refused by the Regional Director on 17 December 1971 on the ground that arbitration was required before 'striking,' unless there were abnormal working conditions, which were not in fact present in this case. 16
Up to this point, Phillips' efforts through both his Union and the NLRB had been unavailing, and it is important to note why. The Union Grievance Arbitration Board umpire declined to rule on Phillips' rights under the Safety Act, which are the rights now involved here. The NLRB Regional Director appeared to be completely confused as to what rights Phillips was asserting, the Director's rationale referring strangely to a collective bargaining agreement with a 'no strike clause,' that Phillips 'could not legally go on strike,' and that he 'was obligated to arbitrate his grievance.' This rather ignored the obvious fact that far from trying to go on strike, all Phillips wanted was his job back, and that he had tried arbitration, with the result that the umpire declined to rule on the one statute which could help him.
From the evidence as a whole, the ALJ concluded that the discharge of Phillips was
arbitrary and discriminatory against (Phillips) because of his activities in complaining to the foreman and the Mine Safety Committee about safety and health conditions and because of (Phillips') safety activities in assisting other miners in corrective maintenance to prevent exposure to excessive and hazardous coal dust. 19
And he further concluded
that the motivating factor in the discharge of (Phillips) was an intent to penalize him for such safety complaints and safety activities, and to set an example for other employees not to complain of safety and health conditions or interrupt production by making necessary safety adjustments and repairs. 20
On appeal the Interior Board of Mine Operations Appeals reversed the Administrative Law J...
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