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 Federal Coal Mine Health and Safety Act of 1969
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.
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.
In January 1971 a spot inspection of the mine was made by a federal safety inspector.
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.
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.
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:
Phillips then left the mine, and on 30 April a written discharge was received by him.
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'.
Phillips then sought aid from the National Labor Relations Board in the form of a complaint against Kencar. 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.
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.
From the evidence as a whole, the ALJ concluded that the discharge of Phillips was
And he further concluded
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.
Furthermore, the Board found the Administrative Law Judge's construction of the scope of section 110(b)(1) to be erroneous. According to the Board, a discharge motivated by complaints to the Mine Safety Committee would not make a prima facie case under the Safety Act, because the scope of protection of the Act is narrow. Complaints must be made to the Secretary or his authorized representative, not to fellow employees, supervisors, or the management of the mine.
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 Mine 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.
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.
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 conclusions
The Mine Safety Act protects miners who are discharged as a result of their complaints concerning safety violations in mines. Section 110(b)(1) prohibits discharge of or discrimination against a miner by reason of the fact that the miner
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.
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:
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:
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.
The Administrative Law Judge further specifically found:
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,
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 effect 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.
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 section 110(b)
Senator Kennedy also remarked that
Given this wide scope of protection intended, a liberal construction of the language of the Act is justified.
The House Committee on Education and Labor in reporting on the Act also suggested a liberal construction:
Furthermore, we note that the Third Circuit in considering a previous Mine Safety Act stressed a broad reading:
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."
The Supreme Court has construed the corresponding NLRA provision broadly: in NLRB v. Scrivener, dba AA Electric Company,
In the Mine Safety Act the words "in any other way discriminate" may be similarly construed.
We believe our view of the scope of section 110(b)(1) of the Mine Safety Act is the only practical one to ensure the health and safety of miners, which is the central purpose of the Act. Holding that miners are not protected until they initiate formal procedure for review, of which they may be unaware, would violate the goal of protecting the miners' health and would thus violate the Congressional intent.
ROBB, Circuit Judge, dissenting:
I dissent on two counts: (1) in my judgment the majority has misconstrued section 110(b)(1) of the Act; and (2) assuming that the majority rightly construes the Act, it is wrong in overturning the findings of the Board on the facts.
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:
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:
Phillips next instituted the proceeding which is now before us under section 110(b)(2) of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C. § 820(b)(2).) Seeking reinstatement, back pay and other damages he contended that his discharge was in violation of section 110(b)(1) of the Act which provides:
After a hearing the Trial Examiner (now called Administrative Law Judge) concluded that the company had violated section 110(b)(1) "by discharging the Applicant . . . because he had notified his Mine Safety Committee of alleged safety violations and dangers in the No. 1 Section of Respondent's mine." The examiner ordered the company to reinstate Phillips, with back pay and the costs and expenses of the proceeding, including attorneys' fees.
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 majority concludes "that Phillips' notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary . . . 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 section 110(b)(1) of the Act. I cannot accept this construction of the statute.
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 section 110(b)(1), I think Congress would have said so. If the majority opinion were presented to a congressional committee considering amendments to the Act it might persuade the committee that section 110(b)(1) should be broadened to cover all safety complaints no matter to whom they are made; but this court is not a legislative committee.
My conclusion is reinforced when section 110(b)(1) is considered in the context of other sections of the Act. Thus the phrase "the Secretary or his authorized representative" appears elsewhere in the statute; it is not an isolated phrase used only in section 110(b)(1). Section 103(a), 30 U.S.C. § 813(a), requires that "Authorized representatives of the Secretary shall make frequent inspections and investigations in coal mines . . . ." Section 103(b)(1) gives the Secretary "or any authorized representative of the Secretary" a right of entry to any coal mine for the purpose of inspection or investigation. Section 103(e) provides that in the event of an accident in a coal mine where rescue and recovery work is necessary "the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activity in such mine." Section 103(f) empowers "an authorized representative of the Secretary" to issue safety orders in the event of any accident occurring in a coal mine. Section 103(g) provides: "Whenever a representative of the miners has reasonable grounds to believe that a violation of a mandatory health or safety standard exists, or an imminent danger exists, such representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger." Section 103(h) directs that at the commencement of any inspection of a coal mine "by an authorized representative of the Secretary, the authorized representative of the miners at the mine at the time of such inspection shall be given an opportunity to accompany the authorized representative of the Secretary on such inspection." Section 104, 30 U.S.C. § 814, deals in detail with the findings to be made and the actions to be taken by "an authorized representative of the Secretary", with respect to dangers or violations of health or safety standards discovered upon an inspection of a coal mine.
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 section 110(b)(1) it meant a mine inspector or some other designated agent of the Secretary, and not some committee
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 section 110(b)(1)-(3). The Senator offered his amendment as an addition or amendment to section 301(h) of the Senate bill. Section 301(h) of the Senate bill became section 103(g) of the statute as enacted. (See p. 785 supra.) The Kennedy amendment was added to the Senate bill as section 301(h)(2). The Senator said: "My proposed amendment would make it unlawful for any person to discharge or otherwise discriminate against a miner for bringing suspected violations of this act to the attention of authorities." 115 Cong.Rec. 27948. (Emphasis added.) By thus referring to "authorities" and coupling his amendment to those sections of the bill which dealt with inspections by an authorized representative of the Secretary, the Senator made it clear that the authorities he had in mind were mine inspectors or other designated agents of the Secretary. See Legislative History of the Federal Coal Mine Health and Safety Act 540-41 (Comm.Print 1970).
In his remarks on the floor Senator Kennedy noted that his proposed amendment to section 301(h) "gives to miners the same protection against retaliation which we give employees under other Federal labor laws." 115 Cong.Rec. 27948. Among the other Federal labor laws to which the Senator referred was the National Labor Relations Act. That act provides, 29 U.S.C. § 158(a)(4), that it shall be an unfair labor practice "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter." It has been held however that this section does not protect an employee who has not complained to the Board or one of its agents. Hoover Design Corp. v. NLRB, 402 F.2d 987 (6th Cir. 1968). See NLRB v. Scrivener, 405 U.S. 117, 125 n. 6, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972).
I am puzzled by the majority's suggestion that Phillips came within the protection of section 110(b)(1) because he was "unfamiliar with the elaborate appeal and review procedure" established by the collective bargaining agreement. Neither do I understand the suggestion that the mine management was under a duty to explain matters to Phillips. I think the proper interpretation of the statute should not depend upon whether Phillips understood the collective bargaining grievance procedure. Moreover, I believe it was the function of the Union, which represented Phillips, and not the company, to explain the procedure to him if he was unable to understand it. In any event the record does not establish that Phillips was unfamiliar with the procedure; on the contrary he displayed considerable expertise in that field. He personally took his complaints to the Mine Safety Committee and he testified that he knew about this grievance procedure. (See addendum to Gov.Br.pp. 1a-3a.)
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 section 110(b)(1) and the additional remedies available to a miner who is concerned about his safety in the mine.
A miner who is concerned about conditions in the mine which he considers dangerous is protected by both his collective bargaining agreement and by section 502 of the Labor Management Relations Act, 29 U.S.C. § 143. In this case Phillips asserted his rights under the collective bargaining agreement and lost, because the umpire found that his
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 section 110(b)(1) of the Mine Safety Act; the question is not whether his discharge violated the collective bargaining agreement. Section 110(b)(1) forbids an employer to discharge a miner because he has notified the Secretary or his authorized representative of any alleged violation or danger; it is not directed at discharges for refusal to work or discharges in violation of a collective bargaining agreement.
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 section 502 of the Labor Management Relations Act—the gap can be closed only by act of Congress. The statute cannot be amended by a collective bargaining agreement.
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 section 110(b)(1).
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. Section 106(b) of the Act, 30 U.S.C. § 816(b), relating to judicial review of any order or decision issued by the Secretary or the Panel, provides: "The findings of the Secretary or the Panel, if supported by substantial evidence on the record considered as a whole, shall be conclusive."
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 section 106(b). There was conflicting testimony in the record, but considering all the evidence introduced at the hearing, I cannot say there was no substantial evidence to support the Board's conclusion. Although my colleagues have drawn a different conclusion from the same facts this does not authorize them to upset the Board's findings and substitute their own. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
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.
Significantly, the loader operator Ermil Justice was not discharged, nor does he seem to have been disciplined for his participation in cleaning the water sprays. The obvious inference is that Phillips was singled out because of his previous safety complaints, none of which were shown to be unjustified.
Add. at 17a-18a.
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 Title VII of the Civil Rights Act of 1964 (concerning his discriminatory discharge) was not precluded by previous submission of the grievance to final arbitration under the collective bargaining agreement.
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.