CCASE:

SOL (MSHA) V. CONSOLIDATION COAL

DDATE:

19790305

TTEXT:
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 Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)

 Office of Administrative Law Judges

SECRETARY OF LABOR, Applications for Review of

 MINE SAFETY AND HEALTH Discrimination

 ADMINISTRATION (MSHA)

 ON BEHALF OF: Docket Nos. PITT 78-458

 DAVID PASULA, WILLIAM KALOZ, PITT 79-36

 RALPH PALMER, JAMES COLBERT, PITT 79-35

 BRYAN PLUTE, LAWRENCE CARDEN,

 COMPLAINANTS Montour No. 10 Mine

 v.

CONSOLIDATION COAL COMPANY,

 RESPONDENT

 DECISION

Appearances: Eddie Jenkins, Esq., Robert Cohen, Esq., Office of

 the Solicitor, Department of Labor, for Complainants;

 Kenneth J. Yablonski, Esq., United Mine Workers of

 America, for Complainants;

 Anthony J. Polito, Esq., Rose, Schmidt, Dixon, Hasley,

 Whyte & Hardesty, Pittsburgh, Pennsylvania, for

 Respondent;

 Karl Skrypak, Esq., Consolidation Coal Company,

 Pittsburgh, Pennsylvania, for Respondent.

Before: Administrative Law Judge Charles C. Moore, Jr.

 These consolidated actions were brought by MSHA on behalf of

David Pasula and those members of his working crew that were

idled on two separate occasions. David Pasula alleges

discrimination in that he was fired and the other workers alleged

discrimination in that they were deprived of two half-shifts of

work and payment because of a complaint of a safety violation.

Pasula, the continuous miner operator, had been previously

reinstated pursuant to an order issued by Acting Chief

Administrative Law Judge Broderick, but he was not actually

reinstated as a continuous miner operator. He was paid at the

rate appropriate for a continuous miner operator, however.
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 On May 31, 1978, David Pasula was on a crew working the 12

midnight to 8 a.m. shift. When he got to his continuous miner he

found the methane monitor on the machine inoperative and so

informed a mechanic and his section foreman. The mechanic decided

that an entire module was necessary, and the section foreman

telephoned the shift foreman to see if such a module was

available.

 The shift foreman inquired and learned that the part which

the mechanic said was necessary would not be available until the

next morning. The exact sequence of events following is not

clear, but, the shift foreman was at the face area and did

request that David Pasula operate the continuous miner without a

methane monitor for a period of time. David Pasula may have been

willing to operate the machine for a time, but not as long a time

as the shift foreman desired (until 8 a.m.). There was testimony

that some Federal inspectors do not consider it a violation to

operate a continuous miner without a methane monitor for short

periods of time as long as the required 20-minute methane checks

are made. Regardless of the exact communications, Mr. Pasula did

not operate the continuous miner as requested and as a result,

his crew could not produce coal in the the 1 West section. The

assistant master mechanic, who might have been able to repair the

machine (I say this because the next day a mechanic did repair

the machine in about half an hour without replacing the module),

was in the 1 Northeast section working on a continuous miner

which had been partly buried by a roof fall.

 Mr. Pasula and the other complainants in his crew were sent

home and paid for 4 hours even though they did not work quite

that long. It is the contention of these crew members that there

was other work to do in the mine which they could have been

assigned to do, and that they were sent home after 4 hours only

because Mr. Pasula refused to operate the continuous miner

without a methane monitor. They thus contend that they were

deprived of 4 hours of pay on May 31, 1978.

 Subsequent to the crew's midnight departure from the 1 West

section, the chief mechanic and other mechanics fixed the other

continuous miner in 1 Northeast section by replacing a number of

the gears and then extracting the miner from beneath the rock

fall area. When the Pasula crew arrived for their next shift on

June 1, 1978, starting at midnight, they were assigned to the 1

Northeast section where the continuous miner had been under a

roof fall during their previous shift. During the repair of that

continuous miner, new gears had been mixed with old gears and as

a result, the machine was extra noisy because the gears did not

mesh properly. It was the testimony of all of the knowledgeable

people that addressed the subject that gear meshing noises of

this sort do reduce in volume as the machine is operated. Repairs

on the miner had been completed on the shift previous to Mr.

Pasula's and the machine was used in mining for several hours

during that previous shift.
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The machine was so noisy, however, that the operator (who had a

hearing loss) shut it off when the shuttle cars were not in

position to load coal, whereas his usual procedure is to let the

machine idle while the shuttle cars are not in the area.

 Pasula noted the loudness of the machine but nevertheless,

operated it for about an hour and a half before he decided he had

had enough. He stated that he had a headache, that his ears hurt

and he was nervous and that when he attempted to complain to the

section foreman, he found the section foreman asleep in the

dinner hole. This was later denied by the section foreman. I find

it unnecessary to determine whether the section foreman was

asleep or not because it is clear that Mr. Pasula thought he was

or he would not have phoned the shift foreman directly instead of

talking first to the section foreman. No one has suggested an

ulterior motive on Mr. Pasula's part regarding this direct

contact with the shift foreman, and no one has suggested a reason

why he should invent the story that the section foreman was

asleep.

 Mr. Pasula told the shift foreman about the noise the

machine was making, told him about his headache, nervousness and

hurting ears and requested that a noise level test be made on the

machine before he operated it further. After that conversation,

the shift foreman telephoned the mine manager to inquire as to

whether they were required to make a noise level test in the

circumstances, and he was informed that the law did not require

such a test.

 Subsequently, the assistant master mechanic, the shift

foreman, a member of the safety committee, and the section

foreman met at an intersection near the face where the continuous

miner was located. At the time, Mr. Pasula and his helper were

doing some other work that had been assigned and were not present

when one of the mechanics started the machine so that the others

could listen to it run. Even though he had not heard the machine

running at the face with all motors running, the safety

committeeman had already agreed with management that the machine

was not too loud to operate before Mr. Pasula and his helper

returned to the scene. When Mr. Pasula heard this, he became very

upset. Harsh words were spoken and Mr. Pasula continued to demand

that a noise level reading be taken on the machine. Management

refused to comply. Mr. Pasula then said he would not operate the

machine and that nobody was going to operate it.

 There is some question as to whether anybody ever asked the

helper to run the machine, but it does not matter because he

would not have run it in any event. He so testified and it is a

general longstanding mine custom that when one miner will not

operate a piece of equipment, another one will not. The section

was then shut down and the miners on that particular crew were

taken from the mine. All, except Mr. Pasula, were paid for 4

hours of work and he was paid for 3-1/2 hours, the difference

being that he had refused to run the machine and was therefore

not paid for the last half hour. At one
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point during the discussions, Mr. Pasula said he wanted to call a

Federal inspector to take a noise level reading. He was told he

could not use any phone on mine property for that purpose. Before

leaving the mine, Mr. Pasula did ask for other work, but was told

that with the miner down and, with no production, there would not

be any other work.

 Mr. Pasula was subsequently fired and he filed a grievance

under the union contract. This resulted in an arbitration

proceeding before David L. Beckman, Esq., and his written

decision in the matter was received in evidence as Consol Exhibit

No. 10. A copy of that decision was also attached as Exhibit A to

Respondent's answer to the complaint.

 As to the weight that should be given to the decision of the

arbitrator by me, the cases cited in the briefs indicate that it

is a matter of discretion. In exercising that discretion,

according to the cases, I should consider the qualifications of

the arbitrator and the type of hearing that was held. From the

information submitted during the trial it appears that the

arbitrator was a well-qualified attorney and that the testimony

before him was under oath.

 Mr. Beckman, of course, had to rely on the evidence

presented to him and I have no idea as to what that evidence was.

I have noted some findings in his opinion that are inconsistent

with the evidence presented to me and with my knowledge of the

regulations involved. He may have been told otherwise, but the

statement on page 13 of the opinion to the effect that an

inspector has no authority to shut down a machine because of a

noise violation is incorrect. While several of the witnesses

indicated their understanding that noise violations would not

result in closure, there is no question but that if a noise

violation, like any other violation, is unabated, and if the

inspector does not consider a further extension of time

justified, a withdrawal order will be issued. And such orders

have been issued. The implication that noise violations are not

serious enough to close a mine is not correct. Also, it appears

that Mr. Beckman's reliance on the inspector who tested the noise

level of the machine may have been misplaced. The machine had

been running for approximately 2 hours after Mr. Pasula and his

crew left the mine by the time the noise level test was made by

the inspector. The purpose of allowing the machine to idle during

that time was to let the gears mesh and reduce the noise level on

the machine. Assuming that the idling of the machine had the

effect that it was designed to have, i.e., reduce the noise

level, and despite the inspector's possible testimony before Mr.

Beckman and his statement in writing which he presented to

Respondent, the machine was still too noisy for anyone to legally

operate for an 8-hour shift.

 The machine in question was producing 93 decibels with only

the pump motor running and was producing 103 decibels with the

pump motor
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and the conveyor running and while mining coal. The limit for an

8-hour shift is 90 decibels. It would have, therefore, been

illegal to require an operator to sit in this machine and idle

the engine for an 8-hour shift. While evidence was introduced as

to how much time, during an 8-hour shift, a mining machine is

actually cutting coal, tramming, idling, or off, such evidence

was inconclusive. This is especially true since Consolidation

Coal, the proponent of the study, was of the erroneous opinion

that it was standard practice to shut the machine off while

awaiting a shuttle car.

 I cannot imagine what prompted the inspector to imply, if

not state, that a machine producing 93 decibels could not be

involved in a violation of the standard. As previously stated, it

certainly would be a violation if one miner were to idle the

machine for 8 hours. It would clearly be a violation if any miner

operated the machine cutting coal at 103 decibels for an hour and

a half because that would be a violation even if the machine only

produced 102 decibels.(FOOTNOTE 1) The inspector did not appear before

me to explain his evaluation of the machine, and in the absence

of any such explanation, I will not accept his statement that the

machine was in compliance with the noise standard, because that

compliance obviously depends on how long a particular miner is

exposed to either the 102 or 93 decibel levels. I therefore agree

with the contention in MSHA's reply brief that Consol Exhibit No.

12 does not show that the continuous miner was in compliance with

the noise standard.

 Arbitrator Beckman's decision, despite differences pointed

out above, generally agrees with the facts as I have found them

here. His decision was based on the wording of the union

contract, however, and not on the language of section 105(c) of

the Federal Mine Safety and Health Act of 1977. Under the union

contract, if a miner thinks that his health or safety is in

jeopardy (the wording is similar to the description of an

imminent danger under the Federal law) he is entitled to have a

member of the safety committee examine the situation. If

management and the safety committee member agree that there is no

hazard involved, then the miner is supposed to go back to work.

At least that is the way the contract was interpreted by Mr.

Beckman and according to Consol's reply brief filed on February

2, 1979, that decision has been affirmed. The Federal provision

states "No person shall discharge or in any manner discriminate

against * * * a miner * * * because such miner * * * has filed or

made a complaint under or related to this Act, including a

complaint notifying the operator or the operator's agent * * * of

an alleged danger or safety or health violation * * *." (Emphasis

added.)

 Arbitrator Beckman concludes that David Pasula was fired

because of his refusal to operate a continuous miner and because

of his past
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record. That past record is referred to on page 14 of Mr.

Beckman's decision and includes four items. The first was for

insubordination on December 22, 1976, which resulted in a verbal

warning. Details are not contained in the file. The second on

January 27, 1977, concerned a confrontation with a mine pay clerk

and a written warning was issued to Mr. Pasula. The confrontation

involved work that Mr. Pasula had done and not been paid for. I

think the pay clerk should have received the written warning. The

third item on March 22, 1977, concerned a charge of altering a

medical form and there was an arbitrator's decision which was

introduced in evidence as Consol Exhibit No. 3. There are three

lines obliterated on page 3 of the exhibit and two lines

obliterated on page 4. So, I must assume that whatever was said

in these five lines, it was something Consol did not care to

include in the record. Whatever that material was, I do not see

how it could rehabilitate that decision in view of the evidence

that was presented at the hearing in the instant case. The

evidence that was presented to me indicated that Mr. Pasula had

done nothing wrong, but I have no idea what evidence was

presented before Arbitrator Pollock. In any event, the arbitrator

was presented with the question of whether or not Mr. Pasula

altered medical forms. Instead of deciding that question either

on the evidence or if necessary by assigning the burden of proof,

the arbitrator proceeded to strike a balance somewhere in

between. He found Mr. Pasula somewhat guilty, but not altogether

guilty and therefore modified the penalty imposed by the company.

Consol Exhibit No. 3 does not indicate that Mr. Pasula was wrong

in connection with the medical records event. The doctor who

failed to fill out the proper forms may have deserved a

suspension, but not Mr. Pasula. As to the fourth charge mentioned

by Mr. Beckman, interference with management, which resulted in a

3-day suspension for Mr. Pasula, the evidence indicates that on

that occasion there was a labor dispute and that Mr. Pasula and

his fellow workers complied with the directions of the safety

committeeman. But, on June 1, 1978, when Mr. Pasula chose to

ignore the advice of the safety committeeman, he was fired. I

find the entire record of Mr. Pasula's so-called past misconduct,

contrived and unconvincing. I therefore, completely disagree with

Mr. Beckman's decision in this regard.

 It is the position of MSHA and the union, that Consolidation

Coal Company's actions have shown that whenever a section is shut

down because of a safety complaint by a miner, then the miners

will be sent home for the second half of the shift, but if it is

for some other reason, the miners will be given other work for

the remainder of the shift. I find that no such pattern has been

established. If, on May 31, 1978, the section had been shut down

because the continuous miner was inoperative due to a faulty

methane monitor, the fact that the miners were sent home, rather

than being given other work to do, would not establish

discrimination. Certainly the fact that they were paid for 4

hours of work, but not required to actually stay in the mine for

that 4-hour period would indicate that there was no

vindictiveness on the part of management.
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 But, the section was not shut down because of the faulty methane

monitor. It was shut down because of David Pasula's refusal to

run the machine without that necessary piece of equipment.

Despite his equivocation, evasiveness and nonresponsiveness, I

find that Shift Foreman Neal did try to get Mr. Pasula to run the

machine for the remainder of the shift without an operable

methane monitor. On Mr. Pasula's refusal, the section was closed

and the miners were sent home. Several mechanics, including the

assistant master mechanic, were working on a continuous miner

which had been buried in another section, and I have no doubt

that they, or at least the assistant master mechanic could have

fixed the methane monitor in a short period of time. The fact

that there were other pieces of equipment in the section with

discrepancies is not important because if it had been important,

Mr. Neal would not have asked Mr. Pasula to operate the machine

without the methane monitor. Mr. Bigley, the assistant master

mechanic, said he could not leave the other section with the

mechanics working on the partially buried continuous mining

machine, because of the danger in that other section. He was

somewhat over-dramatic as though he thought that his presence

would somehow keep the roof from falling on these other

mechanics, but if he really thought they were in danger, and if

management had been interested in keeping Mr. Pasula's section

open, all of the mechanics could have come over to the 1 West

section, fixed the methane monitor, repaired whatever

discrepancies existed, and then gone back to their half-buried

continuous miner. The fact that management chose not to pursue

this course of action is a further factor indicating that they

were punishing Mr. Pasula and his crew for his refusal to operate

the continuous miner illegally for an 8-hour period.

 I find that all miners working in the 1 West section on May

31, 1978, in Mr. Pasula's crew who were idled and unpaid for half

of that shift and who are also Complainants in these proceedings,

are entitled to be paid for the second half of the shift.

 As to the incident on June 1, 1978, which resulted in the

firing of Mr. Pasula, I have already indicated what I think of

Mr. Pasula's past record of disciplinary actions. Inasmuch as the

abusive language used by Mr. Pasula was directed towards Mr.

Cushey, a fellow miner, and not towards supervisory personnel,

that language could not reasonably be a part of the justification

for his discharge. This leaves only Mr. Pasula's insubordination

in refusing to operate the continuous miner as a possible

justification for the action taken by the company. The company

argues that Mr. Pasula's refusal to allow anyone else to operate

the continuous miner was a dispositive factor. It was apparently

when Mr. Cushey, the safety committeemen, suggested that Mr.

Fisher operate the machine that Mr. Pasula said that the machine

was down and nobody was going to operate it. But as stated

earlier, according to mine custom, Mr. Fisher would not have

operated
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the machine in any event. Also, the company seems to be taking

inconsistent positions regarding Mr. Pasula's authority. On the

one hand, the company says he shut down the machine and refused

to allow anybody to operate it by an oral statement, and on the

other hand, the company is saying that he had no authority to do

so. There was no evidence that any foreman told the miners that

Mr. Pasula lacked authority to shut down the machine. On the

contrary, their actions seemed to concede that he did have that

authority.

 It must be remembered, that when Mr. Pasula refused to run

the continuous miner, it was not a flat refusal. He refused to

run it until or unless a noise level test was made, and he

demanded that such a test be made. He even informed his superiors

that he knew how to make the test himself if they would provide

the apparatus. And while I have indicated earlier that the

machine could have well been producing enough noise to justify a

notice of violation, it does not really matter. The Act protects

a miner who is disciplined because he alleges a violation,

whether a violation exists or not. There is no doubt in my mind

that Mr. Pasula was discharged because he was complaining about

the noisy machine and demanding that a noise level test be made.

Management's evidence indicated to me that it does not take noise

violations too seriously. The refusal of management to allow Mr.

Pasula to use a phone on mine property to call in a Federal

inspector for the purpose of taking a noise level test adds

nothing to management's attempt to show a good faith discharge of

Mr. Pasula.

 I think management had had enough of Mr. Pasula and his

health or safety complaints and decided to get rid of him. The

other miners on the crew just happen to be caught up in the same

situation, but the fact remains that they were punished i.e.

discriminated against, because of Mr. Pasula's complaint. They

and Mr. Pasula are thus entitled to pay for a full shift on June

1, 1978. This ruling of course applies only to miners who are

complainants in these proceedings. Mr. Pasula is entitled to

remain in his position as a continuous miner operator and is

entitled to actually operate the equipment rather than merely

being paid as a continuous miner operator.

 ORDER

 It is therefore ordered that Consolidation Coal Company pay

to the complainants herein the difference between what they were

actually paid for work on May 31, 1978, and June 1, 1978, and the

appropriate pay for working two entire shifts. It is further

ordered that Mr. Pasula be actually reinstated in his former job

as a continuous miner operator. This order is to be complied with

within 30 days and the
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previously issued temporary reinstatement order will remain in

effect until the instant order becomes a final and enforceable

order of the Federal Mine Safety and Health Review Commission.

 Charles C. Moore, Jr.

 Administrative Law Judge

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FOOTNOTES START HERE

~FOOTNOTE_ONE

 1. See 30 CFR 70.510.