FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268
June 6, 2013
UNITED MINE WORKERS OF AMERICA, |
: : : : : : : : : : : : : : : : : : : : |
DISCRIMINATION PROCEEDING
Docket No. PENN 2012-250-D PITT-CD 2012-04 Emerald Mine No. 1 Mine ID 36-05466 DISCRIMINATION PROCEEDING Docket No. PENN 2012-251-D PITT-CD 2012-05 Emerald Mine No. 1 Mine ID 36-05466 |
AMENDED DECISION[1]
Appearances: Laura Karr, United Mine Workers of America,
Triangle, Virginia, for Complainants
R. Henry Moore, Jackson
Kelly, PLLC, Pittsburgh, Pennsylvania, for Respondent
Before: Judge Miller
These cases are
before me on complaints of discrimination brought by United Mine Workers of
America (“UMWA”), on behalf of Mark A. Franks (“Franks”) and Ronald Hoy (“Hoy”),
against Emerald Coal Resources, LP (“Emerald”), pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. § 815(c) (the “Act”).
The parties presented testimony and documentary evidence at a hearing
beginning on Wednesday, April 10, 2013 in Pittsburgh, Pennsylvania.
I. BACKGROUND
Emerald Coal
Resources (“Emerald”) operates Emerald Mine No. 1, an underground coal mine in
Green County, Pennsylvania. Jt. Stip. ¶
1. Emerald is a large operator, who is
subject to the jurisdiction of the Act. At
the time relevant to this case, September through November of 2011, Emerald
employed Mark Franks and Ronald Hoy as beltmen at Mine No. 1.
On November 10, 2011 Franks
and Hoy filed separate discrimination complaints with the U.S. Department of
Labor’s Mine Safety and Health Administration (“MSHA”). In the complaints, the miners stated that Emerald
had “targeted”/“singled them out” “for participating and cooperating in a 103(g)
Complaint investigation conducted by MSHA.”
Complaint of Discrimination, Ex. A pp. 2, 4. Both alleged that they had been “harassed”
and “suspended for seven calendar days for cooperating” with MSHA during a
103(g) Hazard Complaint investigation. Id.
Franks and Hoy seek to be compensated for the seven calendar day
suspension, including regular, overtime and holiday pay. Both miners seek to have any reference of
this matter removed from their work records and an order entered requiring the
mine to stop harassing employees who participate in MSHA investigations. Following the submission of the complaints to
MSHA, the matters were investigated by an MSHA special investigator who
determined that violations of 105(c) had not occurred. Id.
at Ex. B pp. 1-4. On April 23, 2012,
pursuant to 30 U.S.C § 105(c)(3), the United Mine Workers of America, acting on
behalf of Franks and Hoy, filed the instant complaint of discrimination with
the Commission.[2] For the reasons set forth below, I conclude
that both Hoy and Franks have demonstrated a prima facie case of discrimination and that the defense set forth
by the mine operator is pretextual.
II. FINDINGS OF FACT
The findings of fact
are based on the record as a whole and my careful observation of the witnesses
during their testimony. In resolving any
conflicts in testimony, I have taken into consideration the interests of the
witnesses, corroboration, or lack thereof, and consistencies or inconsistencies
in each witness’s testimony and between the testimonies of witnesses. In evaluating the testimony of each witness,
I have relied on his or her demeanor.
Any failure to provide detail on each witness’s testimony is not to be
deemed a failure on my part to have fully considered it. The fact that some evidence is not discussed
does not indicate that it was not considered.
See Craig v. Apfel, 212 F.3d
433,436 (8th Cir. 2000) (administrative law judge is not required to discuss
all evidence and failure to cite specific evidence does not mean it was not
considered).
The complaint filed on
behalf of Franks and Hoy, along with the joint stipulations filed by the
parties and the testimony of Franks and Hoy, demonstrate that, on or about
September 22, 2011, an anonymous 103(g) complaint was made to MSHA. Jt. Stip. ¶ 12. The 103(g) complaint alleged, in part, that a
fireboss had not conducted an adequate inspection of a beltline. Following the filing of the anonymous hazard
complaint, an MSHA inspector conducted a hazard complaint investigation at Mine
No. 1. Jt. Stip. ¶¶ 12-14; Jt. Ex.
1. During the investigation into the
hazard complaint, the MSHA inspector spoke to, and took statements from, approximately
34 miners and supervisory personnel, including Franks and Hoy. Jt. Stip. ¶¶ 14-15, 29, 31-33, 38.
The stipulations of
the parties, along with the testimony, explain that, on or about September 28,
2011, Franks was approached by MSHA inspector Thomas Bochna, who questioned him
about the fireboss issue contained in the hazard complaint. Jt. Stip. ¶ 14. Franks responded that he knew the name of the
fireboss who had failed to perform the examination. Id. On the same shift, Franks was called into an office
with Bochna, Bochna’s supervisor, David Severini, the Emerald Compliance
manager, William Schifko, an Emerald management trainee, Adam Strimer, the UMWA
local president, Anthony Swetz, and the miners’ representative, Bruce
Plaski. Jt. Stip. ¶¶ 15, 16. Franks was asked if he was comfortable with
everyone being in the room, and was informed that Bochna had told Severini that
Franks knew the name of the person who had allegedly failed to conduct an
adequate beltline inspection. Jt. Stip. ¶¶
18, 19. Franks refused to provide the
name of the person during that meeting, and also refused to do so during a
follow-up meeting later that same day and again on the following day. Jt. Stip. ¶¶ 20, 22, 24, 26.
On October 4, 2011,
Hoy’s supervisor asked Hoy, who was not present for the earlier interviews, to
go to Schifko’s office. Jt. Stip. ¶ 29. There, Hoy met with, among others, Schifko,
MSHA Inspector Severini, MSHA Inspector Tony Setaro, and UMWA Mine Committeeman
Douglas Scott, who arrived after Hoy asked for union representation. Jt. Stip. ¶ 33. Severini informed Hoy, as he had Franks, that
the mine could not retaliate against Hoy for meeting with MSHA or providing
information. Id. In response to a
question from Severini, Hoy explained that he had observed several occasions when
an examiner had not properly examined the conveyor belts, however, Hoy refused
to provide the name of the examiner who allegedly had not properly performed
the examinations. Jt. Stip. ¶¶ 34, 35.
Hoy testified that, before
being called into a meeting with the MSHA investigator and mine management, he
had provided the name of the fireboss to the safety committee representative, David
Moore. (Tr. 18-19, 20, 21). Hoy understood that, by giving the name to
the safety committee representative, he was following the steps required by the
union. (Tr. 43). He believed it was up to Moore to follow
through, determine if there was a problem, and advise mine management. (Tr. 42, 43). MSHA conducted approximately 34 interviews in
which they questioned the adequacy of the inspection on the beltline, but did
not include Moore in those interviews.
(Tr. 130). As a result of the
interviews and the investigation into the 103(g) complaint, MSHA found that the
allegation concerning the examinations of the beltline was unfounded. Jt. Stip. ¶¶ 37, 38; Jt. Ex. 2. After MSHA completed its investigation on
October 4, 2011, Emerald began its own investigation into the allegations
contained in the 103(g) complaint. Jt.
Stip. ¶ 39.
On October 20, 2011, Hoy,
accompanied by UMWA Committeeman Douglas Scott, met with Schifko, Swetz, and
Emerald Human Resources Manager Chris Hayhurst. Jt. Stip. ¶ 42. Franks met with the group the same day. Jt. Stip. ¶ 40, 41. During their respective meetings, Franks and Hoy
again declined to provide the name of the examiner that they believed was
responsible to conduct the examination. Jt. Stip. ¶¶ 40, 42. Both repeated that he had provided the
information to the safety representative, David Moore, and that they were not
required to give further information, as they were protected by the 103(g)
complaint. (Tr. 19, 20, 21, 38, 46, 49,
50, 52, 58). Hoy told Schifko that the
questions constituted harassment and he would be filing a complaint of
discrimination under Section 105(c) of the Act. On October 24, 2011, in the presence of Schifko,
Hayhurst and Swetz, Franks again declined to name the individual. Jt. Stip. ¶ 43. On November 9, 2011 Franks and Hoy were
summoned to yet another meeting with Schifko and Emerald mine management. Both Franks and Hoy again declined to provide
a name of a fireboss who may have conducted an inadequate inspection. Jt. Stip. ¶¶ 45, 48. Hoy recalls that Schifko already knew the name
of the fireboss who was accused of not making an examination because he was
told by Mark Cole, a beltman at the mine.
(Tr. 22). At no time were Franks
and Hoy advised that any disciplinary action would follow if they failed to
provide a name of a fireboss. (Tr. 23,
40). However, at the end of their
respective meetings, Franks and Hoy were each handed a memorandum that stated they
had been suspended for seven days for “failure to provide information [he had]
. . . concerning serious allegations of safety violations.” Jt. Stip. ¶¶ 46,
49; Jt. Exs. 3 and 4.
Franks and Hoy both
credibly testified regarding the events leading up to the suspensions. The facts stated above are, for the most part,
undisputed and subject to stipulation. There
is a dipuste of fact, however, related
to the incidents that occurred prior to the 103(g) complaint and are raised by the
Respondent’s witness, David Moore, a member of the union safety committee. Franks, Hoy, and David Baer, a UMWA member,
all testified that Hoy approached Moore to complain about an examination of the
E1 belt in July. (Tr. 61). Hoy remembered speaking to Moore again on
August 17 at the beginning of the midnight shift and once more on August 29. (Tr. 24-25). Hoy testified that Moore told Hoy he already
knew which fireboss Hoy was talking about and was already looking into it. While
Moore agreed that Hoy mentioned a problem with a fireboss in July, he denied
that Franks and Baer were present and denied further discussions in August. (Tr. 123).
According to Moore, when he spoke with Hoy in July, Hoy told him that
there was a problem on the E1 longwall belt and asked Moore if he saw the
fireboss. (Tr. 123). Moore responded that he was off the beltline
when the fireboss went through, but that he had seen the dates, times and
initials, so he didn’t think there was a problem. (Tr. 123-124). Moore testified that he told Hoy that he
would speak to the firebosses to make sure they were all doing the mandated
belt inspections. (Tr. 124). Moore agreed that he knew what Hoy was
referring to, but stated that Hoy did not give him a name and Moore did not
ask. Moore denied having any other
conversations with Hoy after that day. (Tr.
125). Moore testified that he was in
Beckley on August 17 at the time Franks and Hoy allege they approached him a
second time with the complaint about a fireboss. (Tr. 122).
Moore also explained that Franks and Hoy are not limited to bringing
safety complaints to him, and that they can also speak to the company about a
problem if they see one. (Tr. 126).
I resolve the dispute
of fact in favor of Franks and Hoy. I do
not find Moore to be a credible witness.
His answers were opaque and evasive.
He insisted that he only spoke to Hoy once, yet Franks, Hoy and Baer
remember Hoy speaking to Moore about the issue at least twice, and also
remember that Hoy gave Moore the information to identify the fireboss. The fact that Hoy may have remembered or
written down the incorrect day in August does not change my assessment. All agree that Moore spoke to Hoy in July,
and Franks and Hoy also agree they spoke to Moore at the end of August. Both times, the miners expected that the
information they provided to Moore would be checked out and given to the
appropriate safety committee or management.
While, on one hand, Moore testified that he didn’t know who Hoy was
talking about, he also testified that he was aware of a time in July when someone
mentioned the fireboss neglecting his job and Moore checked for the dates,
times and initials and believed the examination was completed. (Tr. 127-128).
Clearly Moore was made aware of who was being accused, not only by Hoy,
but by other miners. I also find that
both Franks and Hoy believed they were following the UMWA normal procedure by
providing information to Moore as their safety representative, and that, by
doing so, they were following UMWA rules and protecting themselves from company
retaliation. Finally, I find it unusual
that Moore was not among the 34 persons interviewed by MSHA about the fireboss issue
that was contained in the 103(g) complaint, since he did have some information
about the matter. Moore accompanied the
inspector for at least part of the investigation that resulted from that
complaint, and he was interviewed by the company after MSHA had determined that
the 103(g) complaint was unfounded.
David Baer, a member
of the UMWA, provided further evidence that Franks and Hoy, not Moore, remember
the events as they occurred. Baer was
present in August when Franks and Hoy talked to Moore. (Tr. 64). Baer remembers that Hoy told Moore he wanted to
make a complaint about a fireboss and Moore asked Hoy if he was talking about Gary
Cortland. (Tr. 64). Moore said that he already knew about it. (Tr. 64-65).
Hoy asked Moore to look into it to see if the fireboss was doing his job. (Tr. 65).
On August 29, Baer observed Hoy ask Moore if Moore had followed up and looked
into it, and Moore said he was still looking into it. (Tr. 65).
Baer assumed they were talking about the same individuals during both encounters.
(Tr. 66). Baer agreed that Franks and Hoy were correct
in bringing the matter to Moore’s attention, since he is a member of the safety
committee. (Tr. 68-69). In Baer’s view, if there is a serious safety
matter, it is best to go to the safety committee and follow their instructions.
(Tr. 68-69, 71). William Schifko and David Moore disagree and
instead submit that miners do not necessarily have to bring an issue to a
safety committee member, but they may take it directly to management. (Tr. 93).
William Schifko, a
member of Emerald’s safety department, was present when Franks and Hoy met with
MSHA regarding the 103(g) complaint. (Tr.
73-74). Schifko was also involved in the
company’s investigation into the examinations of the belt and re-interviewed
the miners questioned by MSHA as well as some additional personnel. (Tr. 91).
Schifko opined that it is
important for the mine to know the names of persons accused of not doing their
jobs because the company must have sufficient evidence to take action against
them. He explained that the mine
conducted its own investigation after MSHA’s so that the mine could “dig a
little deeper” into the merits of the complaint. (Tr. 76).
One of the persons interviewed by MSHA, and by Schifko separately, was Mark
Cole. (Tr. 77). According to Schifko, Cole seemed nervous
when he spoke with MSHA, and it was apparent that Cole was confused. (Tr. 77-78, 90). Cole gave two dates for alleged incomplete
belt examinations, both in July, but no documentation, and no name of the
fireboss who failed to conduct the examinations. (Tr. 77). When Cole was re-interviewed by
Schifko, he changed his testimony from the earlier interview with MSHA and told
mine management that “he didn’t see anything.”
(Tr. 78). Schifko interpreted
Cole’s behavior and statements to mean that Cole had been “coerced” by others
to provide information in the initial interview. (Tr. 78-79). While his testimony on the issue was a bit
unclear, Schifko repeated that, as of the time of the hearing, he still didn’t have
a name. (Tr. 81). However, he did agree that once he received information
concerning the date and shift of the alleged failed beltline inspection, he
could determine who was responsible to conduct the examinations. (Tr. 81). So, in fact, Schifko had a good idea which
fireboss was being accused and he agreed that he told Hoy that he had an idea of
who it was. (Tr. 81). However, Schifko insisted that he must have a
name from Franks and Hoy in order to take any action. (Tr. 82).
I find Schifko to be a polished but disingenuous witness. He asserts that none of the 34 miners who
provided information to MSHA during the 103(g) investigation were
disciplined. However, when pressed, he
acknowledged that only three people made allegations about the fireboss;
Franks, Hoy, and Cole. (Tr. 97). Cole recanted and Franks and Hoy were
suspended. (Tr. 99).
The UMWA local
president, Anthony Swetz agreed that Franks and Hoy should not have withheld
the names of the firebosses that they accused. (Tr. 143). However, he did not address the behavior of
Moore and his failure to support Franks and Hoy and provide the information to
MSHA and the mine operator. Swetz
testified that the mine has discharged employees for not conducting adequate
examinations, but explained that the mine must have solid information to do so.
(Tr. 140-143). He opined that miners are not required to take
safety complaints to their union representative and that they may take the
complaints directly to mine management. (Tr. 145, 148). Swetz agreed that he would expect the safety
committeeman to investigate and, if there was some validity to the complaint, then
go to management. (Tr. 145). Swetz testified that the miners’ rights were
explained to Franks and Hoy by MSHA, and they were asked if they were comfortable
with everyone being present during the interviews, to which they both answered
that they were. (Tr. 146, 147, 149). Swetz did not think it was his obligation to
explain their rights any further since Franks and Hoy, like all UMWA members, were
aware of their rights. (Tr. 147, 151-152).
III. ANALYSIS[3]
Section 105(c)(1) of
the Act, 30 U.S.C. § 815(c)(1), provides that, a miner cannot be discharged,
discriminated against, or interfered with in the exercise of his statutory
rights because: (1) he “has filed or made a complaint under or related to this
Act, including a complaint . . . of an alleged danger or safety or health
violation[;]” (2) he “is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101[;]” (3) he “has
instituted or caused to be instituted any proceeding under or related to this
Act or has testified or is about to testify in any such proceeding[;]” or (4)
he has exercised “on behalf of himself or others . . . any statutory right
afforded by this Act.”
In order to establish
a prima facie case of discrimination under Section 105(c)(1), a complaining
miner must show: (1) That he engaged in protected activity; and (2) that the
adverse action he complains of was motivated at least partially by that
activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec’y on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Sec’y 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 (3d Cir. 1981).
The operator may
rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected
activity. . . . If the operator cannot rebut the prima facie
case in this manner, it nevertheless may defend affirmatively by proving that
it was also motivated by the miner's unprotected activity and would have taken
the adverse action for the unprotected activity alone.
Driessen v. Nevada Goldfields, Inc.,
20 FMSHRC 324, 328-329 (Apr. 1998) (citations omitted).
Factors to be
considered in assessing whether a prima facie case exists include the
operator’s knowledge of the protected activity, hostility or “animus” towards
the protected activity, timing of the adverse action in relation to the
protected activity, and disparate treatment.
Sec’y on behalf of Chacon v.
Phelps Dodge Corporation, 3 FMSHRC 2508 (Nov. 1981).
a. Protected
Activity
The Act’s
discrimination provisions provide miners with protections against reprisal for
certain protected activities in the hope that miners will be willing to aid in
the enforcement of the Act and, in turn, improve overall safety. While section 105(c)(1) does not include the
term “protected activity,” Commission cases have nevertheless found that the section
defines certain protected activities. An
individual covered by the Section engages in protected activity if (1) he “has
filed or made a complaint under or related to this Act, including a complaint .
. . of an alleged danger or safety or health violation[;]” (2) he “is the
subject of medical evaluations and potential transfer under a standard
published pursuant to section 101[;]” (3) he “has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or is
about to testify in any such proceeding[;]” or (4) he has exercised “on behalf
of himself or others . . . any statutory right afforded by this Act.” 30 U.S.C.
§ 815(c)(1).
The legislative
history of the Mine Act states that that Congress intended “the scope of the
protected activities be broadly
interpreted by the Secretary, and intends it to include not only the filing
of complaints seeking inspection under Section 104(f) or the participation in
mine inspections under Section 104(e), but also the refusal to work in
conditions which are believed to be unsafe or unhealthful and the refusal to
comply with orders which are violative of the Act or any standard promulgated
thereunder, or the participation by a miner or his representative in any
administrative and judicial proceeding under the Act.” S. Rep. No. 95-181 at 35 (1977) (emphasis
added). Moreover, the history notes that
“the listing of protected rights contained in . . . [what eventually became
section 105(c)(1)] is intended to be illustrative and not exclusive[, and that
the section should ] be construed expansively to assure that miners will not be
inhibited in any way in exercising any rights afforded by the legislation.” Id. The Commission and Courts have recognized the
“illustrative” as opposed to “exclusive” nature of the list provided in Section
105(c)(1) by adopting the “work refusal doctrine,” which is not explicitly
addressed in 105(c)(1). Simpson v. FMSHRC, 842 F.2d 453 (D.C.
Cir. 1988); Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(Oct. 1980); Sec’y on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981).
In order to sustain a
discrimination complaint, Franks and Hoy must first demonstrate that they have
engaged in an activity or activities that are protected by Section 105(c) of
the Mine Act. The record before me
clearly establishes that they both engaged in a protected activity when they
made a safety complaint to David Moore, a member of the UMWA safety committee,
when they provided information to MSHA during the course of the 103(g)
investigation, and when they provided information to Emerald during the mine’s
follow up investigation. I have found
that, on at least two occasions, Franks and Hoy made the complaint to Moore with
the more than reasonable expectation that the UMWA representative would take care
of the complaint. In addition, Franks
and Hoy were not required to provide information directly to the company or to
MSHA that they had already provided to the safety representative. The fact that they spoke with MSHA inspectors
and then participated in an investigatory meeting with MSHA, with Emerald
present, is also a protected activity.
In addition, the fact that they were asked by company management to
address the allegations contained in the 103(g) complaint, after MSHA had found
no violation, is further protected activity.
Emerald insists that the involvement of Franks and Hoy in the two
investigations may not be considered protected activity because Franks and Hoy refused
to give the name of the fireboss accused of failing to conduct an inspection of
the beltline. I find Emerald’s claim to
be without merit and instead, address it as an affirmative defense.
b. Adverse
Action
As a result of their involvement
in the 103(g) complaint, Franks and Hoy each received a seven day suspension. The parties agree that the suspension is an
adverse action. The parties have further
agreed to the amount of back pay that may be due as a result of both miners
being suspended.
c. Discriminatory
Motive
The connection
between the protected activities and the adverse action is the more difficult
issue. The Commission has determined
that the hostility or “animus” towards the protected activity, timing of the
adverse action in relation to the protected activity, and disparate treatment
may all be considered in determining the existence of a connection between the
protected activity and the adverse action.
Sec’y on behalf of Chacon v.
Phelps Dodge Corporation, 2 FMSHRC 2508 (Nov. 1981).
Having found that Franks
and Hoy engaged in protected activity, and that they were subject to adverse
actions on the part of Emerald, it is necessary to determine whether Emerald
was motivated, at least in part, by those protected activities to issue
disciplinary action in the form of a seven day suspension. The Commission has recognized that direct
evidence of actual discriminatory motive is rare. Short of such evidence, illegal motive may be
established if the facts support a reasonable inference of discriminatory
intent. Sec’y on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510–11 (Nov. 1981), rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398–99 (June 1984). As the Eighth Circuit analogously stated with
regard to discrimination cases arising under the National Labor Relations Act
in NLRB v. Melrose Processing Co., 351 F.2d 693, 698
(8th Cir.1965):
It would indeed be
the unusual case in which the link between the discharge and the (protected)
activity could be supplied exclusively by direct evidence. Intent is subjective
and in many cases the discrimination can be proven only by the use of
circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial
or direct, the [NLRB] is free to draw any reasonable inferences.
Franks and Hoy credibly
testified that the adverse action was close in time to the protected activity. In fact, the parties agree to the facts that
establish a timeline of the complaints made, involvement in both the MSHA and
Emerald investigations, all culminating in the suspension of the two miners.
I find that credible
evidence supports that Franks and Hoy suffered hostility as a result of their
actions, and were treated differently than other miners. A part of the circumstantial indicia of
discriminatory intent by a mine operator against a complaining miner includes
hostility towards the miner because of his protected activity and disparate
treatment of the complaining miner by the operator. Sec’y on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC at 2510. The
mine demonstrated hostility toward Franks and Hoy when mine personnel
repeatedly called the complainants into the office as part of an investigation
and demanded that they turn over the name of the fireboss about whom they
complained. Given that Moore was not
asked for the name, and that Schifko was seemingly aware of the miner about whom
the complaint was made, it is reasonable to infer that Emerald’s continued
questioning and harassment of Franks and Hoy amounted to hostility toward them
for making accusations against a fireboss.
In addition, Hoy explained that he was told by a co-worker that he had a
target on his back after making the complaint about the examinations of the
beltline. (Tr. 33, 51). Moreover, after Franks and Hoy explained that
they had followed the UMWA procedure and provided the fireboss’ name to the
safety committee representative, the mine failed to speak with Moore and
ascertain from him the name of the fireboss. Finally, both Franks and Hoy were under the
impression that the mine was aware of the fireboss named because another miner,
Cole, had reported his name. The mine
refused to acknowledge the right of Franks and Hoy to go through the safety
committee representative and harassed them for employing that protection. The miners utilized the avenue open to them,
making a complaint through a safety representative, to avoid the very thing
that happened to them, constant harassment and finally retaliation for
expressing concern over what they believed to be a fireboss’ failure to carry
out his duties.
Emerald asserts that Franks
and Hoy were not treated differently from other miners. It asserts that 34 miners were interviewed by
MSHA, and even more by the mine, but that none of those miners received any
adverse action. The mine argues that Franks
and Hoy would have been treated likewise had they been willing to provide the
name of the fireboss accused of failing to make a belt examination directly to
management instead of through the safety representative. I find it telling that Schifko acknowledged
that only three complaints were made, and one of those was recanted. The two that stayed true to their complaint, Franks
and Hoy, were the two who were disciplined. (Tr. 99).
I find that the circumstantial evidence points to the fact that Franks
and Hoy were disciplined, not for failing to provide information, but for
making a safety complaint and participating in the 103(g) investigation.
While it may be true,
as Emerald asserts, that Franks and Hoy could have refused to provide
information to MSHA with mine management present, or that they could have
brought the complaint about the fireboss to mine management directly, or even
that they could have provided the information privately to MSHA, it does not
negate the fact that they made a complaint and, as a result, were disciplined. Given the specific circumstances discussed
above, I find that Franks and Hoy have demonstrated a nexus between the adverse
action and the protected activity and, therefore, have proven a prima facie
case of discrimination.
d. Affirmative
Defenses
Having found that Franks
and Hoy have established a prima facie case of discrimination, I must now
consider whether Emerald disciplined both miners for unprotected activity and
“would have taken the adverse action for the unprotected activity alone.” Sec’y on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (Apr. 1981);
Sec’y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980).
The Commission has
enunciated several indicia of legitimate non-discriminatory reasons for an
employer's adverse action. These include
evidence of the miner's unsatisfactory past work record, prior warnings to the
miner, past discipline consistent with that meted out to the complainant, and
personnel rules or practices forbidding the conduct in question. Bradley
v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has explained that an
affirmative defense should not be “examined superficially or be approved
automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935,
1938 (Nov. 1982). In reviewing
affirmative defenses, the judge must “determine whether they are credible and,
if so, whether they would have motivated the particular operator as claimed.” Bradley
v. Belva Coal Co., 4 FMSHRC at 993. The
Commission has stated that “pretext may be found . . . where the asserted
justification is weak, implausible, or out of line with the operator's normal
business practices.” Sec'y on behalf of
Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).
Emerald argues that
the failure of a fireboss to conduct a mandated examination is a serious safety
issue, and that Franks and Hoy were disciplined solely for failing to provide
mine management the name of the fireboss whom they accused of not conducting an
examination of the belt. Emerald
attempts to analogize the situation in Sec’y
on behalf of Pack v. Maynard Dredging Co., 11 FMSHRC 168 (Feb. 1989) to the
case at hand. Emerald asserts that, in Pack, the Commission “upheld the
discharge of a miner for failing to report a serious safety violation to the
operator.” Cemex Br. 12. However, Pack
is easily distinguished. In Pack, unlike in the present matter, both
the judge and Commission relied upon that mine’s “established policy” requiring
mine personnel to report safety and health hazards to their “supervisor.” 11 FMSHRC at 171. In the case at hand, it is clear that Emerald
had no such policy that required all personnel to report safety and health
hazards exclusively to their supervisors.
Rather, it was accepted practice at the mine to report safety and health
hazards to mine management or members of the safety committee. Here, I have already found that the
complainants not only alerted Moore, a member of the safety committee, of the
issue, but also identified the fireboss.
There are no
allegations that Franks and Hoy had an unsatisfactory work performance history,
or were given prior warnings or discipline. The mine asserts that Franks and Hoy violated
the company policy by refusing to provide the name of a fireboss whom the
Complainants alleged did not conduct a required belt examination. I find the argument to be without merit. First, I have already found that Franks and
Hoy did provide the name, albeit through the safety representative for the
UMWA. Moreover, both Franks and Hoy learned
that Cole had provided the name to Schifko and Schifko acknowledged that, based
upon the date and the shift information he received, he was aware of the name
of the fireboss who allegedly missed the examination. There were two names of possible firebosses
mentioned at hearing, and both were interviewed by MSHA and mine
management. Even so, the mine questioned
Franks and Hoy and demanded that they directly provide the name of the fireboss
they accused, and continued to do so even after MSHA left the mine after it
found that the allegation regarding the belt examinations was without merit.
Instead of closing
the matter, based upon the many interviews and the findings of MSHA, Emerald re-interviewed
each witness, added more witnesses to the list, and continued to demand names
from Franks and Hoy. Emerald insists
that it did so with a valid justification; to determine if a fireboss had
committed a serious infraction by not making a required belt examination. If the information was so critical, I see no
reason why MSHA could not have questioned the UMWA safety representative who
was given the information by Franks and Hoy.
It appears that the mine questioned the union representative, Moore, but
there was no discussion at hearing regarding what information was sought or
provided by him. In fact, Moore
testified that he knew who Franks and Hoy were complaining about, and he had
already checked the dates, times and initials to see if the examination had
been done, and was satisfied that it had been.
In the end, Franks and Hoy were the only miners to make the complaint
about the fireboss and, tellingly, were the only miners who were disciplined. Cole originally made a similar complaint, but
it was withdrawn and he was saved from disciplinary action.
Based upon all of
these facts, I cannot agree that Emerald has demonstrated a legitimate business
purpose for the discipline. I find that
the stated business purpose is not credible, and is instead a pretext to punish
Franks and Hoy for making a complaint about a fireboss. While I agree that it is important for the
mine to discover whether or not a fireboss is conducting required examinations,
the mine had several opportunities to discover who was accused and, in my view,
based upon information gained from others, including information about the date
and the shift, the mine did know which fireboss was accused. Moreover, both MSHA and the state inspector conducted
thorough investigations and found no reason to believe that the fireboss had
not acted properly. There could be no
other reason to continue to harass Franks and Hoy about a name, except for the
purpose of retaliating against them for complaining about the fireboss. After carefully considering the credibility
of all witnesses, I find that Emerald did not have a legitimate business reason
to terminate Franks and Hoy, and that the mine’s affirmative defense is without
merit.
IV. PENALTY
The cases for Franks
and Hoy were brought by them individually with the assistance of the UMWA and,
therefore, no penalty has been proposed by the Secretary. Pursuant to Commission Procedural Rule 44(b),
29 C.F.R. § 2700.44(b), a copy of this decision is being sent to the Secretary
for the assessment of a civil penalty against Emerald Coal Resources.
V. ORDER
Emerald Coal
Resources is ORDERED to pay back pay
to Mark Franks in the amount of $1,168.68, and to Ronald Hoy in the amount of
$1,963.93, with interest at 8% from the date it was due.[4] Such payments shall be made within thirty
days of the date of this order. Emerald
shall, within thirty days of the date of this order, post this decision along
with a visible notice on a bulletin board that is accessible to each and every
employee, explaining that the company has been found to have discriminated
against an employee, that such discrimination will be remedied, and that it
will not occur in the future. The notice
shall inform all employees of their rights in the event they believe they have
been discriminated against. All reference
to the reprimand received by Franks and Hoy, and the reasons therefore, shall,
within thirty days of the date of this order, be removed from their respective personnel
files or other employment records. Such
reprimand will be removed and shall not be used or considered as a basis for
any future action against Franks or Hoy.
This case is referred to MSHA for assessment of a civil penalty.
/s/
Margaret A. Miller
Margaret
A. Miller
Administrative
Law Judge
Distribution:
Laura Karr, United Mine Workers, 18354 Quantico Gateway Drive, Triangle, VA 22172
R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty Ave. Pittsburgh, PA 15222
Ronald Hoy, 13 Bonasso Drive, Fairmont, West Virginia, 26554
Mark Franks, 253 Braddock Avenue, Uniontown, PA 15401
Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 1100 Wilson Blvd., 25th Floor, Arlington, VA 22209-3939
Jason Grover, Office of the Solicitor, U.S. Department of Labor, 1100 Arlington Blvd., 22nd Floor, Arlington, VA 22209
[1] The original decision in this matter was issued on June
3, 2013. Due to an oversight, Respondent
was ordered to make payment to the Complainants, post this decision and the
associated notice, and remove mention of the discipline from the employees
personnel files within “ten” days of the date of that decision. This Amended Decision corrects these errors
and orders that Respondent make payment, post the decision and notice, and
remove all references to and reasons for the reprimand within “thirty” days. June 3, 2013 remains as “date of decision” or
“date of order” for any calculation of time that relies upon the date the
decision was issued.
[2] The single complaint filed with the Commission was
done on behalf of both Franks and Hoy.
While both Franks and Hoy initially filed separate individual complaints
with MSHA, given that their complaints are essentially identical, they are both
being addressed in this single decision.
[3] Complainants, through the UMWA, spent much of their
post-hearing brief arguing that the Respondent “interfered” with their rights
under the Act. The brief separates the
interference into three alleged acts: (1)
Interference with the Complainant’s Mine Act rights by the presence of
Emerald managers at the Complainant’s meetings with MSHA inspectors; (2)
Interference with Complainant’s Mine Act rights by interrogating Complainants
regarding details of the safety hazard complaints made to MSHA; and (3)
Interference with Complainant’s Mine Act rights by discriminating against them
in violation of Section 105(c)(1) by suspending them from work. While I do not necessarily dispute the
alleged separate acts of “interference,” I address them together as one.
[4] The back pay calculation is based upon the
calculations in Respondent’s Exhibit 1, agreed to by the parties.