FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W. SUITE 9500
WASHINGTON, D.C. 20001
Telephone (202) 434-9933
April 3, 2012
|
SECRETARY OF LABOR, obo, TRAVIS CAUDILL Complainant
v.
CAM MINING, Respondent |
: : : : : : : : : |
DISCRIMINATION PROCEEDING
Docket No. KENT 2010-1580-D PIKE CD 2010-07
Mine No. 28 Mine ID 15-18911 |
DECISION
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee for the Complainant
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, for Respondent
Before: Judge Moran
Introduction.
In this discrimination proceeding under section 105 (c)(1) of the Mine Act, the Court finds, for the reasons which follow, that the Complainant, Travis Caudill, engaged in the protected activity of making safety complaints, by informing his superiors that there was insufficient time for him to perform his job as a pre-shift examiner. Only after the Respondent was cited by MSHA for failing to do the preshift, did Cam Mining take the adverse action of discharging the Complainant, singling him out among many who failed to perform duties related to those preshifts. The Court further finds that Cam did not establish any affirmative defense to show that there were unprotected activities to justify its adverse action.
Findings of Fact
The Complainant, Travis Caudill, testified first.
He began working for Cam Mining
(“Cam”) in 2002 or 2003, starting as a roof bolter.
Tr. 17. Near the end of 2009, he became a
certified foreman. Tr. 28. His work in that position included involvement with the creation of a
new opening at the mine.
After that opening, referred to as the “Marrowbone,” was completed, Caudill was
assigned as an examiner. It was in that position, as an examiner, that the events in controversy
arose. Tr. 34. In that role Caudill was to examine the travelways, the head drives, the belts, and
the refuse chambers. This work occurred on the “about half of the second shift and all of the
third shift.” Accordingly, he was doing two examinations each day he worked. Thus, he did the
preshift for the oncoming third shift and then the preshift for the day shift. These exams were to
be done between 8 to 11 and 3 to 6, respectively. Tr. 35.
The hoot owl shift started at 11 and
the first shift at 6. Caudill would arrive for work around 7 to 7:30 p.m., reporting to Danny
Conn, the second shift mine foreman. In the time between his two preshifts, that is, from 11 p.m.
to 3 a.m., Caudill would repair things, such as belt splices. The preshift itself, however, is done
alone. Tr. 38. Miners were not to enter the mine for their shift until Caudill had called out that
his preshift was done. Tr. 39. A certified foreman would take down the information relayed by
Caudill, recording it in the preshift book. Caudill would later “sign off on it, if everything was
correct.” Tr. 39. Caudill would call out his preshifts reports before 11 p.m. and 6 a.m. Tr. 40.
There are two separate preshift books for the examiner, such as Caudill, to later review. Tr. 40.
One was for the belts and outby and the other was for the section. The actual preshift work that
needed to be done was performed by the section foremen. Tr. 41. Apparently the section
foremen do some preshifting areas and Caudill would do others, with Caudill doing up to where
the belt hits the feeder. In the outby area, Caudill’s responsibility to examine encompassed all
the belts, airways, branches, lifelines, C0s, power centers, refuge chambers, track and roof. Tr.
41.
When Caudill first started doing preshifts, Frank Smith and Reggie Bates told him the areas that needed to be examined and he traveled with Perry Norman, his predecessor on that job, who showed him what the job entailed. Caudill agreed that the job was the same each day, in terms of his examining duties. Tr. 43 However, importantly, what he might encounter on a given day however was not predictable. Caudill was unsure exactly when he started doing preshifts, but thought it was around February 2010. Tr. 44, 46. His last day at work was March 17, 2010, when he was discharged.
With his testimony augmented by the use of G 6, a map of the mine, Caudill identified the Rob Fork portal on that map, noting that it appears on the upper left side of it. Along with the aid of the map, Caudill’s testified as to the areas he would preshift. His preshift duties took him all the way to the power center. Working with MSHA Inspector Nathan Mounts, Caudill provided his estimates of the time it would take to cover the areas of his preshift. Tr. 48. Caudill stated that he had to check various installations and that there were things to do at each heading. For example, at the power center, one has to check the refuge chambers and there were things to be checked at the head drives. Tr. 52. Caudill also noted that, for a good part of his preshift exam, he would have to be hunched over. If one were to walk the whole area, Caudill maintained that it would take all day, but no one simply walked the whole distance. Instead, a tracked diesel mantrip was used and Caudill’s access was through that diesel mantrip. Tr. 54. Others were on the track at the same time Caudill was on it, using different vehicles. Although the mantrip helped, Caudill was not able to use it for the entirety of his preshift exam. Tr. 56. For example, one would need to leave the mantrip to inspect the head drives and around the power centers and the refuge chambers in order to adequately inspect those areas. Tr. 58. Also, going toward the two section, Caudill had to walk the belt because there are two separate entries and each area had specific things that needed to be checked. Tr. 57.
Further, in checking the power center, one has to make sure that all the required things are
present; one also has to walk around and check the ribs as well as the fire extinguisher and rock
dust. Tr. 60. Some installations were in areas that were difficult to access.
Caudill was doing the preshift on the Rob Fork side when he first started doing that job
and, even then, he was “stretching it” to get it done. Later, he would have to go “portal to portal”
when the miners started entering the mine on the Marrowbone side. When that switch occurred
and his position switched to the Hellier (aka, the “Marrowbone”) side, all of Caudill’s men were
still over on the Rob Fork side. Tr. 65. This meant that Caudill then had to backtrack, something
he did not have to do when he entered from the Rob Fork side. Tr. 65. In explaining how he
would have to “backtrack,” (i.e. retrace his route), Caudill stated that he would enter from the
Marrowbone portal. When starting the second of the two preshifts he would do each day he
worked, that second preshift, which was the 3 a.m. preshift, would start that from wherever he
happened to be when that time arrived. Thus it was when he would start his second preshift
exam that he would need to “backtrack.” By contrast, for his first preshift of a given day, that
would begin at the Hellier side. Tr. 71. Caudill would do repair work in the interim between the
two preshifts he would perform each day. It is also noteworthy that when Caudill rode on the
tracked vehicle, he would sit, but in a semi-reclined position, because the roof was too low to
allow him sit up fully, the way one would if one were in an automobile. Tr. 74-75. Given that,
to properly examine the area, Caudill could not travel too fast in the tracked vehicle. Tr. 75. He
would also have to mark his date, time and initials at each place he would stop. Tr. 76. The
boards to list that information were located along the belt line. Tr. 76.
It was Caudill’s testimony, and the Court specifically finds this to be credible, and the fact, that simply to run through the preshift, with no ride available, it took more than 3 hours’ time. Further, that time would increase if one had to correct or fix anything in the course of the preshift. Tr. 62. Caudill stated that he did keep telling those above him that he didn’t have sufficient time to do the preshift properly and the Court also finds this to be the fact. These statements constituted safety complaints. Among those he informed of this problem were Danny Conn, Seth Haynes (the chief electrician) and Reggie Bates. Tr. 63.
Mr. Caudill stated that there were times when he had help doing his preshift exams. Tr. 78. Danny Conn and Seth Haynes would help him. Tr. 78. In the course of his testimony, Caudill reasserted, several times, that he did inform others that he did not have sufficient time to time to do the preshift exam “the way it needs to be done.” Tr. 78. The Court finds this to be the fact as well.
Caudill identified on the map the location of the East Mains, an area of his preshift that
was discussed by various witnesses.
Tr. 82. The reduced height in the East Main required that
one “duck walk,” that is, one could not stand fully erect in that area. Tr. 83. There is no track
that goes to the East Mains. Instead that area of the mine had a “permissible ride,” which ride is
similar to small 4 wheeled vehicle, and very much like an electric golf cart. Tr. 91. It was the
only such vehicle of that type at the number nine power center. Tr. 92. Caudill’s testimony
established that the performance of the preshift was not simply a matter of looking at things.
This was because, during the course of the preshift exam, things would be discovered that needed
attention. For example, Caudill might come upon rock which would need to be pryed down.
Caudill’s recollection was that there were nine initial boards in that area requiring his date, time
and initials or “DTIs.” Tr. 84. During the time in the week before the violation was issued by
MSHA, Caudill did not examine the East Mains at all.
As previously noted by the Court, it was
Mr. Caudill’s credible testimony that he kept telling mine officials that they needed to fix his
ride. He told them there was not enough time to walk the area and still take care of all his other
responsibilities. Tr. 85-86.
Caudill also stated, and again the Court finds this as a fact, that he told Danny Conn and
Seth Hayes about the ride not working in the East Mains on the first day he discovered that it was
not functioning. Tr. 89. Caudill stated that Mr. Conn told him that he would take care of it, and
he interpreted that response to mean both that the ride would be repaired and that Conn would
examine the East Mains.
Tr. 90. Seth Haynes was present during Caudill’s exchange with Mr.
Conn. Haynes, as the Chief Electrician, was the person most likely to do such a repair. Tr. 91.
Caudill stated that he believed, or at least assumed, that someone else was examining the East
Mains, when he did not have time to do that due to the ride being broken. Tr. 96.
It was Caudill’s credible contention that one was not to list problems in the preshift book;
that one would get in trouble if that was done. Thus, he stated that Reggie Bates told him not to
put information regarding hazards in the books. Tr. 102. Instead, the practice was for one to tell
others about problems and they would get them fixed. The thinking behind that was that
recording such matters “looks bad on the books.” Tr. 103. Caudill maintained that the company
wanted the books “to be clean because the inspectors look at it.” Tr. 105. The Court concludes
this to be a plausible assertion and finds it to be the fact. As Caudill explained the practice
further to the Court, he would enter a problem in the books when he could fix it then and there.
If not, he would, in the example of an electrical problem, tell the electricians. Such a problem as
that is written down, but in a separate book, not in the preshift book.
Tr. 104. Instead, his
practice was not to sign off on the book, if a problem was found and not fixed immediately.
Caudill also informed that others were required to sign the preshift books, naming Frank
Smith and Reggie Bates as specific examples of such others. Of course, Caudill agreed that only
he would observe the conditions firsthand as he was the only one doing the actual preshift
exam.
On March 17th, Caudill did not know that MSHA inspector Nathan Mounts was underground. Tr. 120. On that day, Caudill stated that he called out his preshift, then came outside, then filled out his books. Tr. 121. Caudill told Reggie Bates that he did not have time to get up to the East Mains and that Bates responded that he took care of it. Tr. 122. Frank Smith spoke to him later that day and told him that the mine was going to have to suspend him for three days and that, following a meeting with others, he faced possible dismissal. Tr. 123. Smith told him that the basis was that he had not been making his preshift but had been signing off the books that he had been doing his preshifts. Tr. 124. Caudill responded that he had not been making his preshifts but that he had not signed anything that he wasn’t supposed to be signing. Thus, he denied the aspect of falsely signing the books. Tr. 124. He told Smith that he hadn’t been able to do the preshift because there was not enough time to do it. Smith countered that he believed there was sufficient time to do the preshift. Tr. 124. Caudill spoke to people on the telephone about the issue, but did not recall receiving any letter regarding termination of his employment. Tr. 126.
Caudill affirmed that the first day he was notified that he may be fired was March 17,
2010.
Tr. 137. On that day he had come from his home to the mine and then received the
telephone call from Mr. Smith. Smith advised him then that he was on a three day suspension
pending a meeting to see if termination would occur. Tr. 138. Caudill then returned to his home.
The conversation with Mr. Smith was, in Caudill’s estimation, about ten minutes. Tr. 139.
Smith told him that the basis was that Caudill had signed off on the books, attesting that the
preshift had been done, when in fact it had not been done. Tr. 140. Caudill, responding with
some emotion, but no cussing, told Smith at that time that he had not done those things claimed
by the mine. Tr. 140-141. He was told to come back in three days to meet with the supervisors
over the issue, but that promised meeting never occurred.
After the three days passed, Caudill called Mr. Smith. He tried to reach others, including
Jack Holbrook, the CEO of the company. Tr. 144. He did reach Smith but was given no answers
about his status and was again told he would have to speak with Mr. Holbrook. Caudill again
told Smith he did not do what he was accused of doing. Tr. 145. At the end of the call, Caudill
did not know what his employment status was.
Tr. 145. Caudill next drove to the mine the
following day, but no one was available to speak with him. He returned again the day after that
and talked with Frank Smith and Joey Baldwin, but neither of them could tell him anything and
he left again, with no information about his status. Finally, some five or six days later, he was
able to reach Jack Holbrook, who told him that they were letting him go for falsifying records.
As Caudill stated, “Jack [Holbrook] told me he had seen my name somewhere in the book.” Tr.
148. Caudill testified that he responded that he “didn’t sign off on any book.” Tr. 148. Caudill
maintained that his initials only appeared where they were supposed to appear, that is, only where
they legitimately belonged. Tr. 149. As noted, Caudill was never given the promised meeting.
Tr. 148- 149. Further, he did not remember ever receiving a letter of termination. Tr. 153.
In the Court’s inquiry of Mr. Caudill about the “ride,” which refers to the permissible ride, which was not operating during the time in issue, Caudill stated that the ride was in its location for the very purpose of traveling to the East Mains Panel and that it was there solely for that purpose. Tr. 194, 201. The Court finds that to be the fact. Caudill also agreed that, although the ride was broken on the 10th, he was able to complete his inspection on that day, including inspecting the East Mains. Tr. 194. Caudill maintained that he was barely able to complete the exam on that day and that, to get it done, he was “pushing it.” Tr. 195. The distinction was that, “[i]f you run into any problems along the way on the rest your exam, you wouldn’t have time to complete any of it.” Tr. 196. Caudill explained that, seeing he had insufficient time to complete the exam, if he had gone ahead and tried to do it anyway, he “wouldn’t have been able to have the ride back in time at the bottom of the port[al] for the men to come in.” Tr. 196.
In testimony that the Court views as aiding the Complainant’s case, Caudill agreed that,
in his earlier testimony at deposition, prior to when he was going up to Rob Fork, he was able to
do the exam in three hours with the ride. More particularly, Caudill agreed that, with the ride on
the East Mains, he could “push and get it done.” Tr. 168. As to when they later switched to the
Marrowbone Creek site, Caudill could still do the 8 to 11 p.m. exam because he didn’t have to
“double up” (i.e. he did not have to backtrack, or retrace, his steps). Tr. 168. However, it was
Complainant’s contention that he could not complete the 3 a.m. to 6 a.m. preshift because, for
that preshift, he would have to start in the middle of the mine, work his way to the portal, and
then come back. Tr.168. Caudill also maintained that, for the earlier preshift, he was still
having trouble completing it.
Tr. 168. Caudill did agree that no one told him that he was no
longer assigned to inspect his areas of responsibility. Tr. 171. When he received help in
examining an area, this occurred only when someone happened to be up that way, but he couldn’t
ask them to do his job. Tr. 172.
Tending to support that the job took too much time, Counsel for Respondent stated that,
when Caudill did receive some help in doing his job, they would call him and report that they
checked a section or perhaps two sections, informing him as to the areas they were able examine
for him. Tr. 172. Caudill agreed this happened from time to time. Tr. 172. Thus, Respondent’s
Counsel’s questions demonstrated, beyond Counsel’s attempt to show that Caudill could get
help, when he needed it, that in fact help was needed. If, as Respondent claims, the preshift
could truly have been done in a timely manner, such help would not have been needed.
However, on March 11th, Caudill agreed, no one called him to advise that they had examined an
area for him.
Tr. 173. The same was true, that is, no one called Caudill to tell him that they
had examined some portion of his exam area for the 12th through the 17th. Tr. 173. Caudill did
state in his deposition that he received help in completing his exams “quite a bit” but at hearing
he stated it was “from time to time” if a miner was going to be up that way. Tr. 173. Thus, at
least at the hearing, Caudill stated that he did get help quite a bit, but that help was always
contingent on another miner being up that way. Tr. 173. Those that did help out at times
included Danny Conn and Seth Haynes and, at times, Joe Akers.
Tr. 174.
Caudill also stated that he did talk with Seth Haynes and Danny Conn on the 10th of March, advising them that the ride was broke down and he hadn’t been able to make the East Mains. Tr. 179. He also told Reggie Bates about the ride being down. This occurred when he came outside the mine. This was either on March 10th or the following day. Tr. 180. Caudill stated that he talked to Reggie more than one time. One of those occasions was on March 17th when he told him he hadn’t been able to get to the East Main panel because the ride was down and that he told him that before he came outside of the mine. Tr. 184. Although he believed he also told Frank Smith about this in his office, he could not be sure of the date of the conversation. Tr. 184.
Caudill acknowledged that the disciplinary form, which he had apparently not seen until just before the hearing, listed his failure to examine the East Mains as grounds for his suspension. Tr. 186. Caudill agreed that he admitted to Smith that he had not examined the East Mains from the 11th through the 17th but contended that he was told they would take care of it. Again, he flatly denied that there was ever any occasion when he signed (i.e. initialed) any preshift book indicating that he had examined the East Mains, when in fact, he had not done so. Tr. 196-197. Notably, there is no documentary evidence contradicting Caudill on this point.
Frank Smith, the mine’s superintendent was also called as a witness. Tr. 282. The hierarchy is such that James Slone is Smith’s boss and Jack Holbrook is Slone’s. Tr. 283.
Smith’s office at the time in issue was at the Marrowbone side. Smith acknowledged that he
traveled with Inspector Mounts on March 17, 2010 and that Caudill took over for Perry Norman
as the preshift examiner. Tr. 285. Superintendent Smith denied that Caudill ever made any
complaints to him about being unable to do his job.
Tr. 286. The Court does not subscribe to
the superintendent’s version. Smith was aware of Inspector Mounts presence at the mine on the
morning of the 17th. Directed to R 7 at page 2, a document dated March 15, 2010, Smith stated
the signature there is not his, but rather that of James Smith, the section foreman. Tr. 287. Smith
agreed that Joe Akers signed the preshift examination report and that Reggie Bates countersigned
it. Tr. 288. As to gas readings reflected in that exhibit, Smith stated that he never requested any
discipline against anyone for recording a gas reading on March 15th between 3:30 and 5:30 a.m.
when no reading had actually been taken. Tr. 291. At any rate, when asked if anyone else was
disciplined, Smith advised that “Travis and [Mac] Sweeney retired.” Tr. 291. Accordingly, the
Court observes that whether those individuals would have been disciplined is in the realm of
speculation only.
More relevant to the issues at hand, Smith agreed that for March 15th, there is no mention
of the East Mains being examined while conceding that the preshift book was signed by Jeff
Smith.
Tr. 292. Yet, Frank Smith agreed that no disciplinary action was taken against Jeff
Smith.
Tr. 293. Frank Smith also agreed that he never tried to determine who else
countersigned the examination book besides Jeff Smith and that no disciplinary action was taken
against anyone else either. Tr. 294. And, Superintendent Smith also agreed that while the book
indicated that the East Mains was okay for March 16th, when they went underground no date,
time, or initials were found for that area on that date. Tr. 294.
On the date in issue, Frank Smith stated that it was Jeff Smith who called out to Perry Norman that the crews could go underground, as the preshift would have been completed. Tr. 297. Smith stated that it would have been Perry Norman’s duty to know if the East Mains had been examined. Smith admitted that he took no action against Norman for allowing miners to go underground without assuring that the preshift had actually occurred. Tr. 299.
Smith maintained that after he received the citation from the inspector he thought he spoke with James Slone about it, but couldn’t remember exactly what he (Smith) said to him.
Tr. 310. He thought the conversation was about what he and the inspector observed in the East
Mains. Tr. 310. To that, he added that “there was proof that no one had been there to examine
that area.” Tr. 311. Smith stated that he told Danny Conn to have Caudill call him. Tr. 311.
Smith also stated that although he spoke with his immediate boss, James Slone, about the
situation, again he could not recall exactly what was said between them.
Tr. 311. Describing
his memory deficit as an inability to recall “exactly what was said” was too generous a
description on the witness’ part, as Smith offered nothing at all about the substance of that
conversation.
Directed to Exhibit G 4, dated March 17, 2010, Smith agreed that it shows his handwriting on the second page. He stated he probably completed that form on the 18th of March. Tr. 314. When he spoke to Caudill on the evening of the 17th and, with knowledge that MSHA had issued the order relating to this matter, Caudill told him that he had not been preshifting the area. According to Smith this was the first he knew that Caudill had not been preshifting that area. Tr. 314. Smith repeated that he had no prior conversation with Caudill in which Caudill informed him that the ride was down and that he was unable to do that area. According to Smith, Caudill then told him the ride was down and that he wasn’t going to walk it. Tr. 315. Thus, Smith contended that Caudill refused to walk the area, not that it couldn’t be done. Smith then advised Caudill of the three day suspension with intent to discharge, adding that first there would be a meeting with Jack Holbrook and James Slone before determining if Caudill could come back to work. Tr. 315. Also as unlikely, in the Court’s view, as his memory failure regarding his discussion with Mr. Slone, Smith could not recall if he had any discussions with anybody about suspending Caudill before he made the call advising him of that decision. Tr. 315. The meeting between Caudill and upper management never occurred. Smith agreed that, as far as he knew, there was to be such a meeting but he claimed he didn’t know if such a meeting ever occurred. Tr. 316.
It must be said that Smith was amazingly uninformed about an employee’s right to a meeting in such employment decision circumstances. He stated he never followed up or inquired about whether Caudill would have or was to have his meeting, nor could he speak as to whether such meetings were regularly provided to others in such circumstances. Tr. 317. As alluded to earlier, regrettably, the Court did not find Smith to be credible. When asked if he told Caudill that a reason for his suspension was falsifying records, his answer was “[n]ot to my knowledge.” Tr. 317. Further, when Smith filled out his report the very next morning, he admitted that it did not contain the claim in his testimony that Caudill refused to walk the area. Tr. 318. It is, to be polite, very unlikely that such a statement, if it actually had been made by Caudill, would have been omitted by Smith in that report. Instead, Smith’s report had a very different tone from his claim at the hearing because the report stated that the ride was down and that Caudill didn’t make the East Mains area for his preshift. Tr. 319. It is notable that, although the report Smith filled out has a box for “employee’s remarks,” Smith entered nothing in that space. Tr. 320. Further casting doubt upon the reliability of Smith’s testimony, when asked if he ever had any conversation with Jack Holbrook about Caudill, Smith asserted that he didn’t think he did. Tr. 321.
Regarding the ride Caudill used, Smith admitted its obvious purpose: “They had it out
there from Mine 32 to help out.” Tr. 342. Later, the ride was moved to the East Mains for use.
Tr. 343. Smith maintained that he did not know of any problems with the ride until, he thought,
“the evening when I talked with [Caudill].”
Tr. 343. At that time Caudill told him the ride was
“down” (i.e. not working). Smith stated that prior to March 17th, when Inspector Mounts came to
the mine, he did not know of any problems with the examinations of the East Mains. Tr. 344.
As he recalled, when he then went to the East Mains, the last recorded date of an inspection was
March 10th. Tr. 344. Smith and the Inspector returned to the surface around 3 (a.m). at which
point the Inspector had a safety discussion with the men coming in on the evening shift. Tr. 346.
Smith then received G 1 around 4 or 4:30.
Testimony was also received from Mr. William May, who is the Human Resource
Manager at the mine and who has held that position for a very long period of time. Tr. 390.
With no disrespect to the witness, he offered nothing of value to the determinations involved in
this case. For that reason, May’s testimony is included only in a footnote.
James Slone, the mine’s manager, was the final witness in the proceeding. At the time in
issue, he was the underground mine manager. Tr. 407. Slone stated that he first became aware
of the issue regarding Caudill on March 17th during Inspector Mounts’ inspection.
Tr. 409.
Slone was not underground with Mounts during the Inspector’s examination and he had never
heard of any problems in connection with the preshift of the East Mains prior to the 17th. Tr. 411.
All Slone could offer was what others, Inspector Mounts and Frank Smith, told him. He then
discussed the matter with Smith. Smith spoke with Caudill about Respondent’s suspension with
intent to discharge and Slone spoke with Mac Sweeney, the other examiner. Tr. 412-413. The
upshot was Sweeney quit rather than face any disciplinary action, as he was ready for retirement
anyway. Tr. 413. Slone also stated that Phil Gray and Reggie Bates were disciplined over
examination issues in the spring of 2010. Bates’ issue was failure to do a proper examination as
was Gray’s issue. Tr. 415.
Slone also agreed that, based on the fact that there were readings entered in the preshift book for dates that the East Mains was not actually examined, that someone had written that information into the book, despite there being no DTI’s underground. Thus, he conceded that “evidently” someone had falsified the records. Tr. 422-423. Slone expressed that he believed Caudill had been the falsifier. Tr. 423. He blamed Caudill because it was his duty, along with Mac Sweeney, to do the preshift and have it entered in the books or at least call out the results and have someone make such entries. Tr. 423. Slone stuck to his view, blaming Caudill, even though Caudill’s initials did not appear in the preshift book for the dates and matters in issue. This was based on Slone’s view that it was Caudill’s “duty.” Tr. 424. Contrary to his opinion about placing responsibility solely on Caudill, as Slone ultimately conceded, it was Akers and Smith’s signatures that appeared in the books. Tr. 424. Yet, despite holding his view, Slone admitted that he never went to Hopkins or Smith and asked them as to how that information found its way into the preshift book. Tr. 425. Though he agreed that such a false signing is a crime, Slone made no inquiry about who committed the apparent crime. Tr.426. Slone never took any action against Akers or Hopkins or Jeff Smith about those matters, nor did he have any discussions with Frank Smith about what to do regarding those individuals. Tr. 426-427. In sum, the Court concludes that Slone’s testimony did not advance the contentions made by the Respondent.
Discussion
In discrimination actions under the Mine Act, a miner must demonstrate by a preponderance of the evidence "(1) that [the miner] engaged in a protected activity, and (2) that the adverse action of which the miner complains was motivated in any part by the protected activity." Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). Under Section 105(c)(1) safety complaints are specifically mentioned as activity that warrants protection. 30 U.S.C. §820 (c)(1) (2006). Generally, an adverse action is an act or omission by the operator that subjects the affected miner to a detriment in his employment relationship or to discipline. Sec'y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-1848 (Aug. 1984). Adverse actions include discharge, suspension, demotion, coercive interrogation and harassment over the exercise of protected rights. Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985).
The Parties’ Post-hearing contentions.
A. Caudill’s Tardy filing of his discrimination complaint
Because it was raised as an issue by the Respondent, the issue of Mr. Caudill’s delay in filing his complaint of discrimination needs to be addressed. Caudill’s complaint was due to be filed by May 21st, but he did not file his complaint until June 24th. Tr. 131. Thus, Caudill was 33 days late in filing his discrimination claim. Tr. 189.
For more than twenty-five years, the Commission has held that the 60 day limit for filing a discrimination complaint is not jurisdictional. Hollis v. Consolidation Coal Company,
6 FMSHRC 21 (January 1984), aff’d 750 F.2d 1093 (D.C. Cir. 1984). The question is whether “justifiable circumstances” have been established for the late filing. Descutner v. Newmont USA, Ltd., (“2012 WL 894519. In resolving that issue, considerations should include whether the miner was proceding as a pro se litigant. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386-87 (Dec. 1999) and Hermann v. IMCO Services, 4 FMSHRC 2135 (1982).
While Caudill did not proceed pro se, he was effectively acting as such because he did
not even know that he could make a discrimination complaint, operating as he did under the
misimpression that a mine which claims a miner falsified records and discharges the miner on
that basis, provides no grounds for a complaint. Tr. 126, 191-192. It was not until Caudill
happened to speak to MSHA on a matter unrelated to his discharge that he learned of the
inaccuracy of his premise.
Once that error was dispelled, MSHA acted promptly to launch the
discrimination complaint. Tr. 127.
It is apparently true that miners, such as Caudill, are advised about their discrimination claim rights as part of their annual miner refresher training. However, the Court accepts as credible that Caudill was not well schooled in his rights regarding discrimination under the Mine Act and this further explains and excuses his missing the filing deadlines. More importantly, he was under the impression that those rights did not extend to a situation such as his, when a mine operator contends that a miner has falsified records.
A miner’s inaccurate assumption about grounds for discrimination complaints was also referenced in a general sense in Descutner v. Newmont, where Judge Barbour noted that “[t]he 60-day statutory limitation is not a particularly long filing period in view of the lack of sophistication of the average Complainant and the complexity of some of the legal bases for bringing a discrimination action.” Id. at *2, quoting Gross v. Leeco, Inc., 7 FMSHRC 219, 229 (February 1985).
Having observed Caudill and estimating his level of sophistication as minimal in such matters, the Court concludes that this was an understandable misperception. The Complainant did not appreciate that if a mine uses such a claim but that, in truth, its adverse action stems from displeasure that a MSHA enforcement action resulted against it, a cognizable action exists. With no disparagement toward Mr. Caudill, having watched and listened closely to the Complainant during his testimony, the Court concluded that he fits the description of the unsophisticated miner.
Another consideration in assessing the appropriateness of a tardy filing is the realization that the time limitations exist to assure fairness to the other side, by barring late filed claims where evidence has been lost, memories have faded and witnesses have disappeared. None of those aspects are involved here. See, Nantz v. Nally & Hamilton Enterprises, 16 FMSHRC 2208, 2214-15 (Nov. 1994) and Eddie M. Jeanlouis Sr. v. Morton Int’l, 25 FMSHRC 536, 2003 WL 22208186, Sept. 2003 (ALJ Feldman).
Accordingly, the Court allows the late filing in this instance.
B. Determination of Discrimination by Respondent
1. Though the findings of fact, above, implicitly and expressly address the contentions
made by the Respondent in its post-hearing brief, a few additional observations and comments
are in order. Respondent asserts that Mr. Caudill’s discharge “was not motivated, in any way, by
protected activity; rather it was solely the result of his refusal to do the very job he was being
paid to do, which placed miners in harm’s way.” R’s Brief at 27. Respondent maintains that the
Secretary failed to make a prima facie case because Caudill never made a safety complaint to his
supervisors nor to MSHA. Along this line of argument, Respondent asserts that Caudill never
complained “that conducting the pre-shifts on foot was a dangerous or unsafe act.” Id. at 28.
Respondent goes on to note that the “alleged protected activity” was Caudill’s reporting that he
“did not have time to complete his pre-shift inspection of the area.”
Id. Apart from the
Respondent’s witnesses who denied that Caudill ever advised them about the problem,
Respondent makes the larger argument that, even if it is assumed that Caudill did so report the
issue, it can not be deemed a safety complaint in any event. R’s Br. at 29.
The Court does not agree with the Respondent’s perspective. A safety complaint can be implicit. One need not expressly label a communication about a problem as a “safety complaint” in order for it to be so recognized. Here, Caudill’s repeated expressions to those above him that it was no longer possible for him to do the preshift after the ride was broken, was implicitly a safety complaint. The whole, indeed the only purpose, of the preshift exam is to make sure the mine is safe before miners on the approaching shift enter the mine. If the preshift examiner can’t get that vital job done and notifies those above him of that issue, clearly that miner has voiced a safety complaint.
Here, Cam Mining supervisors elected to look the other way, in the face of the safety
issue raised by Caudill. This continued, despite the evidence right in front of Cam, as evidenced
by the preshift book’s absence of Caudill’s doing the preshift, for a week. No disciplinary action
was brought against Caudill until after MSHA learned of the failure and after it had called
Cam
on the matter, issuing the Order. Only then did Cam react and its reaction was only against one
miner, Caudill. Though others above Caudill shared responsibility for this week-long failure, no
inquiry nor action resulted against those who improperly signed the preshift book. Accordingly,
consistent with the Court’s Findings of Fact (supra) the idea that Caudill was refusing to perform
his job is rejected. Rather than wouldn’t, Caudill couldn’t do the entire preshift.
Respondent’s Brief also speaks to whether Cam was motivated by Caudill’s protected activity when it discharged him. Cam maintains there is no evidence of unlawful activity on its part. R’s Br. at 33. Suffice it to say that the Court’s findings of fact demonstrate a different conclusion. Clearly, Cam was reacting against Mr. Caudill because of the Inspector’s issuance of the 104(d)(1) Order. Cam made no inquiry about and took no action against those who also bore responsibility for the lack of preshift exams over a considerable period of time and who signed off on the exams despite the fact they should not have done so. Cam’s action came right after, not before, the violation was cited by MSHA. So too, because of the Court’s Findings, it has been concluded that Cam was aware of the safety problem, but for reasons known only to those individuals, decided to skate, rather than address the matter. These conclusions, when coupled with the foregoing findings of fact, disposes of Cam’s other arguments at pages 33- 36 of its post-hearing brief. Finally, Cam makes the argument that, even if its motive was unlawful, it still had sufficient grounds to discharge Caudill for his unprotected activities alone. This defense rests on acceptance that Mr. Caudill allegedly told Mr. Smith that the ride was broken and therefore he wouldn’t walk it. R’s Br. at 38. The Court does not find that Mr. Caudill made such a refusal. Instead it finds that he told those above him that he couldn’t, not wouldn’t, complete the preshift within the allotted time.
The Court also reviewed Respondent’s Reply Brief but, in candor, it offers nothing more
than a reiteration of the arguments made in its initial brief. It also continues to be founded upon
the assumption of facts which the Court has declined to make. As already noted, the Court has
found that Mr. Caudill did make a safety complaint, in fact several of them. Thus, as mentioned,
a miner need not announce “THIS IS A SAFETY COMPLAINT” in order for such a complaint
to have been lodged. As noted, Mr. Caudill’s job was solely about safety and his multiple
complaints that there was insufficient time to do that job were clearly safety complaints and
nothing else. The ride was present, not for mine tours or some other cavalier activity. It was
there because it was essential to the full and complete performance of the preshift exam.
2. This case does not turn on a precise determination of the times it would take for the preshift examiner to examine particular areas during the course of his preshift.
As noted earlier, both sides spent considerable time attempting to establish that, according to their particular perspectives, that Caudill did or did not have sufficient time to carry out his preshift examination duties in the time allotted. To that end the government, of course, had Mr. Caudill testify. That testimony has already been discussed. Also, as noted, the government called MSHA Inspector Nathan Mounts on this issue. Mounts was the Inspector who issued the March 17, 2010 104 (d)(1) Order for the preshift examination failures. G 1, the order, and G 2, his notes associated with that. The violation occurs when miners go underground without the preshift exam having been made. Tr. 231. The Respondent did not challenge the violation.
Mounts was there to conduct an E02 spot inspection, which pertains to methane
evaluations. At that time Mounts noted that the required inspection for the East Mains was not
recorded. Tr. 224. Mounts, investigating this issue further, found that there had not been an
inspection recorded in the books for the East Mains prior to the 17th until March 9th. Tr. 225.
Mounts asked mine superintendent Frank Smith about this issue but Smith could not provide an
answer. Tr. 225. Yet, Smith’s signature was there in those books, reflecting that he had
countersigned them.
Tr. 226. Smith was unable to provide any evidence that the exam of that
area had in fact occurred. Tr. 228. Page 5 of the Inspector’s notes reflects the others who had
signed the book, attesting that the East Mains had been inspected, when in fact it had not been.
Tr. 229.
Mounts testimony also pertained to his view of the time it would take to complete Caudill’s preshift exam. G 6 was used to assist in understanding Caudill’s route and duties. Tr. 232. Mounts, whose experience included having performed preshift exams, made estimates of the time that it would take for Caudill to do his exam. Tr. 233. He concluded that it would take “around 3 hours 40 minutes” to do it and he considered that figure to be a “conservative” one. Tr. 239. This figure included preshifting the East Mains. Tr. 233-234. Mounts number was based on the distances involved, but it was not based on a dry run to see the actual amount of time it would take. Tr. 258. However, the inspector’s estimate worked on the assumption that no problems were found, as that would take additional time. Thus, Mounts’ conservative estimate accounted simply for the examination time under the assumption that Caudill was getting off his vehicle and doing the examining, with no accounting of the time involved if some problem was actually discovered. Tr. 234. Mounts’ estimate was benefitted by the fact that he had personally inspected the number 28 mine, including viewing the East Mains, “several times,” so it was not simply an academic exercise. Tr. 235. The Court finds that Mounts’ estimate was a conservative one.
Mounts stated, and the Court agrees with his observation, that to perform the preshift adequately, the examiner must run the mantrip at a reasonable speed, i.e. a slow enough speed so that one can properly look for any hazards. Tr. 242. Mounts worked with the assumption that one could not travel faster than 6 mph to examine the area properly. Tr. 248. That speed assumption was based on the inspector’s considerable mining experience, which encompassed some 10 to 12 years. Tr. 249. For example, a preshift examiner is to be looking for bad top or bad ribs, among other hazards. Tr. 242. To get a sense of the extent of the area that had to be preshifted, the Court inquired about the approximate distance involved and the answer was approximately nine miles. Tr. 244.
As one example of focusing on precise times in order to establish either that Caudill
could or could not reasonably have completed his preshift exam, questions were asked as to how
many minutes it would take to travel to the area of a rescue chamber, which was one of the places
to be examined during the preshift. For that, Mounts calculated the time involved to be 15
minutes. Questions were asked if the inspector was aware that there was a crossing under the
belt, so that no time would be consumed shutting it off first. Tr. 257. This focus truly misses the
forest for the trees because there was testimony from both sides that the time to do an adequate
preshift was close to taking the entire time allotted, with one side contending that there was
sufficient time and the other, that there was not.
The difference maker however was that the
ride was not working. That ride was not there for convenience. It served a purpose: namely, to
aid the preshift exam. The Respondent concedes that on the dates in issue, the ride was not
functioning. Tr. 201.
The Court also tried to get a better sense from the Complainant about the time it would
take to walk the East Mains without the ride being available. Caudill explained that it wasn’t
that far but that there are nine headings to be inspected. These headings were of different depths.
On the day he did inspect the East Mains with no ride available, Caudill could only estimate that
it took 45 minutes to an hour to inspect that area. Tr. 199. If problems are found, the inspection
time would obviously increase, because the problems need to be corrected. Tr. 200. Caudill
could not be precise as to the time it took walk the area,
but this case is not really about exact
times as the overriding question is whether he had adequate time to inspect his assigned areas.
While not discounting the need for some evidence on the issue, at least to establish the
plausibility of their respective viewpoints, the Court observes that the outcome does not depend
on making findings of exactly how much time it would have Mr. Caudill to do the particular
tasks attendant to his responsibilities. To approach the case in that manner would effectively
reduce it to a time and motion study.
Instead, that determination is resolved by credibility determinations. As the Court explained during the hearing: “You know, for the benefit of Counsel, I’ll tell you this. If you expect me to figuratively bring out a micrometer and figure out whether Mr. Caudill spent X number of minutes or X plus three or minus four, I mean come on. That’s not what this case is about. And so you can both spend as much time as you want. It’s your case, but that’s not how I am going to decide this case in terms of the validity of discrimination or not. What I have to figure out is something broader than that. Okay.” Tr. 372.
The Court finds that Mr. Caudill did not have sufficient time to do perform his preshift
examination duties without the ride being available.
3. Cam Mining discriminated against Travis Caudill in violation of Section 105 (c)(1) of the Mine Act
As stated earlier, the safety complaint here was Caudill’s complaining about insufficient time to do his preshift exam. These were, as the secretary notes, legitimate complaints for which mine management failed to take action to correct. Sec. Br. At 14.
On this record it is clear that the mine’s action was motivated by receiving the (d) order
for failing to preshift and that this was the cause of its adverse action against Caudill.
See also,
Tr. 323-325, making this evident. As the Secretary has noted, circumstantial indicia of
discriminatory intent is recognized by the Commission upon showing “knowledge of the
protected activity [,] hostility or animus towards the protected activity [,] coincidence in time
between the protected activity and the adverse action [] and [] disparate treatment of the
complainant.” Sec. Br. at 9-10, citing Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510,
rev’d on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983),
Hicks v. Cobra Mining, Inc. (April 1991) and Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
(Jan. 1984).
Order
Having determined that Caudill was discriminated against unlawfully, and unlawfully discharged, in violation of Section 105 (c) of the Mine Act, it follows that he is entitled to the relief sought in his complaint. Accordingly, subject to the direction that the parties confer, as stated below, it is ORDERED that the Respondent:
1. Expunge from Caudill’s personnel file all references to the unlawful issuance of the written warning of disciplinary action, and to expunge any other such references from any other records maintained by the company which relate negatively to Mr. Caudill in connection with this matter.
2. Reimburse Caudill for all reasonable and related economic losses or expenses incurred in the institution and litigation of this case. This is to include damages in an amount equal to full backpay, all employment benefits, all medical and hospital expenses and any and all other damages suffered and incurred by Complainant as a result of his discriminatory discharge. Further, that interest be added to backpay and other expenses, from the date of discharge until the date of payment, at the adjusted prime rate announced semi-annually by the Internal Revenue Service for this underpayment and over-payment of taxes.
3. Post this decision at all of its mining properties in conspicuous, unobstructed, places where notices to employees are customarily posted, for a period of 60 days.
4. Restore Mr. Caudill to his former position as preshift examiner with back pay and interest or to a similar position, at the same rate of pay, same shift assignment, and with the same or equivalent duties.
5. Pay an appropriate civil money penalty to MSHA for its violation of Section 105(c)(1) of the Mine Act, in accordance with the provisions of Section 110 of that Act.
The parties are ORDERED TO CONFER within 21 days of the date of this decision for the purpose of arriving at an agreement on the specific actions and monetary amounts that the Respondent will undertake to carry out the remedies set out above. If an agreement is reached, it shall be submitted with 30 days of the date of this decision.
If an agreement cannot be reached, the parties are FURTHER ORDERED to submit their respective positions, concerning those issues on which they cannot agree, with supporting arguments, case citations and references to the record, within 30 days of the date of this decision. For those areas involving monetary damages on which the parties disagree, they shall submit specific proposed dollar amounts for each category of relief. If a further hearing is required on the remedial aspects of this case, the parties should so state.
The judge, or his duly appointed successor, retains jurisdiction in this matter until the specific remedies to which Mr. Caudill is entitled are resolved and finalized. Accordingly, this decision will not become final until an order granting specific relief and awarding monetary damages has been entered.
So ordered.
/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219- 2456
Mark Heath, Esq., Spilman, Thomas & Battle, 300 Kanawha Blvd. East, P.O. Box 273, Charleston, WV 25321