Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990)

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Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: January 12, 1990
CASE NO. 89-STA-9

IN THE MATTER OF

BILL J. SELF,
COMPLAINANT,

CAROLINA FREIGHT CARRIERS CORPORATION,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the Recommended Decision and Order (R.D. and O.) issued September 15, 1989, by Administrative Law Judge (ALJ) Michael P. Lesniak in the captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 2305 (1982).

Complainant contends that Respondent engaged in unlawful discrimination under STAA Section 2305 by issuing him two disciplinary warning letters for refusing to drive commercial motor vehicles when ill and fatigued. The ALJ agreed with the Complainant to the extent that one of the two letters was issued in violation of the STAA. Respondent argues that it acted legitimately under the terms of its labor-management collective bargaining agreement and grievance arbitration process, that the ALJ's reading of the applicable Department of Transportation regulation is unduly expansive, and that that reading imposes an unworkable competitive restriction on the trucking industry.

Upon examination of the record in its entirety,¹ I agree that Complainant was subject to unlawful discrimination. I find that the majority of the ALJ's factual findings are supported by substantial evidence on the record as a whole and thus are conclusive. 29 C.F.R. § 1978.109(c)(3) (1988). I also agree with his ultimate legal conclusions subject to the qualifications set forth herein.

STAA Section 2305 prohibits discrimination against an employee because he has refused to operate a commercial motor vehicle in violation of "Federal

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rules, regulations, standards, or orders applicable to commercial motor vehicle safety and health . . . ." 49 U.S.C. app. § 2305(b). It similarly prohibits discrimination for refusal to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of

such equipment."² Under the relevant portion of 49 C.F.R.392.3 (1988),

[n]o driver shall operate a motor vehicle, and a motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate a motor vehicle.

Complainant Bill J. Self has been employed by Respondent Carolina Freight Carriers Corporation since early 1971 as a driver of commercial motor vehicles. During the period germane to this complaint, he worked as one of between four and six "pickup and delivery" or "P & D" drivers within a specified radius of Respondent's Cherryville, North Carolina, operations. Hearing Transcript (T.) 95; Exhs. E-1, E-2, E-3. These drivers are subject to irregular assignment. Respondent also employs "long line" drivers who work regular schedules. T. 75-76. Complainant's complaint centers on certain consequences of Respondent's "call in" system for the unassigned P & D drivers. After being off duty for between eight and ten consecutive hours, a driver again becomes available for assignment. T. 39-40. Upon being telephoned by Respondent's dispatch, the driver must report for work within a two-hour period. Once available, a driver is subject, for a period of unlimited duration, to being called into work and is not permitted to decline an assignment without being reprimanded. As a result, an "available" driver may spend an entire day awaiting assignment and, if called in during the evening, is expected "to drive all night." T. 41.³

Complainant encountered this situation on a number of occasions. On Sunday, October 16, 1988, Complainant remained on call for a period of 20.50 hours, between 12:01 a.m. and 8:26 p.m., before beginning assigned pickups and deliveries. As he did not expect to be called in early Sunday morning, he slept between midnight and 7:00 a.m., meaning that he had been awake 13.50 hours before beginning his shift, and 20. 75 hours by the time that he clocked off at 4:47 a.m. on Monday, October 17. Complainant drove 7.25 hours before clocking off due to fatigue after declining a further pickup and delivery assignment which would have required him to drive an additional four to five hours. T. 32-36.

Complainant then remained off duty for ten hours before being recalled Monday afternoon. He drove for a period of 7.75 hours before becoming fatigued. At 1:00 a.m. on Tuesday, October 18 Complainant clocked off, instead of following the dispatcher's direction to make another trip. Had he continued, he would not have completed the assignment until between 6:00 a.m. and 9:00 a.m. T. 37-39.

Complainant slept from approximately 2:30 a.m. or 3:00 a.m. until 8:00 a.m. or 9:00 a.m. on Tuesday morning. Available beginning at 11:00 a.m. on Tuesday, October 18, Complainant received a 9:54 p.m. telephone call to report for work in two hours.⁴ T. 39-40. By that time Complainant had remained awake for approximately 12 hours awaiting assignment. Accepting the "call

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in" would have meant driving from midnight until 10:00 a.m. or 11:00 a.m. on Wednesday, October 19. T. 40-42. Complainant advised the dispatcher that he would not report "because [he] had been up all day expecting to go to work and [he] could not stay up all day and drive all night . . . ." T. 40-41. Respondent issued Complainant a written warning. It read:

In reviewing your work schedule this week, 10/16/88 until 10/18/88, you have not met an eight hour work day. On 10/16/88 you only performed 7 1/4 hours work and on 10/17/88 only 7 3/4 hours. Both days you informed the dispatcher on duty that you were sleepy and went home. On 10/18/88 at 9:54 p.m. you were called for work and you called back informing the dispatcher you were unable to work due to "no sleep."

Bill consider this a warning letter for failure to be available for a work assignment on 10/18/88 which is an unexcused [sic] absence.

Exh. CX-2.

Thereafter, on December 13, 1988, Complainant was called in to begin work after having been on call all day. T. 50-51. He reported at between 4:00 p.m. and 5:00 p.m. and worked 2.75 hours before becoming ill. Respondent issued him a warning letter. Dated December 15, 1988, it stated in part: "Once again I bring to your attention your attendance record. As you know, you received a warning letter dated 10/19/88 for an unexcused absence occurring on 10/18/88. . . . Again on 12/13/88 you performed 2 3/4 hours work and went home sick making yourself available on 12/14/88." Exh. CX-3. Respondent also cited Complainant for a separate incident regarding unworked hours which apparently resulted from a misunderstanding between two supervisors and which was not due to his fatigue or illness. T. 45-50. The December 15 letter concluded: "[T]his is a warning letter for excessive absenteeism and to advise you as receipt [sic] of this letter you are hereby required to submit a written doctor's excuse for any absences and/or leaving work early after this date . . . . Further reoccurrence will result in more severe disciplinary action." Exh. CX-3 (emphasis in original).

Receipt of two warning letters for the same infraction within a nine-month period may result in a one-week suspension without pay. Receipt of a third warning letter may result in discharge. T. 13, 16, 57-58.

The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar. Inc., No. 86-STA-S, Final Decision and Order issued July 9, 1986, slip op. at 10-11.⁵ In order to establish a prima facie case, a complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that his employer was aware of his protected activity when it took the adverse action. After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason.⁶ The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

The ALJ concluded that Respondent unlawfully discriminated against

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Complainant by issuing him the October 19 warning letter. I agree. On each occasion cited in the letter, Complainant refused either to continue or to begin a driving assignment because fatigue impaired his alertness and ability to operate his vehicle safely. Complainant testified that on each occasion he felt fatigued or "unsafe" and that he communicated this reason to the dispatcher as the basis for declining the assignment. T. 33-42.⁷ Complainant's uncontradicted testimony as to the number of hours that he had been awake and on call awaiting assignment renders credible his assertions that he was fatigued.

The ALJ analyzed these facts exclusively as a refusal to operate a vehicle in violation of 49 C.F.R. § 392.3 under the "when" clause of STAA Section 2305(b), thus necessitating construction of that DOT regulation. I note that under these facts protection also extends under the "because" clause of subsection (b). See supra at 2-3 and n.2. I previously have held that the "unsafe condition of [the] equipment", giving rise to an employee's reasonable apprehension, includes conditions which make operation of a commercial motor vehicle on the road a safety hazard, e.g., inclement weather conditions, an improperly balanced load. Robinson v. Duff Truck Line. Inc., No. 86-STA-3, Final Decision and Order issued March 6, 1987, slip op. at 18-20 and n.11, aff'd sub nom. Duff Truck Line. Inc. v. Brock, No. 873324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals file) (affirmance on basis of "when" clause, "because" clause issue not reached). The physical condition of a driver that could affect safe operation of the equipment also would come within this classification.

In interpreting regulatory section 392.3, the ALJ concluded that to show its violation a complainant must prove that the respondent "knowingly and willfully required him to operate a motor vehicle" when his fatigued condition would have rendered operation unsafe. R.D. and O. at 10. I disagree that a complainant must prove knowing and willful conduct by the respondent, whether as a standard of proof or as a necessary element of complainant's case.

In a decision in response to a court order requesting assistance and input, the Associate Administrator for Safety, U.S. Department of Transportation, Federal HighwayAdministration, construed regulatory section 392.3 as requiring proof beyond a reasonable doubt of a "person's" knowing and willful violation.⁸ The Associate Administrator reasoned that this standard applied because he viewed the regulation as subject to prosecution only in a criminal proceeding under the statutory provision for general criminal penalties, 49 U.S.C. § 11914(b) (Supp. V 1987). That subsection provides, inter alla, that "a person that knowingly and willfully violates" a regulation is subject to a monetary fine. Presumably, a person could "violate" a regulation, but would not be subject to fine unless the violation was knowing and willful.

Whether the Associate Administrator is correct or not, Federal rules, regulations, standards, and orders assume a somewhat different role under STAA Section 2305. Neither criminal nor civil penalties are involved here. Rather, Section 2305 seeks to prevent employees from being coerced into operating vehicles when it would result in violation or from

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suffering employment discrimination as the result of their refusal to act illegally. The plain terms of STAA Section 2305(b) prohibit employment discrimination for refusing to operate a vehicle when operation constitutes a violation of any Federal commercial motor vehicle safety rule, regulation, standard, or order. Motor carriers and their drivers are charged with complying with the "rules" under Part 392. 49 C.F.R. § 392.1. Regulatory section 392.3 expressly restricts both drivers and motor carriers. A fatigued driver may not operate a motor vehicle, and a carrier may not require or permit a fatigued driver to do so. Failure to observe these restrictions would result in their violation as that term is commonly understood. I agree with the Assistant Secretary for occupational Safety and Health, Response at 4 and n.5, that the proper test under the remedial STAA employee protection provision is "preponderance of the evidence." Neither statutory Section 2305 nor regulatory section 392.3 contains a "knowing" or "willful" requirement, and a "proof beyond a reasonable doubt" standard should not be inferred. Accordingly, while I do not adopt the ALJ's knowing and willful criterion, I nonetheless find, as discussed at 8-9 supra, that Respondent's issuance of the October 19 warning letter constituted a violation of STAA Section 2305.

While holding that Respondent unlawfully issued the October 19 warning letter, the ALJ viewed the December 15 letter as "vague," finding that Complainant "had failed to show with specificity that the warning letter violate[d] 49 U.S.C. § 2[3]05(b). n R.D. and O. at 10. I do not concur completely in the ALJ's assessment. The December 15 letter began by citing Complainant to the unlawful October 19 warning for "unexcused absence." It then recounted an abbreviated workday on December 10 and belated availability on December 12 which Resulted from a supervisory misunderstanding and which were not safety-related. Finally, it stated that Complainant worked only two and three-quarter hours on December 13 before departing work due to illness.⁹ The letter concluded by suggesting that, based on the referenced incidents, Complainant was being cited for "excessive absenteeism" and was advised that he would be subject to "more severe disciplinary action" unless he submitted a written doctor's excuse for any future absences or early departures.

The December 15 citation for excessive absenteeism and warning regarding escalated discipline thus rests on three grounds. Clearly, its reliance on the unlawful October 19 warning is impermissible. See supra at 11. Its reliance on the events of the December 10 weekend, albeit perhaps erroneous, may have been nondiscriminatory.¹⁰ The December 13 incident presents a close question. The record establishes that Complainant had been awake and on call during the day, was called in late in the afternoon, and after making a short trip declined further driving assignments due to a "terrible" headache which he believed would interfere with safe vehicle operation. Although Complainant's testimony is not fully descriptive, I note that severe headaches can be debilitating, Emith v. Califano, 637 F.2d 968, 972 (3rd Cir. 1981), citing Yawitz v. Weinberger, 498 F.2d 956 (8th Cir. 1974), and that Complainant may have experienced considerable pain since he felt that it would be unsafe for him to continue driving. The record also establishes that Complainant communicated to Respondent's dispatcher the reason for his early departure,

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evidence of a good faith belief in a hazard. Simpson v. Federal Mine Safety and Health Review Commission, 842 F.2d 453, 459 (D.C. Cir. 1988).

Testimony of subjective pain is entitled to significant weight. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3rd Cir.1979). See Dorf v. Bowen, 794 F.2d 896, 901-902 (3rd Cir. 1986). Complainant's testimony regarding his condition is uncontradicted in the record. There is no evidence showing that Complainant was untruthful in his testimony. He has worked as a driver for Respondent for 18 years and apparently has a satisfactory work record, indicating a motivation to work. I conclude that with the possible exception of the December 10 incident, the activities addressed by the December 15 warning letter were protected under the STAA.

Both the October 19 and December 15 letters, which served to progress Complainant toward suspension and discharge, adversely affected him for at least the nine-month period following their issuance. Respondent does not dispute that it knew about Complainant's protected activity when it issued the warnings. Accordingly, Complainant has established a prima facie case of unlawful discrimination, and Respondent has failed to rebut that case by articulating a legally sufficient explanation for its actions. Respondent does not argue, and the collective bargaining agreement belies any suggestion, that the December 10 incident in itself would have supported a citation for excessive absenteeism. See Articles 45 and 46, Carolina Freight Council, City Cartage Supplemental Agreement.

In responding to the Assistant Secretary's statement, Respondent states that as the result of an intervening contract interpretation, the December 15 letter "cannot now be considered a disciplinary warning under Article 45, and simultaneously, a[n] Article 46 habitual absenteeism letter", that "a review of that letter indicates that it is clearly the latter", and that "[i]ts denomination as a warning letter is now unquestionably of no effect for immediate disciplinary purposes . . . ." Respondent's Response (Resp.) at 8. Although not entirely clear, the argument apparently is that issuance of the December 15 letter does not now constitute adverse action. After examining the content of Articles 45 and 46, I am not persuaded that no adverse consequences flow from being cited as a habitual offender. Article 46 provides that an employer "may" require an employee to furnish a doctor's certificate and release (1) if an employee is "habitually absent for alleged illness" and (2) if an employee is absent seven consecutive calendar days or more allegedly as the result of illness. Moreover,

[a]fter the determination has been made that an employee is a habitual offender (absenteeism) and given written notice, the employee's record will be monitored in addition to the requirement for doctor's releases to be furnished. If no improvement is recognized and excessive absenteeism continues, Company will have the right to take appropriate disciplinary action . . . .

Finally, "[t]ime limits as provided under Article 45 must be followed in considering the employee's record, discipline, and removing habitual offender's letters." Article 45, captioned "Discharge, Suspension or Other Disciplinary Action, sets forth procedures for implementing and protesting these actions. While even if, as Respondent maintains, the December 15 letter may not now represent "discipline" under Article 45, that is not dispositive of whether it constitutes adverse action. STAA Section 2305 expressly

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prohibits employment actions other than "discharge" and "discipline." The prohibition also extends to any manner of discrimination with respect to an employee's compensation, terms, conditions or privileges of employment. The Article 46 status of "habitual offender," which renders an employee subject to monitoring, responsible for furnishing doctors' releases, and specifically vulnerable to discipline, clearly constitutes a condition of Complainant's employment. Since this condition was imposed as the result of activity which is protected under STAA Section 2305(b), I find that it violated that section's prohibition that "[n]o person shall . . . in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment . . .."

Finally, Respondent asserts that in issuing the warnings to Complainant it was motivated by and acted legitimately under its collective bargaining agreement. It submits that the bargaining machinery should be permitted to function as intended by the parties to the agreement, with arbitration rather than an STAA proceeding being the preferable forum. Respondent's Brief (Br.) at 5-8; Respondent's Response (Resp.) at 4-11. In pursuing claims under the collective bargaining agreement and the employee protection provision of the STAA, complainants seek to vindicate and to assert independent rights--contractual on the one hand and statutory on the other. Cf. Consolidation Coal Co. v. Marshall, 663 F.2d 1211, 1218-1219 (3rd Cir. 1981), citing Barrentine v. Arkansas-Best Freight Systems. Inc., 450 U.S. 728 (1981) and ALexander v. Gardner-Denver Co., 415 U.S. 36 (1974). While, as Respondent suggests, the aim of a collective bargaining agreement may be to promote occupational peace and, at least from management's perspective, to prevent employees from taking undue advantage of employers, Resp. at 6-7, the congressional purpose in enacting the STAA is discrete. Congress determined

that noncompliance with applicable state and federal safety regulations in the transportation industry is sufficiently widespread to warrant enactment of specific protective legislation encouraging employees to report violations. "Random inspections by Federal and State law enforcement officials in various parts of the country [had] uniformly found widespread violation of safety regulations," and [Section 2305] was designed to assist in combating the "increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents."

Brock v. Roadway Express. Inc., 481 U.S. 252, 262 (1987), citing remarks of Sen. Danforth and summary of proposed statute. While the collective bargaining agreement may have been "painstakingly written through decades of negotiations of succeeding contracts", Br. at 8, statutory section 2305 "reflects a careful balancing of the relative interests of the Government, employee, and employer." Brock v. Roadway Express. Inc., 481 U.S. at 259. In this circumstance, a complainant is not required to elect a remedy despite a possible commonality of factual setting.¹¹ I reject Respondent's suggestion that the collective bargaining forum in any manner preempts Complainant's STAA claims or that it is a more appropriate forum for their resolution.

In issuing Complainant the letters of October 19 and December 15, 1988, Respondent violated STAA Section 2305(b). Under statutory section 2305(c)(2)(B), a

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finding of violation requires me to order the violator "to take affirmative action to abate the violation, [and] to reinstate the complainant to the complainant's former position together with the compensation (including back pay), terms, conditions, and privileges of the complainant's employment, and . . . compensatory damages." Additionally, costs and expenses, including attorney's fees, may be assessed against a violator.

Accordingly, Respondent IS ORDERED to expunge from its personnel files the warning letter of October 19, 1988, and to modify the letter of December 15, 1988, to delete any references to Complainant's absences on October 18 and December 13, 1988. Respondent IS ORDERED to compensate Complainant for any lost wages, terms, conditions, and privileges of employment arising from this proceeding and for any costs and expenses reasonably incurred in filing and pursuing his complaint. .

SO ORDERED.

Elizabeth Dole
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹After investigation of Complainant's complaint, the Assistant Secretary for Occupational Safety and Health determined that Respondent had not violated STAA Section 2305. ALJ Exh. 1. Complainant objected to the findings, and a hearing was held on June 29, 1989. At the conclusion of the hearing, Complainant, who appeared pro se, presented oral argument on his behalf and thereafter filed a written summary of argument. Respondent was represented by counsel who filed a post-hearing brief. After issuance of the ALJ's R.D. and O., Respondent filed a brief before me. In response to my request, the Solicitor of Labor stated the position of the Assistant Secretary on certain issues in the case, and Respondent filed a reply to the Solicitor's statement.

²Protection under this second facet is conditioned on meeting two additional criteria: (1) "[t]he unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition", and (2) "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition." 49 U.S.C. app. § 2305(b).

³Other drivers, including witness

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Scott Hensley, experienced difficulty with Respondent's system. See T. 6-7, 11-14, 22-25, 115. Mr. Hensley testified:

When I get off work, I'm allowed to be off ten hours. At the end of ten hours, I go on the line-up, that is to say that at that point in time, I am available for work and they can call me but many times they don't call me until ten or twelve hours later or even more, after I've been up all day and then I go to work and I wind up having to work anywhere from eight to fourteen hours at a time which, at that point, I would be without sleep for 28 hours driving this truck down the road.

T. 13-14.

⁴As the ALJ noted, R.D. and O. at 4-5, when Complainant called the dispatcher at 9:00 a.m., 11:00 a.m., and 2:00 p.m. on October 18, he was assured repeatedly that a work assignment was imminent. Complainant testified:

When I got up that day, I called the dispatcher . . . and he said I was in second place. That means I am number two man to go, that I have to be ready because he could use me at any minute. I called him back around 11:00 and he said, "Bill, you're in first place. It won't be long." I called him back at 2:00 . . . right after lunch . . . and he said he had to make a few phone calls. It wouldn't be long. So I stayed up all day thinking I would go to work.

T. 40.

⁵These burdens derive from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). See Roadway Exp.. Inc. v. Brock, 830 F.2d 179, 181 n.6 (llth Cir. 1987).

⁶The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. "The explanation provided must be legally sufficient to justify a judgment for the [employer].. Id. at 255.

⁷Following receipt of the October 19 letter, Complainant complained to the supervisor of the line haul manager who had issued the letter. Complainant testified:

I went to see Mr. Zello[,] Mr. McKinney's supervisor[,] and talked to him about this letter because I felt deeply about being harassed and trying to do the job safely as I'm compelled to do under DOT and I solved nothing. He told me that I'd better watch my work record.

T. 44.

⁸That decision was captioned

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In the Matter of Gaibis and Werner Continental (Hall's Motor Transit Company), No. 81-65C, issued March 29, 1982, and was requested for use by the court in Gaibis v. Werner Continental, Inc., 565 F. Supp. 1538 (W.D. Pa. 1983), vacated on Jurisdictional grounds sub nom. Vosch v. Werner Continental. Inc., 734 F.2d 149 (3rd Cir. 1984) (complaint did not state a cause of action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976)).

⁹Complainant testified:

I came in late in the afternoon after being on call all day and calling the dispatcher and him telling me it would be an hour, an hour, an hour, you know. He got me late in the afternoon and I worked two and three quarter hours. I went out and run one trip, went to a customer and picked up freight and when I came back in, I had a terrible headache and I went in and I told the dispatcher that I was going home sick because I felt that I was unsafe to go back out.

T. 50-51.

¹⁰Although Complainant has not alleged that this ground was pretextual, the record suggests that possibility, i.e., that Respondent truly was motivated by Complainant's refusals to drive while fatigued and that it seized upon the December 10 weekend to bolster its case for progressive discipline. The primary incongruity with the supervisory misunderstanding is that Ted McKinney, Respondent's line haul manager who issued the December 15 letter, was not authorized to discipline Complainant, if, as Complainant testified, his supervisor, Reed Huss who was in charge of the P & D drivers, had approved the altered work schedule. See R.D. and O. at 6, 7; T. 106-108.

¹¹The decision in Consolidation Coal Co. discusses this situation. There, the standards of gravity of injury justifying work refusals in the wage agreement and in the employee protection provision of the statute, the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-962 (1988), were different. The wage agreement required the arbitrator to determine whether the hazard was abnormal and whether there was imminent danger likely to cause death or serious physical harm. In contrast the Mine Act was concerned not only with the hazard posed by the condition, but with the policy of anti-retaliation against miners. The latter being an overriding concern of the Act, the standard of proof was merely that the miner reasonably believe that [s]he confronted a threat to safety or health. "Those who honestly believe that they are encountering a danger . . . are thereby assured protection from retaliation . . . even if the evidence ultimately shows that the conditions were not as serious or as hazardous as believed." Consolidation Coal Co. v. Marshall, 663 F.2d at 1219.