Simpson v. Federal Mine Safety and Health Review Com'n

• Decision Date: 18 March 1988
• Docket Number: No. 86-1441,86-1441
• Citation: 842 F.2d 453,268 U.S.App.D.C. 457
• Parties: , 1988 O.S.H.D. (CCH) P 28,164 Robert SIMPSON, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 453

842 F.2d 453

268 U.S.App.D.C. 457, 1988 O.S.H.D. (CCH) P 28,164

Robert SIMPSON, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents.

No. 86-1441.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 1987.

Decided March 18, 1988.

Tony Oppegard, with whom Stephen A. Sanders was on the brief, for petitioner.

David T. Smorodin, with whom Peter A. Greene and Steven D. Cundra, Washington, D.C., were on the brief for respondent, Roy Dan Jackson.

L. Joseph Ferrara, Atty., Federal Mine Safety and Health Review Com'n, Washington, D.C., entered an appearance, for respondent, Federal Mine Safety and Health Review Com'n.

Ann Rosenthal, Counsel, Appellate Litigation, and Vicki P. Shteir-Dunn, Atty., Dept. of Labor, Washington, D.C., were on the brief for amicus curiae, Secretary of Labor, urging reversal of the Federal Mine Safety and Health Review Com'n decision.

Before RUTH BADER GINSBURG and WILLIAMS, Circuit Judges, and McGOWAN, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This case concerns the protection afforded by the Federal Mine Safety and Health Act, 30 U.S.C. Secs. 801 et seq. (Mine Act), to miners who refuse to work because of hazardous conditions. Robert Simpson claims that the operators of the Black Joe Mine responded to a protected work refusal on his part by constructively discharging him and later refusing to reinstate him, all in violation of section 105(c)(1) of the Mine Act, 30 U.S.C. Sec. 815(c)(1). An administrative law judge (ALJ) upheld Simpson's complaint against the operators, ¹ but the Federal Mine Safety and Health Review Commission (FMSHRC or Commission) reversed the ALJ's decision.

The Commission held that when Simpson left the Black Joe Mine, he was not protected by the Mine Act because he failed to communicate the reasons for his work refusal to the mine operator. Even if Simpson's work refusal attracted the Act's

protection, the Commission continued, the mine operators did not constructively discharge or otherwise discriminate against him. The constructive discharge standard announced by the Commission, however, appears to be inconsistent with the safety-forcing, miner-protective tenor of the Mine Act. Furthermore, we do not comprehend the Commission's reasons for holding that Simpson should not be excused from the communication requirement. We therefore reverse the Commission's order and remand the case for further proceedings consistent with this opinion.

I.

Petitioner Robert Simpson worked for 20 months in 1981 and 1982 at the Black Joe Mine in Harlan County, Kentucky, a facility operated by Roy Dan Jackson and the Kenta Energy Company. Employed as a scoop operator, Simpson left his job on September 21, 1982. Coal was extracted from the Black Joe Mine by cutting, drilling, and blasting an underground vein or "seam"; the loose coal was then gathered through the use of a scoop and hauled from the working area or "face" of the mine to a conveyor belt. Until his departure, Simpson performed his assigned work without any adverse comment or evaluation from the mine operators.

During most of Simpson's service at the Black Joe Mine, his foreman was Danny Noe, whose responsibilities included the preshift and onshift safety inspections required by the Mine Act and implementing regulations. See 30 U.S.C. Sec. 863(d) & (e); 30 C.F.R. Secs. 75.303, 75.304. Under these same provisions, preshift inspections are to be recorded in the mine office by the employee performing them. 30 U.S.C. Sec. 863(d); 30 C.F.R. Sec. 75.303. It was Danny Noe's practice, however, to report inspections by telephone to another employee, Charlie Patterson, who would enter the inspection, signing Noe's name, in the record book. Patterson was the mine's "outside man"; he worked aboveground, ordering needed parts and transmitting requests for equipment from the mine site to the mine office.

Noe left his post as foreman on September 3, 1982, apparently because of an injury, and from that day until some time after Simpson's departure no foreman or other supervisor attended to operations at the Black Joe Mine. Despite Noe's absence, Charlie Patterson continued to record inspections, routinely signing Noe's name in the inspection book, but neither the preshift nor the onshift safety inspections were actually performed. During this same period the mine headings, which previously had advanced along a straight path from the mine entrance, turned to the right.

This development worried Simpson and other members of his crew, for they knew from the mine map that they were at that point working in the direction of an "old works" or abandoned mine. Abandoned mines often contain accumulations of methane, water, or "black damp" (oxygen deficient air); if the advancing mine face were to pierce the old works, the miners would be exposed to the risk of explosion, drowning, or suffocation. Because of these dangers, the Mine Act and FMSHRC regulations require that test holes be bored before any work is started on a mine face within 200 feet of an abandoned mine when the abandoned mine itself cannot be inspected. 30 U.S.C. Sec. 877(b); 30 C.F.R. Sec. 75.1701. The Black Joe Mine headings had advanced 200 to 250 feet toward the old works by September 21. For want of a workable auger barrel at the mine, however, the crew was unable to drill the required test holes. Previously, Simpson and at least two other members of his crew had asked Charlie Patterson to get a test auger, citing the dangers that might lie in the old works, but no auger came until after September 21.

With no safeguard against the hazards confronting workers at the Black Joe Mine, and no supervisor to perform the required preshift and onshift inspections, Simpson decided not to return to work after the end of his shift on September 20, 1982. Two days later, when Simpson returned to the mine in the middle of a shift to collect his belongings, Charlie Patterson offered to Simpson, when he left his job, did not notify foreman Noe, mine operator Jackson, or anyone else in authority, of the reasons for his refusal to continue working at the Black Joe Mine. Simpson knew that Jackson's home was within a few miles of his own, yet Simpson apparently made no attempt to communicate with Jackson until December 1982. Simpson then told Jackson that he had left work in September because there was at that time no boss and no test auger at the mine. Having heard through a member of the crew that the mine now had both, Simpson asked Jackson for his job back. Jackson refused, saying he had no openings. Jackson also warned Simpson, "[n]ext time you'll learn not to get a wild hair."

put him back on the payroll and to pay him for a full day if he would resume work immediately. Simpson asked if there was either a boss or a test auger at the mine. When Patterson replied that there was no boss and no auger on site, Simpson responded that "it still wouldn't help me none."

Simpson thereupon filed a complaint with the FMSHRC, alleging that Jackson and Kenta Energy had discriminated against him in violation of section 105(c)(1) of the Mine Act, 30 U.S.C. Sec. 815(c)(1). ² Complaint, Joint Appendix (J.A.) iii. Section 105(c)(1) prohibits mine operators from discriminating against miners for asserting rights conferred by the Mine Act, including, in the Commission's view, the right to refuse to work in conditions the miner reasonably and in good faith believes to be hazardous. See Miller v. Federal Mine Safety & Health Review Commission, 687 F.2d 194, 195-96 (7th Cir.1982); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). After an investigation by the Mine Safety and Health Administration, the Secretary of Labor declined to prosecute and Simpson pursued the claim through private counsel. ³

After a hearing, the ALJ concluded that Simpson had "quit work in good faith because of concerns for his safety," and that Simpson's safety concerns were reasonable. Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454, 1460 (1984). The ALJ therefore held that Simpson's work refusal was protected by the Mine Act. Id. The Commission ordinarily requires those asserting Mine Act protection to communicate their reasons for a work refusal to the operator. Citing Commission precedent, the ALJ observed that this communication requirement is not critical when notice to the operator would be futile. Id. at 1460-61; see Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (1982). Jackson was aware of the The ALJ next held that Simpson had been constructively discharged for his protected activity, and that this discharge constituted unlawful discrimination under section 105(c)(1). Guided by decisions of this and other circuits under comparable antidiscrimination statutes, the ALJ reasoned that a constructive discharge under the Mine Act occurs when conditions are so intolerable that a reasonable miner would feel compelled to resign. Even if Jackson and Kenta Energy did not specifically intend that Simpson should quit, the ALJ stated, they had notice of and were responsible for the deplorable safety conditions at the Black Joe Mine, and those conditions would have led a reasonable miner in Simpson's position to quit. 6 FMSHRC at 1460-61. The ALJ also held that Jackson's refusal to rehire Simpson constituted a second act of unlawful discrimination. 6 FMSHRC at 1462. Accordingly, the ALJ awarded Simpson requested relief, including reinstatement, backpay, and attorney's fees. After an additional hearing, the ALJ held Jackson personally liable for the award. Simpson v. Kenta Energy Co., 7 FMSHRC 272, 286 (1985).

hazardous conditions at the Black Joe Mine that prompted Simpson's work refusal, the ALJ said, and further notice by Simpson would have been futile as that term is comprehended by the Commission. 6 FMSHRC at...