Federal Mine Safety and Health Review Commission

On October 31, 2012, Ratliff executed a Summary of Discriminatory Action, filed with his Discrimination Complaint of the same date. In this statement he alleged that he was fired on October 17, 2012. The series of events leading to his termination began on Saturday, October 16, 2012 when the ventilation off of E Panel was changed by modifying stoppings and moving the scoop charger.^{^[3]} On Monday, October 8, the day-shift did not produce because a federal inspector was on section 11 North. The next morning, day-shift dispatcher Kevin Hutchinson was giving the safety talk and an electrician from 11 North said that it was bad that management could not get ventilation to the face all shift. Hutchinson began to yell at the group and Ratliff told him to stop. Ratliff further stated that conditions on 11 Right had gotten worse in the past six weeks, that every cut was cut through, that cut were being made into intake air, and that there was no cut cycle. Ratliff worked the rest of the week, including Saturday, and wrote 10 “Running Right” cards for those five shifts and put them in the appropriate box on Monday, October 15.^{^[4]} On that same day at around 4:50 p.m., Otto Bryant went into the bathhouse and walked over to Ratliff’s basket. Ratliff was standing with other employees and Bryant asked twice why Ratliff had not helped jack on the mantrip. Ratliff said that he did not know anything about it and said some “curse words.” He worked the next day, but on October 17, 2012 while in the safety meeting he was told in front of everyone to go into the office. He went into the office with his Mine Rep. and was told he was going to be discharged after the decision was approved by Alpha. At approximately 11:15 a.m. he was terminated. (GX-1)

Submitted with the application was the December 12, 2012 Declaration of James Newman, a Special Investigator employed by the Mine Safety and Health Administration. Mr. Newman stated that he had investigated Ratliff’s discrimination claim against Respondent. He had determined the following:

c. On October 9, 2012, Ratliff attended a safety meeting. During the meeting, Ratliff reported that the mine was not following a cut cycle and was cutting into the intake air. On October 15, 2012, Ratliff deposited ten “running right” cards regarding safety concerns in a box kept at the mine. The cards are reviewed by mine management and sent to the Cobra Natural Resources, LLC corporate offices.

d. Ratliff was terminated on October 17, 2012 for alleged insubordination and complaints from co-workers about his attitude and work performance. Ratliff has one written warning of insubordination to a supervisor (October 4, 2011), a documented verbal altercation incident with a co-worker (September 22, 2012), and two documented incidents of being disoriented on the job (June 2011, November 2011). These complaints about Ratliff’s work habits are in his personnel file, but no other action was taken by Respondent until Ratliff made safety complaints on October 12 and October 15, 2012. Ratliff claims that management at Cobra Natural Resources, LLC terminated him because he made safety complaints.

Id. The Special Investigator concluded that the discrimination complaint was not frivolously brought. Id.

The Respondent disputes Ratliff’s claim that he spoke at the safety meeting and also denies anyone was aware that he had submitted “Running Right” cards or their contents. Furthermore, Respondent claims that even if Ratliff had not been fired on October 17, he was slated to be laid off on January 15, 2013, with benefits ceasing at the end of January. His lay off was determined based on an objective evaluation of employee performance conducted by Cobra management. His poor evaluation was based on his reputation for insubordination and his tendency to have conflicts with co-workers. The evaluation was conducted seven months before Ratliff’s alleged protected activity.

Exhibits

The Secretary submitted two exhibits into the record at the hearing and they were duly admitted into evidence. (TR 46). GX-1 is the Discrimination Complaint filed by Ratliff on October 31, 2012. GX-2 are “Running Right” cards that were turned in to the Respondent around the time of Ratliff’s discharge.

Respondent likewise entered eight exhibits into the record at the hearing and they were duly admitted into evidence. (TR 113). RX-A is an employee evaluation form prepared by Respondent in participation of lay offs. RX-B is a chart produced by Respondent containing the performance scores given to each employee. RX-C is an employment information chart. RX-D is a letter signed by Matras and dated November 16, 2012 explaining that there will be a reduction in force. RX-E is a notice regarding wages and work schedules for laid off employees. RX-F is a Health, Welfare and Retirement FAQ for employees terminated on January 25, 2013. RX-G is an e-mail from McClure scheduling a meeting to explain an hourly evaluation tool. RX-H is an employee chart showing miners affected by the lay off.

Testimony of Russell Ratliff

a. Direct Examination

Ratliff began at Cobra on June 8, 2008 at the Cobra mine in Wharncliffe, West Virgina. Tr. 9. He started as a miner operator and worked as a scoop operator and shuttle car operator. Tr. 10. He is certified to operate any piece of equipment underground. Tr. 10. He has also operated bridges, worked on long haul sections, managed and maintained belts, and operated loaders and forklifts outside. Tr. 11, 12. Ratliff began in the mines at 19 years of age at Scotch Ranch mines and worked there for 10 years. Tr. 11. He then worked at another operator before working as an equipment operator at IO Creek Mine from 1989-91. Tr. 11. He received Kentucky bossing papers and worked as a section foreman for a year and then acted as superintendent until 2003. Tr. 11. Bossing papers mean you are certified and responsible for people working beneath you. Tr. 12. Getting West Virginia paper would require passing a 50-question test offered once a week. Tr. 12.

Ratliff was fired on October 17. Tr. 13. On that day, he was in a safety meeting and the mine foreman, Jeff Jackson, called him into his office. Tr. 13. Ratliff learned there would be a meeting in the superintendent’s office and was told to get the the on-site mine representative, Roosevelt Payne. Tr. 13. The fact that Payne was coming meant that they wanted a witness beyond Ratliff to know what was said. Tr. 14. At the meeting Wayne Cooper of Human Resources asked Ratliff about an incident that occurred two days earlier. Tr. 14. Ratliff explained his side of the story, but Cooper said he wanted to know if Ratliff cussed and said that he was going to be terminated over it. Tr. 14.

Following the UBB disaster, there has been a safety meeting at the beginning of every shift. Tr. 15. On October 9, the safety meeting was conducted by dispatcher Kevin Hutchinson. Tr. 16. There were about 34 people at the meeting. Tr. 17. At the meeting, Hutchinson was yelling about Respondent’s position and an electrician named Tubby Lewis said it looked bad for the mine to be down the day before for an entire production shift with an inspector present. Tr. 16. Lewis explained that in the last six weeks there had been a change in bosses on the shifts and that the entire day they had worked on the section with no air ventilation because the new bosses were not watching. Tr. 17, 18. Ratliff spoke up and said that the situation was worse in the last six weeks since the change. Tr. 18. After this comment Hutchinson began to yell and Ratliff went further to say that in those six weeks more than 90 percent of the cuts were into intake air. Tr. 18. Also, Ratliff said that the foreman’s direction of the cut cycle was getting worse. Tr. 18. The cut cycle is the plan for the cut the miner is going to make as you advance the face. Tr. 19. Respondent was not following the cut cycle and that was the substance of what Ratliff was saying at the safety meeting. Tr. 19, 20. Ratliff was concerned about his health and the health of others because the way they were cutting meant the miners were breathing in lots of dust and this could lead to black lung or silicosis and death. Tr. 20, 21. This would most likely be silicosis because the mine produces about 20% coal and 80% slate mixed with sandstone. Tr. 21.

However, after the safety meeting nothing was changed with respect to how the cut cycle was followed. Tr. 21. Ratliff worked for the rest of the week (four or five days). Tr. 21. In that time he filled out the “Running Right” cards (GX-2) that Cobra encouraged miners to fill out when they have a complaint and turned them in on Monday, October 15. Tr. 21, 22. The idea behind the cards was to cut down on accidents. Tr. 22, 23. There is a once-a-month meeting held in the section safety room to discuss the cards and then they are sent to the corporate office. Tr. 23. Ratliff marked the cards that he filled out with a green “X.” Tr. 24. The second one over from the top was marked by Ratliff and states “start of shift” and “11 right, first shift, number 6 right had not been dusted or cleaned for two cuts.” Tr. 24. There is an “RR” marked on the card but that was added later. Tr. 24, 25. The card is marked “workplace examination” because the mine is supposed to dust after each cut to protect health and safety. Tr. 25, 26. This car was filled out on October 11 but not submitted until the 15^th. Tr. 26.

The next card is on the bottom of the page and dated 10/11 but also turned in on the 15^th. Tr. 26, 27. It states “11 right, first shift, 405 miner putting out water on scrubber” and this is an at-risk behavior in a workplace examination. Tr. 26, 27. A scrubber is not supposed to throw water, when it does it means that something is not right and it can cause the shuttle car to get wet and affect ventilation. Tr. 27. It can also cause water and dust inhalation. Tr. 27.

The next card is the sixth one on the page and dated 10/11. Tr. 28. It states, “first shift. No flood dusting on third shift. Today is Thursday and section hasn’t been flood dusted all week.” Tr. 28. “Flood dusting” is when you take around three tons of rock dust and sling it using the scoop to coat the entire area and it is supposed to be done every third shift. Tr. 28, 29. Failure to do so could result in dust in the lungs or an explosions. Tr. 29.

The next card is the fifth one and it dated 10/16. Tr. 29, 30. It states “no flood dusting on third shift.” Tr. 29. This is the same concern as the last card and in the same area. Tr. 30.

The next card is the fourth one on the third page and dated 10/17. Tr. 30, 31. It states, “11 right. No bulk or rock dust put where power center was moved to.” Tr. 31. Whenever a charging station or transformer is moved, a full bulk of dust should be placed prior to the power center being sealed to prevent explosions. Tr. 31. This one has a circle and a question mark around 11 RT but this was added before Ratliff received the card and was not added by MSHA. Tr. 31, 32. The “RR” was also added later. Tr. 31.

The next card is the last one on page three and dated 10/17. Tr. 32. It states, “405 first shift”—“405 miner putting water out of scrubber.” Tr. 32. This is the same concern as described on the card from 10/11. Tr. 32.

The next card is the third one from the top of page 4. Tr. 32. It states, “No flood dusting on third shift.” And is the same concern as the two previous cards. Tr. 33. The “RR” and 11 RT circle and question mark were added at a different time. Tr. 33. The last three cards here were dated on 10/17, the same date that he was fired. Tr. 33. He was fired at the beginning of the shift, after he put these last cards in the box. Tr. 34.

Ratliff submitted other cards but they were not included here. Tr. 33. He submitted 10 cards on the 15^th. Tr. 34. He remembers some of them, two were about cutting through to intake air and one was about how the miner had cut three cuts without being cleaned. Tr. 34. The missing cards were serious; the last (d) order the mine received was given because an area was not scooped and cleaned within 80 feet of the face (a condition also described in a missing card). Tr. 34, 35.

The “Running Right” cards do not have Ratliff’s name on them but they were dated and Ratliff believes he could be identified by the information on the card. Tr. 35. He could be identified by his handwriting; Respondent has samples of Ratliff’s handwriting because he often had to write down information and sign his name, including at the daily safety talks. Tr. 35, 36. Additionally, Ratliff put the name of his section on the cards and therefore only the 10 people on that shift could see these conditions. Tr. 36.

On Monday the 15^th Ratliff was involved in an altercation with an assistant mine foreman in the bathhouse about twenty minutes after his shift. Tr. 39. The foreman, Otto, asked why Ratliff had not helped jack on the man trip. Tr. 39. Ratliff had no answer because there was no jacking that day. Tr. 39. Otto got red in the face and asked again. Tr. 39. Ratliff does not remember everything said, but he knows that he said that there was no reason for Otto to be in there and that he said some “cuss words.” Tr. 40. The miners changed and shower in the bathhouse and they “cut up” but the foreman rarely goes in. Tr. 40. Ratliff was not wearing clothes when the foreman spoke to him. Tr. 40. Other rank and file employees were present. Tr. 41.

Ratliff is a rank and file employee and when management has an issue with a rank and file employee the proper procedure is for the foreman to take the employee aside and discuss the matter respectfully. Tr. 41, 42. Ratliff learned about this procedure from meetings Respondent held to go over work rules. Tr. 42. Ratliff does not believe the foreman followed the protocol because he yelled in front of other employees. Tr. 42. Ratliff admits to cussing. Tr. 42.

The mine is still operating and there is still a shuttle car on the first shift. Tr. 43. The mine is not idle and three shifts are still running. Tr. 43. Ratliff has been following lay-offs at the mine by talking to people who still have their jobs and he learned that other people who were laid off immediately got jobs at other mines owned by Alpha (the company that owns Cobra). Tr. 43, 44. In Ratliff’s opinion, the people that did not speak up at Cobra still have their jobs. Tr. 46. Ratliff also believes that the lay-offs were done incorrectly because they did not consider seniority and also kept on family members of management. Tr. 46, 47.

GX-1 is Ratliff’s discrimination form and aside from a date being wrong, the narrative is true and correct and he signed the document after reading it. Tr. 45. The wrong date is at the top and should say 6^th instead of 16^th. Tr. 45. There is only one wrong date. Tr. 45.

b. Cross Examination

The plans Ratliff discussed were the section plans submitted to MSHA and the state. Tr. 48. Ratliff does not know the dates of those plans, but they were discussed at the safety meetings and Terry Lambert also explained them. Tr. 48, 49. Lambert never showed the plans, but Ratliff saw the maps and written plans on the wall. Tr. 49. Some of the plans are locked up in the cabinet but Ratliff saw the rock dust plan and others. Tr. 49, 50.

The October 9 safety meeting was held in the corridor where miners sit to go to work, near the lamp room. Tr. 50. The meeting was conducted by Hutchinson with all of the rank and file employees from the two sections. Tr. 50. Some people from management, including Ratliff’s foreman Todd (he does not know his last name) and Phil Alford were at the meeting. Tr. 50, 51. Ratliff does not remember who was near him at the meeting but other miners, Dewey Lusk, Ted, and Kevin heard him make comments about cuts being made into intake air. Tr. 52. However, no one actually said “Russell, I heard you say at the October 9 meeting that cuts were being made in the intake air.” Tr. 52, 53. Ratliff does not know if anyone indicated to Inspector Newman or anyone at MSHA that they heard the comments. Tr. 55.

The comments at the meeting were directed at Hutchinson and Ratliff believes that Hutchinson is a member of management. Tr. 55, 56. He did not receive any response from management and no one said anything about it. Tr. 56. To his knowledge, there was no follow-up on the issue after the safety meeting. Tr. 56. He does not know if anyone said anything to anyone about his comment. Tr. 57. He does not recall if Hutchinson discussed the citations that had been issued the day before during the MSHA inspection. Tr. 57. These safety meetings are held daily and Ratliff went to one every day he worked there. Tr. 57. He often participated in the discussions and this was not the first time he had done so. Tr. 57, 58. The purpose of the safety meeting is for people to voice concerns. Tr. 58.

The “Running Right” cards are distributed by Cobra in a little stack in the lamp room and also by Lambert, the safety manager. Tr. 58. The company encourages employees to fill out these cards and put them in the box. Tr. 58, 59. Ratliff thought this was a good program and that the company wanted employees to fill them out. Tr. 59. He does not know if the cards are used to discuss issues at future safety meetings, but he does know they use the cards. Tr. 59. The cards are filled out anonymously and all of Ratliff’s cards were neither signed nor initialed. Tr. 62. Ratliff put his cards in the box in the lamp room along with everyone else’s card. Tr. 62. Management does not see people put cards in the box and there is no camera to Ratliff’s knowledge. Tr. 62, 63. Respondent would know who wrote the cards only from handwriting, but Ratliff does not know who would be able to tell. Tr. 63. He does not know if anyone compared his handwriting to his signature. Tr. 63.

Ratliff knew that the cards dated October 11 were put in the box on October 15 because he remembers putting them in, but he did not keep a record. Tr. 63, 64. One of the other cards was put in on October 16 and the others were put in before the shift started on October 17. Tr. 64, 65. Ratliff does not know how often the cards are taken out. Tr. 65. No one saw the cards before he put them in the box, he did not discuss them with anyone and no one saw him insert the cards. Tr. 64, 65.

Ratliff often filled out cards, but he cannot estimate the number he has filled out over the years or give a weekly average. Tr. 66. Ratliff did not see the cards run on a television screen in the lamp room but he has seen other employees’ cards. Tr. 66. He participated in two employee involvement groups (for a month each time). Tr. 67. While on those groups he looked at some of the cards and there were dozens of them each month. Tr. 67.

The cuts being made in the intake air were in the middle section, three, four, five, or six. Tr. 59, 60. The situation had gotten worse since management on the second shift had changed approximately six weeks earlier. Tr. 60. Changes in management happen every few months. Tr. 60. Ratliff’s crew was not the only crew cutting into intake air. Tr. 61. Todd was the boss on second shift but it was occurring on other crews as well. Tr. 61. He does not know all the section bosses were on those other crews, but Ronny Estepp was one. Tr. 61.

The date of the altercation with Otto was the 17^th, not the 22^nd or 21^st. Tr. 68. He was not fired on the 24^th, he was fired on the 18^th. Tr. 68. He knows these dates because he made notes, but he does not have the notes with him. Tr. 68, 69. The notes show the 18^th was the last day he worked. Tr. 69. Regardless of the date, he felt the foreman had breached protocol. Tr. 69. Ratliff responded to the breach of protocol by telling Otto to “shut the fuck up” and he said this several times before telling him to “get the fuck out.” Tr. 69, 70. This was also a breach of protocol. Tr. 70. He worked another shift after this before being fired. Tr. 70.

Ratliff was not involved in Cobra’s process for reducing its workforce and does not know the criteria used to determine who would be laid off. Tr. 70.

c. Re-Direct Examination

Some people never speak up at the safety meeting but Ratliff speaks up frequently. Tr. 71. Very few others speak up frequently. Tr. 71. He has a reputation at the mine for being a “hot-head” about safety issues. Tr. 71. Some of the other guys on his crew might also have that reputation. Tr. 71.

Ratliff had a verbal altercation with others prior to the one with Otto and he was not fired for it. Tr. 72. He had seen others have altercations with Otto without being fired. Tr. 72.

d. Re-Cross Examination

Two or three other people had verbal altercations with Otto. Tr. 72. K.J. Phillips even used the same or similar language, a little over two year ago. Tr. 73. He could not think of anyone else at this time. Tr. 73.

Ratliff has a reputation about being particular about safety but he also has a reputation for not getting along with co-workers and for being insubordinate. Tr. 73. He had a reputation for fighting with co-workers and this was not the first time he had cussed at a boss. Tr. 74.

Testimony of Raybon Keith Cook, Jr.

a. Direct Examination

Cook is a manager of human resources at Alpha Natural Resources. Tr. 75, 76. He works in the Brook Run South business unit in Beckley, a unit with 14 companies including Cobra. Tr. 76. His responsibilities include overseeing policies covering employment, compensation, performance, workers’ comp, and medical/disability/retirement benefits. Tr. 76. He also deals with reduction in force issues. Tr. 76.

RX-G is an e-mail dated March 6, 2012 from Bill McClure for a meeting regarding an hourly evaluation tool. Tr. 77. Bill McClure is senior vice president of human resources and was one of Cook’s bosses. Tr. 77. The other recipients of the e-mail are directors of human resources. Tr. 77. Cook was not involved in the earlier reduction of force because Brooks Run south was not involved in that previous lay-off. Tr. 77, 78. The e-mail says, “after the dust settled, it was determined that this process must continue,” meaning the evaluation process, including evaluation of employees at Cobra. Tr. 78.

Cook evaluated all the employees at Cobra including Ratliff. Tr. 78. He also attended one of the information meetings referenced in the e-mail on March 7. Tr. 78. At the meeting they discussed the Excel-based evaluation system and an accompanying form. Tr. 79. Cook understood that the point of the program was to evaluate employees based on running right, job efficiency, and initiative. Tr. 79. These evaluations, if used, would be applied to determine who would be laid off. Tr. 79. Cook did not know when the lay off might occur. Tr. 79.

RX-A is the employee evaluation form Cook received during the conference call in March. Tr. 79, 80. This was used to evaluate employees at Cobra and Cook was directly involved in those evaluations. Tr. 80. Employees were given a score of 1-5 in each category with 1 being satisfactory, 2 needs improvement, 3 met expectations, 4 exceeded expectations, and 5 substantially exceeded expectations. Tr. 80. Under the “running right” category there were four subcategories. Tr. 80, 81. There was also a section for employees with additional skills or certifications like EMT. Tr. 81. These skills counted as one additional point. Tr. 81. Wayne Cooper, the local HR manager familiar with the workforce, and Boon Miller the general manager and former superintendent, also worked on the evaluations. Tr. 81, 82. They made the evaluations and completed them by assigning scores to each employee including Ratliff. Tr. 82, 83. All three had input on each employee and the score was based on combined knowledge. Tr. 83. Positive and negative traits and work history were discussed. Tr. 83. In early 2012, Cobra utilized the services of contract miners at Mountaineer mine, usually between 15 and 30 miners. Tr. 83, 84. They did not evaluate those employees, only Cobra employees. Tr. 84.

RX-B are the evaluations of Cobra employees at the mine. Tr. 85. It has the scores for each category for each employee and the time the score was entered, most being entered on March 23 or 30. Tr. 85. The three evaluators actually met on March 21^st. Tr. 85, 86. Ratliff’s score was posted on March 30 at 10:47 a.m., roughly seven months before the alleged protected activity. Tr. 86. Ratliff is listed as a face operative (an employee who works on the face, usually with equipment, including a shuttle car, scoop, or miner operator) and his score is accurate. Tr. 86, 87. The running right category considered an employee’s safety consciousness, adherence to procedure, attitude, respect for others, ability to work with others, and participation in safety processes (including speaking up on safety). Tr. 87, 88. In that category, Ratliff scored a 12, meaning that he had the second lowest score of the 41 face operatives. Tr. 88. He had the third lowest score of the 106 employees in the mine in March. Tr. 88, 89. These scores were not changed after March 2012. Tr. 89.

Eventually, Cook learned there would be lay offs from business unit president Frank Matras. Tr. 89. Matras told Cook they would be cutting back at Mountaineer mine from two section to one (or six total shifts to three). Tr. 89, 90. Other parts of Cobra, like Blackberry Prep Plant, were also reduced after the same sorts of review as at Mountaineer. Tr. 90, 91. Matras asked Cook, Miller, and Brian Chandler to work on who would be affected and sent the list to legal for review and discrimination testing. Tr. 91. Some employees were sent to other Alpha companies and some were laid off. Tr. 91. Matras and Miller determined the number of employees that needed to be retained and after the deciding they applied the numbers from March. Tr. 92. Seniority and family relationship were not considered. Tr. 92.

RX-D is a letter Cook prepared for Matras’ signature that explained that there was going to be a reduction in force and it was sent to all Cobra employees whether or not they would be laid off. Tr. 92, 93. The reduction in force was effective on November 16, 2012. Tr. 93.

RX-E is the Notice Regarding Wages and Work Schedule and RX-F is Health, Welfare, and Retirement FAQs for Hourly Employees Being Terminated January 15, 2013. Tr. 93. RX-E and F were not sent to all employees, just those being terminated. Tr. 93, 94. RX-E says that employees could work as late as January 15, 2013 or receive pay in lieu of work through that time. Tr. 94. No employees affected worked past the announcement on November 16, 2012. Tr. 94. They simply were paid the normal wage at 40 hours a week. Tr. 94, 95. RX-F states that employees would receive benefits through the end of January. Tr. 95.

RX-G is a summary prepared by Cook of the number of employees at Cobra affected by the layoff. Tr. 95. This documents shows that there were initially 186 non-contract employees at Cobra, that 42 were laid-off and that 140 remained in addition to contractors and four people out on workers comp. Tr. 96. Mountaineer mine maintained 86 active employees, the number targeted by Miller in his evaluation. Tr. 96, 97. There were 14 miners and 16 contract miners affected by the lay off at Mountaineer. Tr. 97. Of those 14, nine transferred to other Alpha companies and five were laid off entirely. Tr. 97.

RX-H is a spreadsheet prepared by Cook that identifies miners affected by the reduction in force. Tr. 97. The five employees listed in red are the employees that did not receive another job. Tr. 97, 98. They were selected for lay-off in March and include three electricians (Spears, Lewis, and Blackburn). Tr. 98. Blackburn received a score lower than Ratliff and the other employee with a lower score, Gooslin, quit before the lay off. Tr. 98. Lewis got the same score as Mr. Ratliff, Spears scored a 34 (four points higher than Ratliff), Jonathan Baranth scored a 31 and Larry Jewell received a 32. Tr. 98, 99. The employees in yellow were those transferred to other Alpha companies and all of those employees scored higher than Ratliff, including the four face operatives. Tr. 99, 100. All of these decisions were made based on the March 2012 evaluations. Tr. 100. If Ratliff had stayed on until November 16, 2012 he would have been laid off, as would Mr. Gooslin. Tr. 100, 101. Because they left earlier, the number of positions that needed to be eliminated was lessened. Tr. 101. If he had stayed he would have been entitled to pay through January 15 and benefits through January 31, but nothing else. Tr. 101.

b. Cross Examination

Five employees were laid off but it would have been six if Ratliff had stayed. Tr. 101, 102. Cook has never worked underground but he knows that a mine is not a delicate work environment. Tr. 102. He is not aware of anyone being fired for using profanity. Tr. 102.

In evaluating employees under RX-A on March 21, Cobra did not use an employment psychologist or other outside people to help. Tr. 102, 103. There were no revisions after March 21 for any reason. Tr. 103. The dates on the spreadsheet were added automatically but Cook did add the date of review, March 21. Tr. 103. People reviewed later were new hires or transfers from other locations. Tr. 103. Cook is not aware of any relatives of management that were laid off entirely. Tr. 104.

Looking at RX-A and the Running Right category, safe behavior counted but no specific points were given for speaking up at safety meetings. Tr. 104. There was just an overall score based on behavior. Tr. 104. Speaking up in a would be safe behavior if the goal was to make the mine safer. Tr. 104, 105. Points were not granted for specific actions; it was a global analysis. Tr. 105. The scores were determined by Cook, Cooper, and Miller and the exact number determined by consensus. Tr. 105. Cook never saw any of the miners work directly and has no personal knowledge of their behavior. Tr. 105. Management provided the information. Tr. 106.

Following the mine plan would constitute following policy and procedure for the purposes of that category, but it is not given a specific point value. Tr. 106. Submitting “Running Right” cards would also be positive, but not give specific points. Tr. 106. Cook was not present to see who followed the mine plan. Tr. 106. Participating in an EIG meeting would be a good example of participation, but would not give specific points. Tr. 106, 107. These evaluators would not say something like “I’m giving two points for attending the EIG meetings.” Tr. 107. With respect to job efficiency, sometimes it is important to go slow to act safely, and that is not necessarily inefficient. Tr. 107, 108. That would not be counted against a miner. Tr. 108. It would depend on the conditions in the mine if working slower was inefficient or if it were safe. Tr. 108. Cook did not talk to the other evaluators to determine how they counted efficiency and safety together. Tr. 110. Under initiative, someone would be given positive scores for trying to solve safety deficiencies at the mine. Tr. 110. Again, he did not discuss how this would be evaluated with the others. Tr. 110. The category that says “doing the right thing” includes treating others with dignity and respect. Tr. 110, 111. Doing the right thing means doing the right thing each day, behaving in a positive manner and trying to create the best work environment for you and your co-workers. Tr. 111. Trying to operate safely is doing the right thing, even if creates a little friction. Tr. 111.

Cook said that the company went from two sections down to one, but the one section was a super section. Tr. 111. This means that the section operates using two miners. Tr. 112.

c. Re-Direct Examination

Of the people on the evaluation team, Cook was the one who did not see the miners daily. Tr. 112. He had less personal knowledge than Cooper or Miller and largely deferred to them on these issues. Tr. 112. But as an HR person he was aware of the performance issues with Ratliff that had arisen before and could weigh in personally. Tr. 112, 113.

d. Re-Cross Examination

Cook was aware of these previous performance issues because he was told, but he had not observed them personally. Tr. 113.

Findings and conclusions

Protected activity

On October 9, 2012 Ratliff spoke out at a daily safety meeting in support of another miner, Jon Lewis. Tr. 16. In combination, Ratliff and Lewis stated that mining was not being conducted in accordance with the cut cycle plan and that Respondent was mining into intake air. Tr. 18. They said the conditions at the mine were embarrassing when the day before a federal inspector was present. Tr. 16. Ratliff stated that the conditions had gotten worse since management had changed on his shift six weeks earlier. Tr. 18. The major concerns related to these conditions were dust inhalation and explosion. He claims that several members of management were present to hear him make these comments. In addition, Ratliff submitted at least 10 “Running Right” cards that described safety conditions at the mine.

Section 105(c)(1) states, in relevant part:

No person shall discharge or in any manner discriminate againstYor otherwise interfere with the exercise of the statutory rights of any minerYin any coal or other mine subject to this chapter because such minerYhas filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator's agentYof an alleged danger or safety or health violation in a coal or other mine.

30 USC ' 815(c)(1).

Respondent argues that Ratliff was not engaged in protected activity because there was no objective evidence that Ratliff spoke at the safety meeting or turned in “Running Right” cards. Ratliff testified that he took those actions but also stated that he could not remember who was standing with him at the meeting, that no one said “I heard you talk about safety at the meeting,” and that he did not share the contents of his cards with anyone. Tr. 52, 53. The fact that Ratliff does not remember who was standing with him at the meeting and no one confirmed they heard him does not mean he did not speak. Similarly, the fact that no one saw Ratliff deposit the cards does not mean it did not happen. But even if this constitutes a conflict in testimony or somehow impeach Ratliff’s credibility, those considerations are beyond the scope of this hearing. CAM Mining, LLC, 31 FMSHRC at 1085. Ratliff presented substantial evidence in the form of testimony that he engaged in protected activity. He also provided documentary evidence by marking the cards he filled out. Therefore, Ratliff’s claim that he was engaged in protected activity is not frivolous. Considering the record as a whole, I find that Ratliff engaged in protected activity both in speaking at the meeting and in submitting “Running Right” cards.

In Sec=y of Labor on behalf of Turner v. National Cement Company of California, the Commission discussed some actions that could be considered animus or hostility to protected activity. 33 FMSHRC 1059 (May 2011). Specifically, the Commission remanded the case because, among other reasons, the ALJ failed to consider Respondent’s animus in ignoring or denigrating an employee’s safety suggestions. Id. at 1069. Also, the judge failed to consider the degree to which an employee’s reputation for being “difficult” may have represented animus to his safety concerns. Id. citing CAM Mining, LLC 31 FMSHRC at 1185-86.

In this case, Ratliff stated that the cut cycle was not being following and that every cut was into intake air. Tr. 18. Despite this complaint, nothing was done to correct the problem the following week. Tr. 21. Ratliff could not speak to what happened after that week because he was terminated. In addition, Ratliff had a reputation at the mine of being “difficult.” Tr. 71. However, he also stated he had a reputation for being a stickler on safety rules to the point that his actions could cause “friction.” Ratliff filled out many “Running Right” cards at Cobra. Tr. 71. He also stated that he was one of very few miners to regularly participate in the safety meetings. Tr. 71. There is substantial evidence suggesting that, to a certain degree, Ratliff’s reputation for being difficult was caused by his insistence on safety matters. This evidence of animus is bolstered by the fact that another employee that participated in the October 9 safety meeting, Jon Lewis, was among the five employees permanently laid off a month later. RX-H. Considering the record as a whole, I find that Respondent had hostility or animus towards Ratliff=s protected activity.

Knowledge of the protected activity

According the Commission, “the Secretary need not prove that the operator has knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090 citing Chicopee Coal Co., 21 FMSHRC at 719. Ratliff spoke about safety issues in this case at the safety meeting. He remembers several members of management including Phil Alford and his foreman Todd. As a foreman, Todd was a representative of the operator. Thus, the Respondent was aware of the safety complaint made on October 9, 2012.

With respect to the “Running Right” cards, Ratliff asserts that he could be identified as the source of the complaints from his handwriting and the fact that the cards reveal detailed information regarding the shift and location where the safety concern was witnessed. Tr. 35, 36. The fact that he had a reputation as someone who often made complaints further pinpointed Ratliff as the source of the cards. Respondent claims that that it would be impossible, given the high volume of cards and the fact that the drop box is not monitored, to determine who deposited the cards. I have reasonable cause to believe Respondent determined that Ratliff was the source of the “Running Right” cards. Respondent had samples of Ratliff’s handwriting and, more importantly, it knew that he complained about the same issues at the earlier safety meeting. Ratliff was known to complain about safety issues and it is a fair inference to draw given all the other factors, Respondent had constructive knowledge that he was the source of the cards. There is a non-frivolous issue as to the issue of knowledge regarding the “Running Right cards”

Considering both Ratliff’s statements at the safety meeting attended by management officials and the fact that it is possible that Respondent believed Ratliff submitted the “Running Right” cards, I find sufficient evidence exists that Respondent had knowledge of Ratliff’s protected activity.

Coincidence in time between the protected activity and the adverse action

The Commission has accepted substantial gaps between the last protected activity and adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) and Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miners= contact with MSHA and the operator=s failure to recall miners from a layoff; however, only one month separated MSHA=s issuance of a penalty resulting from the miners= notification of a violation and that recall failure). The Commission has stated AWe >appl[y] no hard and fast criteria in determining coincidence in time between protected activity and subsequent adverse action when assessing an illegal motive. Surrounding factors and circumstances may influence the effect to be given to such coincidence in time.=@ All American Asphalt, 21 FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). In the present matter, the time between the protected activity and the termination was two days. Ratliff submitted most of the “Running Right” cards on October 15 and was informed that he would be terminated on October 17. Some of the “Running Right” cards were actually submitted on October 17. Even if Respondent was not aware that Ratliff had submitted the cards, the time between Ratliff’s participation at the safety meeting and his discharge was only eight days. This easily meets the Commission’s requirements. Thus, I find that the time span between the protected activities and the adverse action is sufficient to establish a nexus.

Disparate Treatment

Respondent claims that Ratliff was discharged for alleged insubordination and complaints from co-workers about his attitude and work performance. Ratliff has a history of being difficult to work with including a warning for insubordination and a verbal altercation with another employee. However, the ultimate action that led to his discharge was an altercation with Otto Bryant in the bathhouse. Ratliff described Bryant walking into the bathhouse and, while Ratliff was disrobed, angrily berating him for failure to complete a task to which he had not been assigned. Ratliff admitted to using profanity in seeking to end Bryant’s tirade. While the use of profanity is not protected activity, the fact that an employee who engaged in protected activity suffered more severe punishment for use of profanity than other employees that did not engage in protected activity can be disparate treatment. Sec=y of Labor on behalf of Bernardyn v. Reading Anthracite Company, 22 FMSHRC 298, 304 (Mar. 2000). Ratliff noted that two or three other people had verbal altercations with Bryant and one, K.J. Phillips even used the same or similar language, a little over two year ago. Tr. 72, 73. Perhaps more importantly, Cook admitted that a coal mine is not a delicate place and that other miners had spoken profanely to a boss in the past without being discharged. Tr. 74.

Ratliff also described Respondent’s protocol when a member of management sought to discipline an employee. Tr. 41, 42. A manager is supposed to take an employee aside and discuss work-related issues in a respectful manner. Tr. 41, 42. Respondent did not refute that this was the protocol. I think that it is beyond question that a supervisor yelling at a naked employee after a shift in front of an entire room of co-workers fails to meet Respondent’s disciplinary policy. I would also note that this is likely adequate provocation for the response, however salty, provided by Ratliff.^{^[5]} Accordingly, I find Respondent disparately treated Ratliff, both because he was discharged for behavior that did not result in discharge to other employees and because he was treated differently than provided for by the Respondent=s disciplinary policy.

Having considered the four factors above, I find that the Secretary has established a nexus between Ratliff=s protected activity and the Respondent=s subsequent adverse action.

Tolling the Reinstatement

While Respondent does not explicitly argue that the Ratliff’s reinstatement should be tolled as a result of the January 15, 2013 lay-offs, it does argue that Ratliff would have been included in that lay-off. It also noted his pay and benefits would have ceased this month. The Commission dealt with the issue of tolling temporary reinstatements in Sec=y of Labor on behalf of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050 (Oct. 2009). In that case, the Commission noted “that the occurrence of events, such as a layoff for economic reasons, may toll an operator’s reinstatement obligation or the time for which an operator is required to pay back pay for a discriminate.” KenAmerican Resources, Inc., 31 FMSHRC at 1054 (citations omitted). In order to toll reinstatement, Respondent must show by a preponderance of the evidence that work is not available for the discriminatee whether through layoff, business contractions, or similar conditions. Id. at 1054-1055 citing Simpson v. Kenta Energy, Inc., 11 FMSHRC 770, 779 (May 1989). A tolling claim acts as an affirmative defense to reinstatement and backpay. Id. In evaluating a tolling claim, a judge must consider, among other things, whether the lay-off properly included the discriminatee. Id. at 1055. The Judge has a responsibility to look at the process used to determine lay-offs and determine how Respondent actually made the decision, including determining whether it actually followed the process it stated. Id. at FN 5.

I believe that Respondent misunderstands the nature of KenAmerican Resources, Inc. In that case, Respondent laid-off 290 of its 370 employees, including the discriminatee, when the mine was idled. KenAmerican Resources, Inc., 31 FMSHRC at 1051. The Secretary’s memo noted that the employee’s position had been eliminated. Id. The purpose of KenAmerican Resources, Inc. was to ensure operators were not forced to retain employees with no possible productive role. It only applies when “work is no longer available,” not when the operator believes the alleged discriminatee is among its’ less productive workers. Consider Judge Feldman’s decision in Sec=y of Labor on behalf of Shemwell v. Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc., 2012 WL 2870661 (June 2012). In that case, the operator claimed that it could not temporarily re-instate an employee because it eliminated the position of welder at its fabrication shops. Id. at *7. However, the operator admitted that it had eleven welders assigned to other locations but claimed that it could not reinstate the employee to that position because all those positions are filled. Id. The Judge determined that accepting the assertion that the employee could not be reinstated because the positions were filled “would eviscerate the anti-discrimination provisions of the Act.” Id. citing Sec'y of Labor v. Akzo Nobel Salt, 19 FMSHRC 1254, 1259 (July 1997). The Judge also decided that because a position existed with the same or similar duties, “it is unnecessary to address whether the reported layoff…tolls the Respondents' reinstatement obligation.” Id. at *8.

It is my opinion that Judge Feldman’s findings accurately describe the application of KenAmerican Resouces, Inc. Applying those principles in this case, a mere 14 employees were laid off out of a total of 106 and only five employees were permanently severed from service. Cook admitted on the stand that a super-section featuring two miners is still operating at Mountaineer Mine. Tr. 111. As Ratliff noted, the super-section is still using shuttle cars and other equipment he might run (regardless of whether those positions are already filled). Tr. 43. I find that because work is still available for shuttle car operators, Respondent’s reinstatement obligation is not tolled.^{^[6]}

Conclusion

In concluding that Ratliff=s complaint herein was not frivolously brought, I give weight to the evidence of record that he had a history of and engaged in a number of protected activities including noting safety hazards and failure to follow plan at the safety meeting and anonymously reporting safety conditions through the “Running Right” program. I also conclude that Respondent was aware of Ratliff’s actions, that Respondent showed animus toward Ratliff=s alleged protected activities, and that there was a close connection in time between his alleged protected activity and his October 17, 2012 discharge. Finally, I conclude that there was disparate treatment between the way Ratliff and other employees.

^{^[1]} Under the Act, protected activity includes filing or making a complaint of an alleged danger, or safety or health violation, instituting any proceeding under the Act, testifying in any such proceeding, or exercising any statutory right afforded by the Act. See Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).

^{^[2]} ASubstantive evidence@ means Asuch relevant evidence as a reliable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

^{^[3]} The actual date was October 6, 2013, Ratliff corrected this mistake in his testimony at hearing. Tr. 45.

^{^[4]} “Running Right” cards are forms provided to employees, allowing them to anonymously document safety concerns.

^{^[5]} The Commission has held that employers cannot provoke an employee into engaging in profanity in order to use the outburst as a pretext for an unlawful discharge. Reading Anthracite Company, 22 FMSHRC at 305-306.

^{^[6]}Respondent spent considerable time and effort at the hearing showing that the decision to lay off Ratliff’s was the result of an objective analysis. I do not think that it is necessary to discuss this issue because 1.) Ratliff’s discrimination claim is not frivolous and 2.) there is work available for shuttle car operators at Cobra.