Southern Ohio Coal Co. v. Marshall

• Citation: 464 F. Supp. 450
• Decision Date: 06 November 1978
• Docket Number: No. C-2-78-1041.,C-2-78-1041.
• Parties: SOUTHERN OHIO COAL COMPANY, Plaintiff, v. F. Ray MARSHALL, Secretary of Labor, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

464 F. Supp. 450

SOUTHERN OHIO COAL COMPANY, Plaintiff, v. F. Ray MARSHALL, Secretary of Labor, et al., Defendants.

No. C-2-78-1041.

United States District Court, S. D. Ohio, E. D.

November 6, 1978.

Alvin J. McKenna and D. Michael Miller, Alexander, Ebinger, Holschuh, Fisher & McAlister, Columbus, Ohio, for plaintiff.

James C. Cissell, U. S. Atty., and Nathaniel H. Speights, Asst. U. S. Atty., S. D. Ohio, Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

This is an action instituted under the provisions of the Federal Mine Safety Act of 1977, 30 U.S.C. § 801, et seq., and the Fifth Amendment to the United States Constitution. Plaintiff, the operator of underground coal mining facilities, seeks to enjoin the enforcement of an order of temporary reinstatement issued on September 12, 1978 by defendant Broderick, the Chief Administrative Law Judge of the Federal Mine Safety and Health Review Commission. On October 11, 1978 this Court issued a temporary restraining order, which was subsequently extended to October 31, 1978. This matter is now before the Court upon the government's motion to dismiss and the plaintiff's motion for a preliminary injunction. A hearing was held on plaintiff's motion and, based upon the evidence adduced at the hearing as well as the other materials presently before it, the Court now makes the following findings of fact and conclusions of law. Rule 52, Fed.R.Civ.Pro.

Findings of Fact

Plaintiff Southern Ohio Coal Company owns and operates Meigs Mine No. 2, located in Meigs County, Ohio. This mine has fourteen working sections, each section consisting of a regular crew of nine to twelve men. A section foreman is responsible for the overall health and safety of the men in his section. One of the primary duties of a section foreman is to make regular safety inspections during his working shift. Additionally, it is his duty under step one of the grievance procedure in effect at the mine to attempt to resolve any safety complaints brought to him by any member of his crew. If he is unable to resolve the complaint, the foreman takes the matter to his supervisor. Until June 12, 1978, defendant Terry L. Hill was employed at Meigs Mine No. 2 as a section foreman.

When a section foreman is absent from duty during his work shift, a replacement foreman is removed from his job in another part of the mine to take the place of the absent foreman. The replacement foreman is usually unfamiliar with the crew, and has, as a general rule, less experience than the absent foreman.

Foremen at Meigs Mine No. 2 earn fifteen days per year cumulative paid sick leave. In exercising their sick leave rights, the foremen are expected to call and report the reason for their absence, either before their work shift or as soon as possible thereafter.

The personnel supervisor at Meigs Mine No. 2 testified that Hill had missed work on an intermittent basis for a period of months and, in April, 1978, he sent written notice to Hill warning him that his work record was unsatisfactory. Hill continued to miss work, and on June 2, he neither appeared for work nor called in to report his absence. On June 7, Hill was discharged from his employment with the plaintiff, purportedly for excessive absenteeism.

Hill explained at the hearing that he understood the sick leave policy to extend to all absences, including absences for personal reasons. He explained that on June 2, he overslept and he admitted that he did not report his absence. His work record reflects that nearly all Hill's absences were charged against his accumulated sick leave, and only two absences were recorded as "unexcused." At the time of his discharge, Hill had approximately twenty-five days paid sick leave remaining to him.

During April, 1978, Hill's section maintained a high rate of productivity. In May, however, and for a period of months thereafter, production dropped markedly throughout the mine. After the April high, working conditions for Hill's section—as well as for other sections—worsened. Hill testified that insufficient methane detection equipment was available to him, but that when he reported this fact to his supervisor, he was told to continue work or else the company would find someone who would.

On June 19, 1978, Hill filed a complaint with the Secretary of Labor, claiming that he had been discharged because of his concerns over safety conditions in the mine. At about the same time, he also filed a claim for unemployment compensation with the State of Ohio. On August 30, a hearing was held on his unemployment claim. During the course of that hearing, Hill testified that he was suffering from a hernia condition that rendered him unable to perform his duties in the mine. His claim was denied on the ground that he was discharged for just cause. At the hearing before this Court, Hill explained that he had based his prior testimony upon a 1977 medical diagnosis.

Hill met with an inspector from the Mine Safety and Health Administration approximately three times between the time his discrimination complaint was filed and the order of reinstatement was issued. However, he never informed the inspector of his claimed medical condition.

On September 12, 1978 defendant Broderick issued an ex parte order of temporary reinstatement upon the Secretary's certification that Hill's complaint "was not frivolously brought." The order required Hill's physical reinstatement in the mine at his former position as a section foreman. After learning of Hill's possible hernia condition, however, the Secretary agreed to accept economic reinstatement until such time as Hill's medical condition was determined. Until the issuance of this Court's temporary restraining order, Hill was paid as a section foreman, although he did not work.

The results of one medical examination indicate that Hill does not suffer from a hernia condition and is in fact physically able to perform the duties of a section foreman. As of the time of the hearing before this Court, the parties were still awaiting the results of a second medical opinion.

Henry Lester, the general superintendent of plaintiff's Meigs Division, testified that physical reinstatement of Hill in the mine would have a negative impact upon the operation of the mine. In the event that Hill does suffer from a physical disability, his inability to properly perform his duties would pose a safety hazard in the mine. On the other hand, if Hill has no such disability, then his past absences establish his unreliability as an employee serving in a critical position. Lester further testified that Hill's reinstatement, whether physical or merely economic, serves to lower the morale of the other foremen working at Meigs Mine No. 2.

Upon his discharge, Hill received approximately $3,000.00 in severance and retirement pay from the plaintiff. Hill has been unable to find other employment, and his family has qualified for food stamps. From September 12 until the issuance of this Court's temporary restraining order, Hill received regular bi-monthly pay checks from the plaintiff amounting to approximately $1,300.00.

Discussion

The Federal Coal Mine Health and Safety Act of 1969 provided coal miners with certain rights in regard to safety and health in their working place. These rights were guaranteed by granting to miners discharged as a result of engaging in protected activities the right to be reinstated, with back pay, at the conclusion of an administrative process. Under the 1977 Act, these rights are expanded to provide inter alia, the temporary reinstatement of the miner pending administrative proceedings.

Under 30 U.S.C. § 815(c)(2), a miner who believes that he has been discharged from employment as a result of engaging in safety related activities in the mine may file a discrimination complaint with the Secretary of Labor. The Secretary may thereupon investigate the complaint and, if the Secretary finds that the complaint is "not frivolously brought," he may then apply to the Commission for an immediate order requiring the employer to reinstate the aggrieved miner pending a final order on the complaint. If the Secretary determines¹ that the miner has been discriminated against in violation of the Act, he must file a complaint with the Mine Safety and Health Commission and propose an order "granting appropriate relief." After notice to the alleged violator and opportunity for a hearing, the Commission "shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate relief." Any person adversely affected or aggrieved by an order of the Commission may obtain review of the order in the United States Court of Appeals for the circuit in which the violation is alleged to have occurred, or in the Court of Appeals for the District of Columbia Circuit. Section 816.

The interim procedural rules of the Commission provide for discretionary review of any Commission order upon certain specified grounds. 29 C.F.R. §§ 2700.51, 2700.58. If the petition for review is denied, the Administrative Law Judge's decision "shall become the final decision of the Commission unless the Commission orders review on its own motion under § 2700.59." 29 C.F.R. § 2700.58(i). Moreover, a Commission order granting the petition for discretionary review "shall automatically stay the effect of the Judge's decision." 29 C.F.R. § 2700.55.

The plaintiff in this action seeks not to review the merits of defendant Hill's discrimination complaint, but rather challenges the order of temporary reinstatement on both statutory and constitutional grounds. The plaintiff claims that the governmental defendants are without jurisdiction to consider Hill's discrimination claim because Hill is not a "miner" within the meaning of 30 U.S.C. § 815(c); that the failure to provide plaintiff a hearing prior to the issuance of the reinstatement order denied it due process...