ON PETITION FOR REVIEW OF AN ORDER OF PETITION FOR REVIEW FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION FMSHRC Nos. PITT 78-458, PITT 79-35 and PITT 79-36
Before Adams, Hunter and Sloviter, Circuit Judges.
Consolidation Coal Company ("Consol") petitions for relief from a final order of the Federal Mine Safety and Health Commission ("Commission") directing the reinstatement of David Pasula with backpay. This court has jurisdiction pursuant to section 106 of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. § 816(a) (Supp. III 1979). Pasula walked off the job while operating a continuous miner machine at one of Consol's coal mines. He alleges that he did so in a good faith belief that there was a danger to his health and safety. Pasula was dismissed. He filed grievances challenging his dismissal for cause and alleging that he had been dismissed for exercising his safety rights. An arbitrator denied Pasula's grievances, and the Arbitration Review Board affirmed. The Secretary of Labor then filed complaints on behalf of Pasula and several other miners employed by Consol alleging unlawful discrimination by the company on account of the Pasula incident. One complaint was filed on behalf of William Kaloz, Ralph Palmer, James Colbert and Bryan Plute which alleges that they were discriminatorily laid off when they were sent home prior to the normal termination of their shifts of work on May 31 and June 1, 1978. Another complaint was filed on behalf of Lawrence Carden which alleges that he was discriminatorily laid off when he was sent home prior to the normal termination of the midnight shift on June 1, 1978.
Following a hearing, an administrative law judge ("ALJ") of the Federal Mine Safety and Health Review Commission held that Consol had unlawfully discriminated against Pasula by discharging him for complaining about a mine safety and health violation and that Consol's action was thereby in violation of section 105(c)(1) of the Mine Act. Accordingly, the ALJ ordered reinstatement and appropriate compensation. The Commission affirmed the ALJ's decision on the ground that Pasula was properly exercising his right to walk off the job, given to him by the Mine Act.
While Pasula may have had a right to walk off the job pursuant to section 105(c)(1) of the Mine Act, because of a good faith belief that there was a danger to his health and safety, he went further and shut down the continuous miner machine so that no one else on his shift could work. Pasula did not have a right to close down the continuous miner machine in such a manner. His dismissal, which the record shows was premised not on his walking off the job but on his closing down of the continuous miner machine, was thus not in violation of the Mine Act and the Commission's decision is therefore reversed.
David Pasula was employed by Consol as an operator of a continuous miner machine.*fn1 At the start of the midnight shift on June 1, 1978, Pasula reported to work at Consol's Montour 10 underground coal mine. Upon arrival at the 1 Northeast section, Pasula checked his continuous miner machine prior to beginning the first cut. Upon starting the machine he noticed that its pump motor was unusually noisy. The machine had been damaged previously in a roof fall. In order to repair the miner, Consol's mechanics had replaced several gears. The excess noise was being caused by the failure of some newly replaced gears to mesh smoothly with the old gears. After operating the machine for approximately an hour and a half, Pasula stopped the machine and complained that the noise was giving him a headache, hurting his ears, and making him extremely nervous. Appendix at 79a, 86a, 94a-95a, 128a, 203a, 231a. Pasula immediately told Consol about the noise and about his problems by requesting the shift foreman, Earl Neal, to take a dosimeter reading to determine the noise level around the machine. In addition, Pasula informed the section foreman, Richard Humanic, that because the excessive noise was hurting his ears, he had turned off the machine while waiting for a dosimeter reading to be taken. Humanic directed Pasula to perform alternate work in another area of the mine, which Pasula proceeded to do.
Shortly thereafter, Earl Neal, James Bigley, Consol's assistant master mechanic, and John Cushey, the union's designated safety committeeman, arrived at the machine. They listened to the motor of the machine while it idled for a period of three to five minutes. Appendix at 80a, 211a. The machine's three other motors were not operating, nor was the machine cutting or loading coal. The safety committeeman took no noise level reading but, after listening to the machine for a few minutes, agreed with Consol (Neal and Bigley) that the machine was not so loud as to be unsafe. When Pasula returned, the shift foreman advised him of his opinion and directed Pasula back to work.
At this point, Pasula became extremely upset.*fn2 He again expressed his concern about exposure to excessive noise, and refused to continue operating the machine until a noise reading was made. Pasula requested alternative work and volunteered to perform the dosimeter reading himself. He also requested that the Company call a federal mine inspector to monitor the noise. The shift foreman, Neal, refused Pasula's requests and also denied him use of the mine telephone to call an inspector. Consol management once more asked Pasula to return to work and operate the machine. Pasula refused, and again demanded that a noise level reading be taken.
It was at this impasse that Consol management personnel (Neal) attempted to turn to Pasula's helper, John Fischer, with whom Pasula alternated in making cuts, to ask him to operate the machine. However, before Fischer had any chance to respond Pasula slapped the machine, cursed, and declared "nobody's going to operate it."*fn3 Appendix at 83a-84a, 17aa-173a, 204a-205a, 228a-229a. Pasula acknowledged on the record that he intended to include Fischer in his directive that no one was going to run the machine and that Fischer declined to operate the continuous miner machine only after Pasula had made this statement. After this incident, Neal then took Pasula and Fischer out of the mine and told Humanic, the section foreman, to bring the other members of the crew out as well. Because no one else in the crew besides Fischer and Pasula was qualified to run the continuous miner machine, no coal was produced that shift after Pasula shut the machine down.
On the day of June 1, the superintendent investigated the incident. The investigation resulted in Pasula being given a letter on the morning of June 2 advising him that he was being suspended with intent to discharge. The letter stated in pertinent part:
Management has concluded that your insubordination (refusal to perform assigned duties), interference with management of the mines and causing an unnecessary interruption in production and your past disciplinary record cannot be tolerated....
Appendix at 327a. Pursuant to the National Bituminous Coal Wage Agreement of 1978 ("the Wage Agreement")*fn4, a hearing-was held on June 5, 1978, and Pasula received a formal letter advising him of his discharge after the hearing.
This action involves three separate complaints filed by the Secretary of Labor under section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(1) (Supp. III 1979) which provides in part:
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...."
The Secretary's complaints allege that Consol violated section 105(c)(1) by laying off several miners and by discriminatorily discharging David Pasula following the described incident on the midnight shift of June 1, 1978. Resolution of Pasula's claim dictates the outcome of the additional claims.
Upon his dismissal, Pasula filed two grievances pursuant to the Wage Agreement. Both grievances were submitted to arbitration and a hearing was held on June 19, 1978 before Arbitrator David L. Beckman. At the conclusion of the hearing, Arbitrator Beckman issued an oral decision denying both grievances. He issued his written decision on June 29, 1978.*fn5 In deciding whether Pasula was justified in walking off the job in this case, Arbitrator Beckman considered the provisions of Article III, Section (i) of the Wage Agreement and judged Pasula's behavior in this case against the higher standard for finding "just cause" set forth under the collective bargaining agreement. That standard, as stated in Article III, Section (i)(1), provides:
No employee will be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyond the normal hazards inherent in the operation which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.
(Emphasis added.) The Arbitrator concluded that although the evidence supported a finding that there was an abnormal noise in the continuous miner machine, it failed to support a conclusion that the noise was immediately dangerous, nor in his opinion did it support a conclusion that the noise could reasonably be expected to cause death or serious physical harm before abatement. Furthermore, the Arbitrator held that Pasula "had no right under the circumstances to insist that the machine cease production." Appendix at 343a-344a. Thus, he held that Pasula "did not act in good faith" and that "the Company was not arbitrary, capricious or unreasonable in concluding that discharge was the appropriate disciplinary action." Appendix at 343a-344a.
The Federal Mine Safety and Health Commission subsequently issued its complaints, which were consolidated for a hearing before an ALJ. On March 5, 1979, the ALJ issued his recommendation and found that Consol had discriminated against Pasula by firing him because he complained about the safety and health hazard. The ALJ concluded:
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.
Appendix at 35a. The ALJ directed that Pasula be reinstated with backpay.
On April 4, 1979, Consol filed a petition for discretionary review with the Commission. The Commission affirmed the ALJ's findings, but issued its order on a different basis than that relied upon by the ALJ. The Commission found that Pasula had a right to walk off the job and that terminating him because of his exercise of this right was in violation of the statute. Appendix at 56a. Consol appeals pursuant to section 106 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 816(a) (Supp. III 1979) from the Commission's decision.
The Commission upheld the ALJ's decision on the ground that Pasula had a "right to walk off the job" protected by section 105(c)(1) of the 1977 Mine Act. Although the Commission acknowledges that such a right is not explicitly encompassed by the plain language of the statute, the Commission cites legislative history which it claims indicates that such a right was assumed implicitly in the drafting of the statute. The Commission noted:
We must look to the entire statute, being mindful that the 1977 Mine Act is remedial legislation, and is therefore to be liberally construed.... In determining whether section 105(c)(1) protects Pasula's refusal to work, we consider it important that the 1977 Mine Act was drafted to encourage miners to assist in and participate in its enforcement.... The successful enforcement of the 1977 Mine Act is therefore particularly dependent upon the voluntary efforts of miners to notify either MSHA officials or the operator of conditions or practices that require correction. The right to do so would be hollow indeed, however, if before the regular statutory enforcement mechanisms could at least be brought to bear, the condition complained of caused the very injury that the Act was intended to prevent. A holding that miners have some right to refuse work under the 1977 Mine Act therefore appears necessary to fully effectuate the congressional purpose.
Appendix at 59a-60a. However, because we believe that the record indicates that Pasula was discharged for engaging in the unprotected activity of shutting down the continuous miner machine, and not for exercising his asserted protected right to walk off the job, we find it unnecessary to define the perimeters of that right under the Mine Act.*fn6 A fair reading of the record indicates that the "real" reason that Pasula was fired was for his shutting ...