Wellmore Coal Corp v. MSHR ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    WELLMORE COAL CORPORATION,
    Petitioner,
    v.
    No. 97-1280
    FEDERAL MINE SAFETY & HEALTH
    REVIEW COMMISSION; BILLY R.
    MCCLANAHAN,
    Respondents.
    On Petition for Review of an Order
    of the Federal Mine Safety and Health Review Commission.
    (VA-95-9-D)
    Argued: October 28, 1997
    Decided: December 30, 1997
    Before RUSSELL and WIDENER, Circuit Judges, and
    TRAXLER, United States District Judge for the
    District of South Carolina, sitting by designation.
    _________________________________________________________________
    Reversed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Donna Colberg Kelly, SMITH, HEENAN & ALTHEN,
    Charleston, West Virginia, for Petitioner. Martin Douglas Wegbreit,
    CLIENT CENTERED LEGAL SERVICES OF SOUTHWEST VIR-
    GINIA, INC., Castlewood, Virginia, for Respondents. ON BRIEF:
    Ronald L. King, ROBERTSON, CECIL, KING & PRUITT, Grundy,
    Virginia; Ronald E. Meisberg, SMITH, HEENAN & ALTHEN,
    Washington, D.C., for Petitioner.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    The issue presented on appeal is whether the Federal Mine Safety
    and Health Review Commission (the "Commission") properly
    reversed an administrative law judge's ("ALJ's") determination that
    Wellmore Coal Corporation ("Wellmore") did not discriminate
    against an independent contractor. Because we find that the ALJ's
    determination was supported by substantial evidence, we hold that the
    Commission misapplied its statutory standard of review. Accordingly,
    we reverse the Commission's decision.
    I.
    In 1978, Billy R. McClanahan ("McClanahan") began working as
    a haulage truck driver for Wellmore, which mines and processes coal
    in Southwestern Virginia and Eastern Kentucky. On August 20, 1992,
    Wellmore informed its drivers that it was terminating its trucking
    business, but that former drivers could purchase the company's trucks
    and continue to haul refuse as independent contractors. McClanahan
    purchased the 1990 Ford truck he had driven as a Wellmore employee
    and began hauling coal refuse for Wellmore as an independent con-
    tractor.
    In December 1993 or January 1994, Wellmore opened a new refuse
    area. The truck route to the new area was approximately two miles
    longer than the previous route and included a one-lane road over a
    hill, thus taking longer to travel. At approximately this time, in an
    effort to increase refuse removal, Wellmore instituted a policy which
    2
    prohibited a trucker with a load weighing less than 24 tons from haul-
    ing for the remainder of his shift or the following day.1 Wellmore
    enforced the policy through random weighing.
    Wellmore's imposition of the weight requirement led to a series of
    events that culminated with the termination of McClanahan's con-
    tract. On September 12, 1994, McClanahan's truck weighed 23.65
    tons and he was not permitted to haul the remainder of that day or his
    next shift. When he returned on September 14, 1994, his truck
    weighed 22.74 tons, and again he was not allowed to haul the remain-
    der of that day or his next shift. On September 19, 1994, his truck
    weighed 23.50 tons, and once more, Wellmore prohibited him from
    hauling the remainder of that day or his following shift.
    On September 22, 1994, the trucking foreman and two members of
    Wellmore's management met with McClanahan and discussed his
    failure to abide by the weight requirement. According to McClana-
    han, he had consistently protested the weight requirement, maintain-
    ing that hauling 24 or more tons constituted an unacceptable safety
    hazard. Wellmore offered McClanahan an alternative route hauling
    refuse from another plant that paid drivers by the ton rather than by
    the hour. When McClanahan rejected this offer, Wellmore informed
    him that his contract would be terminated the next time his truck was
    underweight. Later that day, McClanahan's truck weighed 22.96 tons,
    and he was terminated as an independent contractor. McClanahan
    then instituted a discrimination suit against Wellmore.
    II.
    Under the Federal Mine Safety and Health Act of 1977 (the "Mine
    Act"),2 miners3 generally have the right to complain of a safety or
    health hazard and refuse to perform work which they perceive as haz-
    _________________________________________________________________
    1 Wellmore's Vice President stated that the policy was enacted to
    ensure that the drivers, who were paid to haul by the hour, and not by
    the ton, were hauling a sufficient amount.
    2 
    30 U.S.C. §§ 801-962
     (1994).
    3 The Mine Act defines "miner" as "any individual working in a coal
    or other mine." 
    30 U.S.C. § 802
    (g) (1994). Therefore, McClanahan is
    covered by the provisions of the Act.
    3
    ardous, provided that the complaints and work refusals are based
    upon the miner's good faith, reasonable belief in a hazardous condition.4
    Pursuant to § 105(c) of the Mine Act,5 McClanahan filed a discrimi-
    nation suit against Wellmore, claiming he was fired because he
    objected to hauling loads that constituted an unacceptable safety haz-
    ard. After an investigation, the Mine Safety and Health Administra-
    tion ("MSHA") concluded that no violation had occurred. On January
    6, 1995, McClanahan filed a complaint on his own behalf with the
    Commission, which then assigned the case to an ALJ.
    A.
    On June 6, 1995, the ALJ conducted a 15-hour hearing in which
    both parties presented testimony, submitted evidence, and cross-
    examined witnesses. The ALJ determined that, while McClanahan
    had expressed general safety concerns regarding the weight require-
    ment, his concerns were not based on a good faith belief that hauling
    loads of 24 or more tons was hazardous.
    _________________________________________________________________
    4 Gilbert v. FMSHRC, 
    866 F.2d 1433
    , 1439 (D.C. Cir. 1989); Secretary
    ex rel. Robinette v. United Castle Coal Co., 3 F.M.S.H.R.C. 803, 812
    (1981).
    5 
    30 U.S.C. § 815
    (c) (1994), provides in part that:
    (c)(1) 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 . . . because such miner . . . has filed or made a com-
    plaint under or related to this chapter, including a complaint noti-
    fying the operator . . . of an alleged danger or safety or health
    violation in a coal or other mine . . .
    (c)(2) Any miner . . . who believes that he has been discharged,
    interfered with, or otherwise discriminated against by any person
    in violation of this subsection may . . . file a complaint with the
    Secretary alleging such discrimination. . . .
    (c)(3) If the Secretary, upon investigation, determines that the
    provisions of this subsection have not been violated, the com-
    plainant shall have the right . . . to file an action on his own
    behalf before the Commission charging discrimination or inter-
    ference in violation of paragraph (1). . . .
    4
    In making his determination, the ALJ emphasized that"prior to
    becoming a truck owner McClanahan repeatedly hauled loads weigh-
    ing more than 24 tons without making known his supposed safety
    concerns to either management or to MSHA."6 The ALJ also noted
    that as an independent contractor, McClanahan had assumed financial
    responsibility for the truck's upkeep and maintenance, and therefore,
    McClanahan's concerns "were those of a truck owner for the cost of
    the requirement to his business and not those of a driver for his and
    others' safety."7
    Finally, the ALJ concluded that McClanahan's failure to complain
    to MSHA about the purported safety hazards indicated his lack of
    good faith. McClanahan testified that:
    I . . . called MSHA about the hazardous conditions and at
    the time I didn't write down who I talked to or anything.
    They just said they couldn't help.8
    The ALJ discredited this testimony for three reasons. First, McClana-
    han later modified his testimony and stated that his wife had called
    MSHA. Second, McClanahan's failure to remember who placed the
    call was at odds with the carefully written records he maintained of
    his conversations and incidents related to his ultimate termination.
    Third, if a complaint to MSHA was made, the ALJ thought it highly
    unlikely that MSHA would indicate it was powerless to act. Accord-
    ingly, the ALJ determined that McClanahan's safety complaints were
    not made in good faith and dismissed the discrimination suit.
    B.
    McClanahan then filed a petition for discretionary review with the
    full Commission, which determined that the ALJ's finding was not
    supported by substantial evidence. The Commission concluded that
    McClanahan's record of hauling loads in excess of 24 tons did not
    establish that he was unconcerned with his safety. Additionally, the
    _________________________________________________________________
    6 J.A. at 58.
    7 
    Id.
    8 
    Id. at 60
    .
    5
    Commission did not find demonstrative of a lack of good faith evi-
    dence that McClanahan only voiced his complaints after purchasing
    the truck. Finally, the Commission determined that substantial evi-
    dence established that McClanahan engaged in actions which consti-
    tuted safety complaints. Having found that McClanahan's complaints
    demonstrated his good faith belief of a safety hazard, the Commission
    further found that McClanahan's belief was reasonable and that Well-
    more failed to respond adequately to McClanahan's concern. Accord-
    ingly, the Commission ordered McClanahan's immediate
    reinstatement and remanded the action for a calculation of back pay,
    interest, and attorney's fees. Wellmore now appeals, claiming that the
    Commission erred in reversing the ALJ's determination.
    III.
    Although the Commission recognized that it "is bound by the terms
    of the Mine Act to apply the substantial evidence test when reviewing
    an administrative law judge's decision,"9 it nevertheless ignored this
    limitation, and merely substituted a competing view of the facts.
    Accordingly, we hold that the Commission misapplied its statutory
    standard of review and reverse the Commission's decision.
    Section 113(d) of the Mine Act explicitly states that the Commis-
    sion's review authority is limited to one or more of five specified
    grounds:
    (I) A finding or conclusion of material fact is not supported
    by substantial evidence.
    (II) A necessary legal conclusion is erroneous.
    (III) The decision is contrary to law or to the duly promul-
    gated rules or decisions of the Commission.
    (IV) A substantial question of law, policy or discretion is
    involved.
    _________________________________________________________________
    9 
    Id. at 69
    .
    6
    (V) A prejudicial error o[f] procedure was committed.10
    Thus, "the only ``question' related to the factual findings of an ALJ
    that the Commission can consider is whether those findings are sup-
    ported by substantial evidence."11 The Supreme Court has defined
    substantial evidence as "``such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.'"12
    We find Donovan ex rel. Chacon v. Phelps Dodge Corp.13 particu-
    larly relevant to our inquiry. In that case, the United States Court of
    Appeals for the D.C. Circuit held that the Commission improperly
    reversed an ALJ's determination that an employer had illegally dis-
    criminated against an employee active in promoting mine safety. The
    court noted that:
    . . . the Commission did no more than substitute a competing
    view of the facts for the view the ALJ reasonably reached.
    There can be little doubt that the ALJ's findings were amply
    supported by substantial evidence, and even if the Commis-
    sion's own view found support in the record as well, it was
    bound to uphold the ALJ's determinations.14
    Similarly, in the instant case, our review of the record demonstrates
    that the ALJ's determination was supported by substantial evidence.
    We, like the ALJ, emphasize the fact that before purchasing the truck,
    McClanahan repeatedly hauled loads in excess of 24 tons without
    complaint. Specifically, McClanahan signed at least 133 time sheets
    from 1990 to 1992 indicating that his load exceeded 24 tons.
    McClanahan contends that the ALJ failed to consider the record as
    a whole, and only evaluated the evidence favorable to Wellmore. For
    _________________________________________________________________
    10 
    30 U.S.C. § 823
    (d)(2)(A)(ii) (1994).
    11 Donovan ex rel. Chacon v. Phelps Dodge Corp., 
    709 F.2d 86
    , 91
    (D.C. Cir. 1983).
    12 Richardson v. Perales, 
    402 U.S. 389
    , 401 (1971) (quoting
    Consolidated Edison Co. v. NLRB, 
    305 U.S. 197
    , 229 (1938)).
    13 
    709 F.2d 86
     (D.C. Cir. 1983).
    14 Chacon, 
    709 F.2d at 92
     (internal citations omitted).
    7
    example, although the ALJ noted that McClanahan's truck had a haul-
    ing capacity of 15 tons, McClanahan contends that the ALJ then
    ignored the overwhelming evidence that demonstrated the danger of
    exceeding this capacity. Such evidence included the 1990 Ford Truck
    Owner's Guide, which warned against exceeding the hauling capac-
    ity, and a MSHA Bulletin dated November 22, 1994 which warned
    about overloading trucks.
    We disagree with McClanahan. The ALJ heard, evaluated, and
    weighed the evidence, made credibility determinations, and rendered
    a reasoned decision. "``[T]he ALJ has sole power to make credibility
    determinations and resolve inconsistencies in the evidence.'"15 The
    fact that evidence exists in the record to support McClanahan's posi-
    tion is not determinative. Rather, the Commission's review was statu-
    torily limited to whether the ALJ's findings of fact were supported by
    substantial evidence. The "``possibility of drawing two inconsistent
    conclusions from the evidence does not prevent an administrative
    agency's finding from being supported by substantial evidence.'"16
    IV.
    Based on the foregoing reasons, we find that the ALJ's determina-
    tion was supported by substantial evidence. Accordingly, we reverse
    the Commission's decision.
    REVERSED
    _________________________________________________________________
    15 Grizzle v. Pickands Mather & Co./Chisholm Mines, 
    994 F.2d 1093
    ,
    1096 (4th Cir. 1993) (quoting Freeman United Coal Mining Co. v. Bene-
    fits Review Bd., 
    912 F.2d 164
    , 168 (7th Cir. 1990)).
    16 Wamsley v. Mutual Min., Inc. , 
    80 F.3d 110
    , 113 (4th Cir. 1996)
    (quoting Consolo v. Federal Maritime Comm'n , 
    383 U.S. 607
    , 620
    (1966)); see also Parker v. DOWCP, 
    590 F.2d 748
    , 749 (8th Cir. 1979)
    (stating that if the ALJ's decision is "adequately supported by the evi-
    dence and not inconsistent with the law[,] the[ALJ's] determination is
    conclusive, and it is immaterial that the facts permit the drawing of
    diverse inferences.").
    8