January 30, 1973 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. We find no substantial evidence in the record to support the above two findings. We find instead that the preponderance of the evidence manifested by the testimony of Phillips before the Administrative Law Judge (Tr. 14-15) and before the umpire (Ex. 4(a), p. 65) Ermil Justice (Tr. 31), and H. E. Edwards, the foreman (Tr. 110), and Exhibit 1 establishes the reason for the discharge to be 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 (italics added) (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. Included among the Administrative Law Judge's Conclusions of Law were the following: 3. An employer's discrimination against a coal miner because the miner has notified his Mine Safety Committee (or one of its members) of an alleged safety violation or danger at the mine is a violation of section 110(b) (1) (A) of the Act. 4. Respondent violated section 110(b) (1) (A) of the Act by discharging the Applicant on April 28, 1971, because he had notified his Mine Safety Committee of alleged safety violations and dangers in the No. 1 Section of Respondent's mine. We hold these two Conclusions of Law to be an erroneous construction of the Act for reasons set forth herein. In this appeal, Phillips contends that his frequent safety complaints to foreman Edwards and occasionally to members of the mine safety committee motivated his discharge. Assuming arguendo, that the foreman did know of such reports to a safety committeeman and was motivated by them, this alone would not make a prima facie case under section 110 of the Act. The scope of the protection afforded by section 110(b) (1) (A) is narrow. See Munsey v. Smitty Baker Coal Co. Inc.. 1 IBMA 144 at 154, 79 I.D. 501, 505(1972), wherein we stated: ***However, the plain language of clause (A) of subsection 110(b) (1) limits the protection to reporting alleged violations or dangers to the Secretary or his authorized representative. It does not protect the making of general safety protests or the reporting of alleged violations or dangers to fellow employees, supervisors, or the management of the coal mine. * (Italics added) # We find nothing in the record to support a finding or an inference that Phillips either reported or intended to initiate a reporting process to the Secretary or his authorized representative, or that management in discharging him was motivated by such belief. We hold, therefore, that Phillips failed to prove entitlement to reinstatement or back wages pursuant to section 110(b) of the Act and that the contrary ruling of the Judge must be reversed. II BCOA, as amicus curiae, contends that the Judge erred by refusing to find as controlling the umpire's determination that Phillips was discharged for refusing to work. In support of its contention, BCOA submits that Phillips had contracted to arbitrate his grievance pursuant to the union wage agreement, supra, and points out that the arbitrator's ruling was subsequently appealed to the Regional Director of the National Labor Relations Board (NLRB), who refused to assert jurisdiction (ostensibly on the ground that the arbitration proceeding was determinative of the issue). BCOA submits that there are sound policy considerations why the Board should follow the lead of the NLRB and defer to the umpire's decision. We cannot agree with this view. In reversing the Judge's decision in this case, it so happens that we have reached the same result as that of the umpire, but we did so by virtue of the record before us and not because we were controlled or bound by the umpire's findings and determination. He made his decision pursuant to the arbitration provi sions of the union wage agreement and the record presented to him. He expressly stated in his decision that he had "no authority to interpret or enforce the regulations of the Federal [Coal Mine] Health and Safety Act" and declined to rule on the question as to whether the discharge violated any rights granted to the applicant under that Act (Ex. 4 (c), p. 10). We may very well consider and weigh the findings of fact of an arbitrator for whatever they may be worth as persuasive in reaching our decision provided such findings are made a part of the record before us, but we are not bound by his decision. Our duty, unlike his, is to rule only on the question of whether the discharge violates the provisions of section 110(b) of the Act. As delegates of the Secretary, we are obliged by the mandate of section 110 (b) (2) of the Act to: (1) see that an investigation is made of alleged violations of section 110 (b) (1); (2) provide an opportunity for a public hearing; and (3) make a decision, independent of other administrative forums, determining the rights of the parties under the provisions of the Act. Should we defer to an umpire's decision made under the National Labor Relations Act of 1947 (NLRA), or an arbitration agreement, as controlling upon us, we would be abdicating the January 30, 1973 statutory obligations assigned to the Secretary by the Congress. These two public laws (NLRA and the Act) are inherently different, designed to accomplish different objectives, and have been assigned by Congress to different agencies for administration and enforcement. In NLRB v. Pacific Intermountain Express Co., 228 F.2d 170, 176 (8th Cir., 1955) the Court said: Each fact-finding agency is entitled to make its own decision upon the evidence before it, and the fact that another tribunal has reached a different conclusion upon the same issue arising out of the same transaction does not invalidate any decision which has proper evidentiary support. * * BCOA also expresses concern that our Departmental decisions may have the effect of undermining the grievance and arbitration procedures promulgated under the union wage agreement. This is neither the intent of the Act nor of the Board. As we stated in Munsey, supra, 1 IBMA at 158 and 79 I.D. 507: *** 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. Although the Board may be influenced by the persuasiveness of an umpire's findings in an arbitration proceeding if, as stated above, it is incorporated into the record of a case before us, we hold that this Board is not bound or controlled thereby in determining the rights of the parties under the Act. We reverse the Administrative Law Judge on the merits of this case, but we find no error committed by him in failing to treat the umpire's decision as binding or controlling upon him. ORDER WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43 CFR 4.1(4)), IT IS HEREBY ORDERED that the Order of the Administrative Law Judge, issued June 8, 1972, reinstating applicant, Franklin Phillips, to employment and awarding other damages, IS REVERSED and the application IS DENIED. C. E. ROGERS, JR., Chairman. February 7, 1973 APPEALS OF CEN-VI-RO OF TEXAS, INC. IBCA-718-5-68 IBCA-755-12-68 Decided February 7, 1973 Appeals Under Contract No. 14-06- Canadian River Project Texas. Sustained in Part-Dismissed in Part. Contracts: Construction and Operation: Actions of Parties Contracts: Construction and Operation: Changes and Extras-Contracts: Construction and Operation: General Rules of Construction 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: Construction and Operation: General Rules of Construction 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 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. 2 497-456-73- -1 |