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January 30, 1973 safety complaints and safety activities, Included among the Administraand to set an example for other em- tive Law Judge's Conclusions of ployees not to complain of safety and
Law were the following: health conditions or interrupt production by making necessary safety adjustments 3. An employer's discrimination against and repairs.
a coal miner because the miner has noti
fied his Mine Safety Committee (or one We find no substantial evidence
of its members) of an alleged safety in the record to support the above
violation or danger at the mine is a violatwo findings. We find instead that
tion of section 110(b) (1) (A) of the Act. the preponderance of the evidence 4. Respondent violated section 110(b) manifested by the testimony of
(1) (A) of the Act by discharging the Phillips before the Administrative
Applicant on April 28, 1971, because he
had notified his Mine Safety Committee Law Judge (Tr. 14–15) and before
of alleged safety violations and dangers the umpire (Ex. 4(a), p. 65) Ermil in the No. 1 Section of Respondent's mine. Justice (Tr. 31), and H. E. Ed
We hold these two Conclusions of wards, the foreman (Tr. 110), and
Law to be an erroneous construction Exhibit 1 establishes the reason for
of the Act for reasons set forth the discharge to be the refusal of
herein. Phillips to obey the direct order of
In this appeal, Phillips contends the foreman to haul coal. Although
that his frequent safety complaints the foreman's action may be looked to foreman Edwards and occasionupon as harsh or extreme, it is not
ally to members of the mine safety within the province of the Judge or
committee motivated his discharge. this Board to find that he had no
Assuming arguendo, that the foreauthority to discharge any miner
man did know of such reports to a who disobeyed an order to work or
safety committeeman and was motiotherwise acted in an unreasonable
vated by them, this alone would not manner. We note that the umpire in
make a prima facie case under secthe arbitration proceeding con
tion 110 of the Act. The scope of cluded, “As unpleasant as it is, the
the protection afforded by section umpire must find that the manage
110(b)(1)(A) is narrow. See Munment had the right under such cir
sey v. Smitty Baker Coal Co. Inc., cumstances to discharge the em
IBMA 144 at 154, 79 I.D. 501, 505. ployee (italics added) (Ex. 4(c),
(1972), wherein we stated : p. 11). We are concerned here only
* * However, the plain language of with the question of whether the
clause (A) of subsection 110(b) (1) discharge was in violation of sec
limits the protection to reporting alleged tion 110(b) (1) (A) of the Act. The violations or dangers to the Secretary or principal objective of that section his authorized representative. It does not is to preserve the integrity of the protect the making of general safety pro
tests or the reporting of alleged violaAct and not to provide a new forum
tions or dangers to fellow employees, sufor the litigation of management
pervisors, or the management of the coal and labor grievances.
mine. * * * (Italics added)
We find nothing in the record to virtue of the record before us and support a finding or an inference not because we were controlled or that Phillips either reported or in- bound by the umpire's findings and tended to initiate a reporting proc- determination. He made his decision ess to the Secretary or his author- pursuant to the arbitration proviized representative, or that man- sions of the union wage agreement agement in discharging him was and the record presented to him. He motivated by such belief. We hold, expressly stated in his decision that therefore, that Phillips failed to he had “no authority to interpret or prove entitlement to reinstatement enforce the regulations of the Fedor back wages pursuant to section eral [Coal Mine] Health and Safety 110(b) of the Act and that the con- Act" and declined to rule on the trary ruling of the Judge must be question as to whether the disreversed.
charge violated any rights granted II
to the applicant under that Act
(Ex. 4(c), p. 10). We may very well BCOA, as amicus curiae, contends consider and weigh the findings of that the Judge erred by refusing fact of an arbitrator for whatever to find as controlling the umpire's they may be worth as persuasive in determination that Phillips was dis
reaching our decision provided such charged for refusing to work. In
findings are made a part of the support of its contention, BCOA record before us, but we are not submits that Phillips had con- bound by his decision. Our duty, tracted to arbitrate his grievance unlike his, is to rule only on the pursuant to the union wage agree- question of whether the discharge ment, supra, and points out that the
violates the provisions of section arbitrator's ruling was subsequently 110(b) of the Act. appealed to the Regional Director
As delegates of the Secretary, we of the National Labor Relations
are obliged by the mandate of secBoard (NLRB), who refused to as
tion 110(b) (2) of the Act to: (1) sert jurisdiction (ostensibly on the
see that an investigation is made of ground that the arbitration pro- alleged violations of section 110(b) ceeding was determinative of the
(1); (2) provide an opportunity issue). BCOA submits that there
for a public hearing; and (3) make are sound policy considerations why a decision, independent of other adthe Board should follow the lead ministrative forums, determining of the NLRB and defer to the um
the rights of the parties under the pire's decision. We cannot agree provisions of the Act. Should we with this view.
defer to an umpire's decision made In reversing the Judge's decision under the National Labor Relations in this case, it so happens that we Act of 1947 (NLRA), or an arbihave reached the same result as that tration agreement, as controlling of the umpire, but we did so by upon us, we would be abdicating the
January 30, 1973
statutory obligations assigned to Although the Board may be inthe Secretary by the Congress. fluenced by the persuasiveness of an These two public laws (NLRA and umpire's findings in an arbitration the Act) are inherently different proceeding if, as stated above, it is designed to accomplish different ob- incorporated into the record of a jectives, and have been assigned by case before us, we hold that this Congress to different agencies for Board is not bound or controlled administration and enforcement. In thereby in determining the rights of VLRB v. Pacific Intermountain the parties under the Act. We Express Co., 228 F.2d 170, 176 (8th reverse the Administrative Law Cir., 1955) the Court said:
Judge on the merits of this case, but * Each fact-finding agency is en
we find no error committed by him titled to make its own decision upon the
in failing to treat the umpire's decievidence before it, and the fact that an- sion as binding or controlling upon other tribunal has reached, a different him. conclusion upon the same issue arising
ORDER out of the same transaction does not invalidate any decision which has proper
WHEREFORE, pursuant to the evidentiary support. * *
authority delegated to the Board by BCOA also expresses concern that the Secretary of the Interior (43 our Departmental decisions may CFR 4.1(4)), IT IS HEREBY have the effect of undermining the ORDERED that the Order of the grievance and arbitration proce- Administrative Law Judge, issued dures promulgated under the union
June 8, 1972, reinstating applicant, wage agreement. This is neither the
Franklin Phillips, to employment intent of the Act nor of the Board. and awarding other damages, IS As we stated in Munsey, supra, 1 REVERSED and the application IBMA at 158 and 79 I.D. 507 :
C. E. ROGERS, JR., Chairman.
* * * Section 110 of the Act may not be broadened to provide relief for all unfair or unjust labor practices, and may not be used as a vehicle for resolving grievances which are subject to arbitration under a labor contract or disputes under general labor law.
David DOANE, Member.
HOWARD J. SCHELLENBERG, JR.,
February 7, 1973
Construction and Operation: General Rules of Construction
APPEALS OF CEN-VI-RO OF
Decided February 7, 1973 Appeals Under Contract No. 14-06D-5028, Specifications No. DC-6000 and Contract No. 14-06-D-5244, Specifications No. DC-6130.
Canadian River Project Texas. Bureau of Reclamation.
Sustained in Part-Dismissed in Part.
Where a contract provision prescribed a method for the repair of airholes in gasket bearing areas of concrete pipe and provided that “All other repairs shall be made in accordance with the procedures of Chapter VII of the Sixth Edition of the Bureau of Reclamation Concrete Manual,” and the Concrete Manual, in addition to prescribing methods of repair, listed nine defects which were normally repairable and where the evidence established that during contract performance the parties considered the Concrete Manual to control not only methods of repair but also the types of repairable defects, repair of the listed defects was permissible notwithstanding that the contract reference was to "procedures" of the Concrete Manual and the Government's contention that under the dictionary "procedures” and “methods” have the same meaning. Contracts: Construction and Operation: Changes and Extras–Contracts: Construction and Operation: Drawings and Specifications Contracts: Construction and Operation: Intent of Parties
Contracts: Construction and Operation: Actions of Parties Contracts: Construction and Operation: Changes and Extras Contracts: Construction and Operation: General Rules of Construction
Where the Board found that the contracts contemplated that repair of listed defects in accordance with the Concrete Manual was permissible and the Concrete Manual contained a provision providing that "repairs should not be permitted when the imperfections or damage are the result of a continuing failure to take known corrective action," the Board rules that a reasonable interpretation of the quoted provision would permit the denial of otherwise allowable repairs if the defects or damage were attributable to the contractor's continued or prolonged failure to implement measures which the contractor either knows or as a reasonably skilled contractor should know would eliminate or alleviate
80 I.D. No. 2
Where the contractor's interpretation of an arguably ambiguous construction contract provision governing variations in internal pipe diameters would largely nullify a limitation on the length of the pipe over which the maximum internal variation of the pipe could extend and where the contractor did not protest the Government's interpretation, but took actions which were only consistent with agreement to or acquiescence in the Government's interpretation, the Board holds that a disagreement with the Government's interpretation first expressed over three months after a problem with internal pipe diameters was brought to the contractor's attention by the rejection of a substantial quantity of pipes was untimely and the contractor's claim for a constructive change based on misinterpretation of the contract was denied. Contracts: Construction and Operation: Actions of Parties-Contracts: