<DOC>
[DOCID: f:ct2001192.wais]

 
HUNT MIDWEST MINING, INC.
September 18, 2001
CENT 2001-192-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                       September 18, 2001

FRANKIE UNDERWOOD,               : DISCRIMINATION PROCEEDING
               Complainant       :
                                 : Docket No.  CENT 2001-192-DM
          v.                     : SC MD 01-05
                                 :
HUNT MIDWEST MINING, INC.,       : Stamper Quarry
               Respondent        : Mine ID No. 23-01926


                             DECISION

Appearances: Marlin Johanning, Esq., Atchison, Kansas, on
             behalf of Complainant;
             Rachel H. Baker, Esq., Seigfreid, Bingham, Levy,
             Selzer & Gee, P.C., Kansas City, Missouri, on
             behalf              of Respondent.

Before: Judge Melick

     This case is before me upon the Complaint of Discrimination
filed by Frankie Underwood, pursuant  to  Section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977,  30  U.S.C.  
�  801 et seq.,  (1994),  the "Act."  Mr. Underwood alleges in 
his complaint that Hunt Midwest  Mining  Inc.  (Hunt  Midwest)  
violated Section 105(c)(1) of the Act when he was discharged 
for not  reporting to work  for  three consecutive days.[1]  
Underwood maintains that he refused to report to work because 
it would have been hazardous to do so.

     In his initial  complaint  filed  December  7, 2000, with
the Department of Labor's Mine Safety and Health Administration
(MSHA), Mr. Underwood alleged as follows:

          On  11/8/00  Gary Wright told me I was relieved  of
     duty as stripping foreman.   At that point he offered me
     any job I wanted at the Stamper  plant.   I would report
     to work on 11/13/00, when I got there they  offered me a
     mechanics job.  I refused to do this job.  I  had a talk
     with Gary Wright and Jim Murray explained to them that I
     was not a mechanic & it wasn't safe for the guys running
     the equipment if I was to take the job.  Gary then  said
     that  the  only  job we have take it or leave it.  I was
     discharged for not  reporting to work, because I refused
     to perform an unsafe act.  I would like to be reinstated
     plus back pay for wages lost.

     At hearings Underwood  testified  that  he  began working
for Hunt  Midwest  in April of 1990 as an equipment operator.
Except for  a one-year period  when  he  worked  elsewhere  he
continued working  as an equipment operator until January 2000.  
He was then promoted to  stripping  foreman, responsible for 8 
to 15 employees who were removing top soil.   He  continued  to  
receive  the same hourly rate of pay. According to Underwood, on 
November 8, 2000, he was told by Gary Wright, then manager of 
Hunt Midwest's Western Operations,  that he was being relieved 
of his duties as a foreman because of his lack of communication.

     According  to Underwood, when he reported to his new job
site at the Stamper Quarry the following Monday, November 13,
mine foreman Willis Pretzer, allowed him to take off and report
the following day, November 14th. When Underwood reported back
the next day Pretzer furnished him with a hard hat and showed
him around the mine site. Pretzer  wanted  Underwood  to start
the equipment in the morning, do some welding and to help him 
keep the equipment  running until he hired a mechanic.  He 
purportedly also told Underwood that he would be cutting his
pay to $12.00 an hour. Dissatisfied with this rate of pay, 
Underwood told Pretzer that he would have to  talk  to  Jim
Murray, Hunt Midwest's Vice President and General Manager, 
about increasing his pay.

     Underwood did not begin  working  but  went to see Murray
who was then at the corporate offices at the Randolph  Mine 
about one-half  mile away.  Although he was uncertain of the 
date, sometime later that week Underwood received a conference 
call from Murray and Wright during which  they agreed to raise 
his  pay  to  $14.00  an  hour.  During  the  course  of  this   
conversation, Underwood apparently expressed some concern about 
performing mechanical work and  Murray or Wright reassured him 
that he would not be expected to overhaul or replace  engines. 
In specific response to one of his questions, Underwood  was 
also told that  he  would  not  be  asked  to  repair  brakes.  
Underwood acknowledges that  at no time was he asked to perform 
any specific duty for which he felt  he  was not qualified.  
Based on his allegations herein it may therefore also be 
inferred that he was likewise not asked to perform any duty
which he felt would have been unsafe.  At the  conclusion of
his conversation  with  Wright  (which  Underwood  believed
occurred subsequent to the conference call) he was again 
offered a job at the Stamper Quarry.   Wright  wanted him to 
report to work Friday, November 17.  In response, Underwood 
admits that he said "okay."  Underwood further  admits  that  
he  thereafter never did show up for work and never returned 
to the quarry.

     This  Commission  has long  held that a miner seeking to
establish  a  prima  facie  case of discrimination  under
Section 105(c) of the Act bears the burden  of  persuasion that 
he engaged in protected activity and that the adverse  action 
complained of was  motivated  in any part by that activity.  
Secretary on behalf of Pasula v. Consolidated  Coal  Co.,  2  
FMSHRC  2786, 2797-2800 (1980),  rev'd  on  grounds,  sub nom. 
Consolidated Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 
1981);  and  Secretary on behalf of  Robinette  v.  United  
Castle Coal Co., 3 FMSHRC  803, 817-18 (1981).  The operator 
may rebut  the  prima  facie case by showing either  that no 
protected activity occurred or  that  the adverse action was  
in no part motivated by the protected activity. If an operator
cannot  rebut the prima facie case in this manner, it may
nevertheless defend affirmatively  by  proving that it would
have taken the adverse action in any event on  the basis of 
the miner's unprotected activity alone.  Pasula, supra; 
Robinette, supra. See also Eastern Assoc., Coal Corp. v. FMSHRC, 
813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 
Construction  Co.,  732  F.2d 194, 195-196  (6th  Cir. 1983) 
(specifically approving the Commission's Pasula-Robinette  
test).  Cf.  NLRB  v. Transportation Management Corp., 462 U.S. 
393, 397-413 (1983) (approving  nearly identicaltest under 
National Labor Relations Act.)

     The  Complainant herein asserts that he is entitled to
relief under a "work refusal" theory.  The Act grants miners 
the right to complain of  a  safety or health danger or 
violation, but does not expressly state that miners have the
right to refuse to work under such circumstances. Nevertheless,  
the Commission and the courts have recognized the right to 
refuse to  work  in  the  face  of a perceived  danger.  In 
order to be protected however work refusals must be based upon 
the miner's "good faith, reasonable belief in a hazardous
condition."   Robinette,  3  FMSHRC  at  810; Gilbert v.
FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989).  A good faith
belief "simply means honest belief that a hazard exists."   
Robinette, 3  FMSRC  at  810. Consistent with the requirement  
that the Complainant establish  a good faith, reasonable belief 
in a hazard "a miner refusing work should  ordinarily 
communicate, or at least attempt to communicate, to some  
representative  of  the operator, his belief in the safety or
health hazard at issue."  Secretary of Labor,  on  behalf of 
Dunmire v. Northern Coal Company,  4 FMSHRC 126, 133 (February 
1982).

     The first  issue  to be addressed in this case is whether
the Complainant  eve  actually  refused  to  work. In his last
communication with mine management (in either  a  conference
call with Murray and Wright or a subsequent call with Wright 
alone) the Complainant  concedes  that  when he was offered 
work at $14.00 an hour at the Stamper Quarry and  was told to 
report there for work, he responded "okay."  There were  no 
subsequent communications and Underwood acknowledges that he 
never  did  show  up  for work. He subsequently received a 
letter notifying him of his discharge for failing to "show up 
for work for three or more consecutive days without  
notification to [his]  supervisor." (Exh. C-3). Considering  
Underwood's testimony alone, I find that his expression "okay" 
in response to management's  offer of employment was indeed an 
acceptance of work and not a refusal to work. Under the
circumstances his failure to subsequently show  up  for work,
without any further communication, can in no way be construed 
as a "work refusal."

     Even  assuming, arguendo, that his failure to appear for
work may be construed as a "work refusal" such a "refusal" to
work cannot in any way be construed as having been the result 
of any hazardous  condition. Underwood admittedly was never 
told to perform  any specific job function that he deemed to 
be hazardous. Indeed, when  Underwood  apparently  expressed 
some concerns about performing  job  duties  as  a  mechanic  
for  which he was not qualified,  Murray  and Wright allayed 
any such  concerns  in the conference call when they 
specifically stated that he would not be performing such duties  
as  overhauling engines, replacing engines and,  in  response  
to a specific question from Underwood, not repairing brakes.  
If  Underwood  had  any  other  concerns about hazardous 
conditions,  he  admittedly  did  not communicate those
concerns to management. For these additional reasons I cannot
find that the  Complainant  has  met his burden to establish
a protected "work refusal."

     In  reaching  these  conclusions, I have not disregarded
the decision  by  Deputy  S. Stacey, of the Missouri Division
of Employment Security, holding that Mr. Underwood, was
"disqualified from 11/19/00 because the Complainant failed 
without good cause on 11/16/00 to apply for or accept available 
suitable work." (Exh. No. C-2).[2]

     The "reason" given by Deputy Stacey for  the  holding  was
as follows:

          The  Claimant  refused  an offer of work because he
     believed he could not perform the work without training.
     The employer was willing to "train him on that job."

     The Complainant argues that this "reason" was inconsistent
with the Respondent's claims herein. It is not at all clear
however  that the stated "reason" was based upon  any  defense
or claim by this  Respondent  or  upon  any  evidence of record
since neither the pleadings nor the complete record  of such
proceedings was introduced at these proceedings.[3]  Under the
circumstances can give but little weight to the Complainant's 
argument herein.

     Under all the circumstances I find that the  Complainant
has failed  to  sustain  his  burden of proving a violation of
Section 105(c)(1)  of  the  Act  and his  Complaint  must  
accordingly be dismissed.



                              ORDER

     Discrimination Proceeding Docket No. CENT 2001-192-DM is
hereby dismissed.


                              Gary Melick
                              Administrative Law Judge


Distribution: (Certified Mail)

Frankie Underwood, 819 Kiowa, Leavenworth, KS 66048

Marlin  Johanning,  Esq.,  5th   &   Commercial,  Southwest,  
500 Commercial Street, Atchison, KS 66002

Rachel H. Baker, Esq., John M. Neyens,  Esq.,  Seigfreid,
Bingham, Levy,  Selzer & Gee, P.C., 2800 Commerce Tower, 
911  Main Street, Kansas City, MO 64105

\mca


**FOOTNOTES**

     [1]: Section 105(c)(1) of the Act provides as follows:

     No  person  shall  discharge  or  in any manner discriminate
against  or  cause  to  be  discharged  or  cause  discrimination
against or otherwise interfere with the exercise of the statutory
rights of any miner, representative of miners  or  applicant  for
employment  in any coal or other mine subject to this Act because
such miner, representative  of miners or applicant for employment
has  filed or made a complaint  under  or  related  to  this Act,
including  a  complaint  notifying the operator or the operator's
agent, or the representative  of  the miners at the coal or other
mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or
applicant for employment is the subject  of  medical  evaluations
and  potential  transfer  under a standard published pursuant  to
section 101 or because such  miner, representative  of  miners or
applicant   for   employment   has instituted  or  caused  to  be
instituted any proceeding under  or related  to  this  Act or has
testified  or  is  about  to  testify in any such proceeding,  or
because of the exercise by such  miner, representative  of miners
or applicant for employment on behalf of himself or others of any
statutory right afforded by the Act.

     [2]: The parties agree that this decision is now before  the
Missouri  Court  of  Appeals  upon a request for reconsideration.
Accordingly the deputy's decision is not yet final.

     [3]: The Complainant was granted  additional  time following
hearings to produce such a record but failed to do so.