Franklin PHILLIPS, Petitioner, v. INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent, Bituminous Coal Operators’ Association and Kentucky Carbon Corporation, Intervenors.
No. 73-1260.
United States Court of Appeals, District of Columbia Circuit.
June 20, 1974.
Rehearing Denied Aug. 26, 1974.
In conclusion, we note that it is now apparent that the Company has engaged in activities violating our decree for nearly five years. The Company will now proceed immediately to fulfill its duty to bargain collectively with the Union. We will accept no excuse for further intransigence or hesitation in following our orders.
ORDER
After briefing and oral argument by the parties on the petition of the NLRB for adjudication of the Farmers Co-operative Gin Association in civil and criminal contempt of this court and for additional relief, it is
Hereby ordered by the court that the Farmers Co-operative Gin Association
- be adjudged in civil contempt of this court for the reasons set forth in the accompanying opinion;
- be required to pay reasonable attorney fees and costs of the NLRB in investigating, preparing, and prosecuting this action, the amount to be determined by the court on proof submitted by the NLRB no later than two months after the date of this order;
- be directed forthwith to bargain collectively and comply fully with our decree of 12 March 1968 and this decree;
- be required to make a return to this court within thirty days after the date of this order, showing that the Company has brought itself into compliance with the decree of 12 March 1968 and this order and opinion. Upon failure to make such a showing, this court will impose a prospective compliance fine of $250 per day for each violation and each day of continued noncompliance, and such other remedies as the court shall then find necessary.
The court declines to initiate criminal contempt proceedings at the present time.
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
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 Judge:
In this case the court is called upon to determine whether the discharge of coal miner Phillips, petitioner, was violative of the
I. THE DISCHARGE OF PETITIONER PHILLIPS
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
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:
[T]he 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, “No, I‘ll go on my own. You‘re not taking me anywhere. I‘ll go on my own.” 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
Phillips then sought aid from the National Labor Relations Board in the form of a complaint against Kencar.
I asked Franklin Phillips, I saw the water was good water and I asked Franklin Phillips to get on his buggy and he told me he wasn‘t going to haul no coal.
Q: Did he give a reason?
A: Not the first time, I don‘t think he did. And I asked him again. I told him, “Get on your buggy and haul coal,” and he didn‘t give me a reason then. So I asked him a third time and he said he wasn‘t going to haul no coal and that‘s when I fired him for refusing.
Q: Did you determine at that time whether these men had poor water pressure before they took the sprays off?
A: No. I observed the water earlier in the shift and it was good water.
Add. at 17a-18a.
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.
Our interpretation of the relationship between arbitration and the Mine Safety Act is quite similar to the Supreme Court‘s analysis in an employment discrimination case, Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, (1974). There Justice Powell, writing for a unanimous Court, held that an employee‘s right to a trial de novo under
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 Judge. The Board recognized that Phillips had lodged complaints with the foreman and the Mine Safety Committee prior to his discharge. However, it also noted that Phillips did not seek any immediate redress upon being fired by the foreman.
The Board found no substantial evidence to support the Administrative Law Judge‘s findings of a discriminatory discharge.21 Instead, the Board found that the reason for the discharge was the “refusal of Phillips to obey the direct order of the foreman to haul coal.”22
Furthermore, the Board found the Administrative Law Judge‘s construction of the scope of
II. THE PROPER SCOPE OF THE MINE SAFETY ACT
A. Cause of Discharge Sufficient to Invoke the Act
The resolution of the issue here depends on the coverage of and the procedure under the Safety Act. Obviously the Board and the Administrative Law Judge differed in their interpretations. Specifically, we must determine whether a miner brings himself under the coverage of the Act by reporting safety violations to his foreman and Mine Safety Committee, or whether he must formally notify the Secretary of Interior or his authorized representative before he is protected. We believe that the answer is clear: given the mine‘s procedures regarding safety complaints, the coverage of the Act begins when the miner notifies his foreman and/or safety committeeman of possible safety violations.
It is important to recognize at the outset that this case arises out of the enforcement of the Mine Safety Act, not an ordinary labor dispute. While a simple employee discharge may be merely a labor dispute, when allegations of safety violations are not frivolous the court must carefully review the case to determine whether the Mine Safety Act has been obeyed. Our review indicates that the Act is involved here, and indeed we conclude that Phillips has presented a valid cause of action.
Safety costs money. The temptation to minimize compliance with safety regulations and thus shave costs is always present.24 The miners are both the most interested in health and safety protection, and in the best position to observe the compliance or noncompliance with safety laws. Sporadic federal inspections can never be frequent or thorough enough to insure compliance. Miners who insist on health and safety rules being followed, even at the cost of slowing down production, are not likely to be popular with mine foreman or mine top management. Only if the miners are given a realistically effective channel of communication re health and safety, and protection from reprisal after making complaints, can the Mine Safety Act be effectively enforced.
There is no question but that Phillips felt there was a danger due to excessive coal dust on 28 April 1971. The previous actions of the federal inspectors and the Mine Safety Committee confirm that Phillips was not overly or unreasonably worried about the dangerous conditions in the mine.25 When Phillips felt that the dust conditions were harmful, he did what he could to reduce the risk—he began to clean the water sprays. It was at this point that the foreman told him to start work, as opposed to continuing to fix the safety equipment. After rejecting Phillips’ contention that it was necessary to reduce the dust, the foreman told him either to start work or be fired. Thus Phillips was given the choice of either working in what he felt was an unhealthy, unsafe area, or being discharged for not accepting the foreman‘s evaluation of the danger. His discharge on 28 April was the direct result of his disagreement with the foreman on the safety of the coal dust level.
We digress here to point out that the “substantial evidence” question is no question at all. Our dissenting colleague adequately describes the Administrative Law Judge‘s and Board‘s con-
The Mine Safety Act protects miners who are discharged as a result of their complaints concerning safety violations in mines.
- has notified the Secretary or his authorized representative of any alleged violation or danger,
- has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or
- has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.26
We believe that Phillips’ notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary (A) and the institution of proceedings (B), and consequently brings the protection of the Safety Act into play.
B. Procedure
In so holding, we do not adopt either extreme urged upon us. We do not think that merely because a discharge originates in a disagreement between a foreman and a miner that the Mine Safety Act is automatically brought into play. Nor do we adopt the other extreme, take the bare words of the statute with their most limited interpretation, and hold that before a miner‘s safety complaint is accorded the protection of the Safety Act the coal miner must have instituted a formal proceeding with the Secretary of Interior or his representative. Rather, we look to: the overall remedial purpose of the statute (discussed under C. infra); the practicalities of the situation in which government, management, and miner operate; and particularly to the procedure implementing the statute actually in effect at the Kencar mine. The existence of this procedure in itself was a practical recognition that the bare words of the Safety Act, unless implemented by some procedure at the mine to bridge the gap between “the Secretary or his representative” (presumably the Federal Bureau of Mines) and the coal miner himself (the object of the Act), would be completely ineffective in achieving mine safety.
In summary, the procedure at the Kencar mine for the processing of safety complaints was the following:
- miner notifies his foreman of the problem and tries to obtain corrective action;
- if the foreman disagrees, the miner has the right to call in the Mine Safety Committeeman to evaluate the complaint;
(a) if the Mine Safety Committeeman agrees with the miner and the foreman fails to correct the problem the Committeeman can bring the case to the entire Committee and they may order the mine section closed; - (b) if the Mine Safety Committeeman disagrees with the miner, the latter can request a Federal Mine Inspector be called in. Pending that determination, the miner is to be temporarily reassigned to another area.27
This finding of the Administrative Law Judge is not disputed, and could hardly be disputed, as it rests on testimony at the hearing of Kencar management that this procedure was in effect before and on the day Phillips was discharged.
The Administrative Law Judge further found:
It is conceded by Respondent that, pending a resolution of a safety or health complaint, a miner at the Kencar Mine had the right to refuse to work under conditions which he believed in good faith to be hazardous to his safety or health.28
Nothing in the Mine Safety Act or mine procedure suggests that the company has a right to fire a miner for refusing to work in a particular area of a mine when he fears a chronic, long-term threat to his health or safety there due to safety violations.29
The Administrative Law Judge further specifically found:
Pending a determination by the Federal Inspector, the miner was to be reassigned to other, temporary duties. No case experienced in this mine actually reached the stage of temporary reassignment pending a Federal inspection, but management acknowledged at the hearing that under its practices and the implementation of its bargaining agreement, such would be the rights of the miners regarding safety or health complaints.
7. It is evident that, although the above safety complaint rights were acknowledged by management at the hearing, they were not entirely understood by the miners themselves.30
It is clear beyond peradventure that Phillips was not required to accept the foreman‘s evaluation of danger; it is equally clear that he was discharged for not accepting the foreman‘s safety determination. We reject the Board‘s suggestion that Phillips was discharged only for a simple refusal to work. Rather, we conclude that the effective cause of Phillips’ discharge was his complaint about hazardous working conditions in the mine.
When the foreman told him he was fired, Phillips left the mine. He was undoubtedly unfamiliar with the elaborate appeal and review procedure; he assumed that the firing was final. In view of the discharge on improper grounds,31 we cannot hold Phillips to the
The above discussion of the procedures necessary to implement the Mine Safety Act makes clear our most fundamental disagreement with the decision rationale of the Board, espoused by our dissenting colleague here. The method of “institut[ing] any proceeding” or “notif[ying] the Secretary or his authorized representative” is not spelled out in the Act, certainly not in terms cognizable by a coal miner. The Kencar Mine management and union representatives sensibly recognized this, and put into ef-
trary, the foreman testified that [Phillips] had been a very good worker—as good as ‘any miner in the section.’ I find from the evidence as a whole that the above added charges had no bearing upon the foreman‘s decision to discharge.” Decision of Administrative Law Judge ¶ 26, in App. at 20-21.
fect a procedure to bridge the gap between the miner in the pit and the Federal Bureau of Mines, the Secretary‘s representative. That procedure had as its first step the miner notifying his foreman of the problem and trying to obtain corrective action. Phillips did precisely this in accordance with Kencar Mine‘s approved procedure to meet the standards of the Mine Safety Act. Phillips was fired for doing so.
To hold that Phillips was not protected against discharge because he took the first prescribed step under the Kencar procedure to invoke the Mine Safety Act, to hold that only a miner‘s discharge after he reaches the Bureau of Mines with his complaint is protected by the Safety Act, would nullify not only the protection against discharge but also the fundamental purpose of the Act to compel safety in the mines.32
We believe that the Mine Safety Act, to be effective, must be construed as we have here. If it is not, it will be easy for management to avoid the prohibitions of the Act. If every miner who complained of safety device failures could be placed in Phillips’ situation, the Act would be a hollow promise of protection; a foreman‘s determination of safety would become final.
C. Legislative History and Judicial Construction
Our view of the Mine Safety Act is supported by the legislative history. Senator Kennedy, in introducing his amendment which became
cept of the Safety Act‘s scope would be to put a premium on the company firing first, before the employee has a chance to institute a proceeding with the Secretary‘s representative. To hold that only a discharge after a formal proceeding has been instituted is protected, but that a discharge after the miner has taken the first step in the complaint procedure by complaining to his foreman is not protected, would be to invite all employers to gut the Safety Act by quick discharges of complaining employees. Yet this is where the Board‘s view, endorsed by the dissent here, would inexorably lead us.
the rationale for this amendment is clear. For safety‘s sake, we want to encourage the reporting of suspected violations of health and safety regulations. . . .
But miners will not speak up if they fear retaliation. This amendment should deter such retaliation, and, therefore, encourage miners to bring dangers and suspected violations to public attention.33
Senator Kennedy also remarked that
[i]t is especially important that miners not feel inhibited to point out health and safety violations because there is such a high degree of danger in the mines.34
Given this wide scope of protection intended, a liberal construction of the language of the Act is justified.35
The House Committee on Education and Labor in reporting on the Act also suggested a liberal construction:
Subsection (b) prohibits discrimination against miners for having exercised their rights under this Act or for having participated, in any way, in the enforcement of the Act. The subsection provides procedures for obtaining reinstatement and back pay for miners discharged by operators and other remedies for miners discriminated against.36
Furthermore, we note that the Third Circuit in considering a previous Mine Safety Act stressed a broad reading:
[I]n construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light
of the prime purpose of the legislation is to be employed. This statute is remedial, with a humane purpose in view and is therefore entitled to a liberal construction.37
The parallels between the Mine Safety Act and other protective labor acts are significant. The Safety Act provision which we here construe was introduced with the announced intention of giving to miners “the same protection against retaliation which we give employees under other Federal labor laws.”38 Specifically, the
The Supreme Court has construed the corresponding NLRA provision broadly: in NLRB v. Scrivener, dba AA Electric Company, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972), the Court held violative of the NLRA the discharge of an employee for his giving a sworn written statement to a NLRB field examiner who was investigating an unfair labor practice charge. Justice Blackmun, writing for the unanimous Court, was concerned that the employee should be protected in the investigative stages as well as after filing of formal charges or in giving formal testimony. Such protection is necessary “to prevent the Board‘s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.”40 Furthermore, Justice Blackmun stated that
the presence of the preceding words “to discharge or otherwise discriminate” reveals, we think, particularly by the word “otherwise,” an intent on the part of Congress to afford broad
In the Mine Safety Act the words “in any other way discriminate” may be similarly construed.
We believe our view of the scope of
So ordered.
ROBB, Circuit Judge, dissenting:
I dissent on two counts: (1) in my judgment the majority has misconstrued
I.
The petitioner Phillips was a shuttle car operator at a coal mine, his duty being to transport coal in his shuttle car from a mechanized loader at the face of the mine to a conveyor belt. The loader was equipped with water sprays to wet down the coal and reduce dust. While on duty Phillips refused to continue his work because in his opinion the water sprays on the loader were not working properly. The foreman disagreed with the petitioner‘s opinion and directed him
to resume work. When Phillips refused to obey the foreman discharged him.
Pursuant to the contract between the petitioner‘s Union, the United Mine Workers, and the company, the matter of the petitioner‘s discharge was submitted to binding arbitration. The grievance submitted by the Union on behalf of the petitioner alleged that he had been wrongfully discharged. After hearing testimony from both company and Union witnesses the umpire rendered his final and binding decision. He held, in pertinent part:
Under the Management of Mines clause of the contract the management of the mine, the direction of the working force, is vested exclusively in the operator. The only justifiable reason a miner would have to refuse to obey a direct order to continue to perform his normal duties, is that such an order would put him in danger of immediate personal injury or danger to his life. Such danger did not exist in this case.
The grievant in this case was not working continuously near the face of the coal where he complained of excessive dust. The only time he was there was when he was waiting to have his buggy loaded or his buggy was actually being loaded. The men who were working on the equipment at the face of the coal were there continuously during their shift. They continued on with their work and did not walk off the job. There is no showing in this case that the grievant was in any immediate danger of great physical harm or danger to his life by continuing to carry out his duties as the other employees of this section continued to do.
It has in all cases known to this umpire been held that failure to carry
out an order to perform duties assigned to a miner is a violation of the Management of Mines provision of the contract. If each miner can decide under what conditions he would work then the Management of Mine clause of the contract would have no meaning and management would have no control of the operation of the mines and the result would be chaos. * * * * * *
In this case the grievant admits that he refused to work and obey a direct order of management to perform his duties and there is no showing he was in immediate danger of serious injury or loss of life. As unpleasant as it is the umpire must find that the management had the right under such circumstances to discharge the employee.
Phillips then complained to the National Labor Relations Board that his discharge was discriminatory. On December 17, 1971 the Regional Director refused to issue a complaint against the company. The Regional Director wrote:
The investigation has disclosed that there were no employees, other than Franklin Phillips, who had complained to their supervisor about the dust conditions in the mine on the date in question. Furthermore, the then current collective bargaining agreement contained an implied no-strike clause provision in the clause which provided for arbitration disputes. Therefore, under these circumstances it was deemed appropriate that Phillips was obligated to arbitrate his grievance and could not legally go on strike, unless there were abnormal working conditions in the mine on the date in question. Moreover, it has been concluded that the instant factual situation does not satisfy the requirements of “abnormal working conditions” as defined by the Board in Red Wing Carriers, Inc., 130 NLRB 1208.
Phillips next instituted the proceeding which is now before us under
(b)(1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.
After a hearing the Trial Examiner (now called Administrative Law Judge) concluded that the company had violated
The Board of Mine Operations Appeals reversed the Hearing Examiner, holding that there was no substantial evidence in the record to justify the Examiner‘s conclusion. On the contrary, the Board found the preponderance of the evidence established that the reason for the discharge was
the refusal of Phillips to obey the direct order of the foreman to haul coal. Although the foreman‘s action may be looked upon as harsh or extreme, it is not within the province of the Judge or this Board to find that he had no authority to discharge any miner who disobeyed an order to work or otherwise acted in an unreasonable manner. We note that the umpire in the arbitration proceeding concluded, “As unpleasant as it is, the umpire must find that the management had the right under such circumstances to discharge
the employee” . . . (Ex. 4(c), p. 11). We are concerned here only with the question of whether the discharge was in violation of section 110(b)(1)(A) of the Act. The principal objective of that section is to preserve the integrity of the Act and not to provide a new forum for the litigation of management and labor grievances. [Emphasis supplied by the Board.]
II.
The majority concludes “that Phillips’ notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary (A) and the institution of proceedings . . . and consequently brings the protection of the Safety Act into play.” In other words the majority says that when Phillips complained to his foreman he “notified the Secretary or his authorized representative” of the alleged violation or danger, within the meaning of
In the first place it seems to me that the phrase “the Secretary or his authorized representative” on its face plainly does not mean a foreman or the mine employees serving on a safety committee. If Congress had intended the phrase to have such an inclusive meaning, so that any complaint by a miner concerning safety clothed him with the protection of
My conclusion is reinforced when
From these numerous references to “authorized representative of the Secretary” in the statute it seems plain to me that when Congress used those words in
My reading of the Act is confirmed by Senator Kennedy‘s comments on the floor of the Senate at the time he offered the amendment which ultimately became
In his remarks on the floor Senator Kennedy noted that his proposed amendment to
I am puzzled by the majority‘s suggestion that Phillips came within the protection of
III.
The majority concludes that the “bare words of the Safety Act . . . would be completely ineffective” unless “implemented by some procedure at the mine“. I think this argument fails when examined in the light of the true scope of
A miner who is concerned about conditions in the mine which he considers dangerous is protected by both his collective bargaining agreement and by
Although the majority, citing a finding by the Examiner, suggests that Phillips’ discharge did violate the collective bargaining agreement (Op. p. 780) this matter is not relevant to the issue before us. We are not reviewing the decision of the umpire. The only issue before us is whether Phillips’ complaint to a fellow employee brought him within the protection of
The majority commends the Kencar Mine management and the Union for adopting “a procedure to bridge the gap between the miner in the pit and the Federal Bureau of Mines, the Secretary‘s representative.” The majority then reasons that Phillips was protected against discharge because his complaint to his foreman was “the first prescribed step under the Kencar procedure to invoke the Mine Safety Act“. I do not understand how an “authorized representative” of the Secretary can be created, and the scope of the statute expanded, by an agreement between the company and the Union. Assuming that the hiatus perceived by the majority exists—an assumption I think unwarranted, given
IV.
The decision of the Board of Mine Operations Appeals rested on two independent grounds. First, the Board found there was no substantial evidence to support the finding of the Trial Examiner that Phillips was discharged because of his safety complaints and safety activities. After reviewing the evidence the Board found, contrary to the Examiner‘s conclusion, that the reason for the discharge was the refusal of Phillips to obey the direct order of his foreman to haul coal. Second, the Board found that even if the discharge were motivated by Phillips’ safety complaints to the foreman and the Mine Safety Committee, as a matter of law this would not bring him within the scope of
Holding that the Board‘s second independent ground was wrong, the majority is nevertheless bound by the Act to affirm the decision of the Board if the Board‘s conclusions of fact are supported by substantial evidence.
Instead of examining the Board‘s findings to determine whether they are supported by substantial evidence, the majority selectively credits testimony, and proceeds to “reject the Board‘s suggestion that Phillips was discharged only for a simple refusal to work.” The majority then finds as a fact “that the effective cause of Phillips’ discharge was his complaint about hazardous working conditions in the mine“; and
In my judgment the majority opinion violates the standard of judicial review commanded by
V.
The impact of this decision on mine operations will be substantial. Even more important and significant, in my opinion, is the determination of my colleagues to override a clear and unambiguous statutory provision and substitute the broader protection which they believe miners ought to have as a matter of policy. This is an intrusion into the legislative domain in which I cannot join.
I respectfully dissent.
Notes
No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.