FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
TELEPHONE: (412)
920-2682
FAX: (412) 928-8689
August 1, 2012
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SECRETARY OF LABOR, |
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TEMPORARY REINSTATEMENT PROCEEDING Docket No. WEVA 2012-1448-D MSHA Case No. PINE-CD-2012-02 Mine ID: 46-08994 Mine: Deep Mine No. 8 |
DECISION AND ORDER
REINSTATING
| Appearances: | Virginia Fritchey, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd, 22nd Floor West, Arlington, VA on behalf of Complainant Clinton Ray Ward Mark E. Heath, Esq., and Dennise R. Smith, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd, East, P.O. Box 273, Charleston, WV for the Respondent |
| Before: | Judge Steele |
Pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor (ASecretary@) on June 9, 2012, filed an Application for Temporary Reinstatement of miner Clinton Ray Ward (“Ward” or “Complainant”) to his former position with Argus Energy WV, LLC, (“Argus” or ARespondent@) at its Deep Mine No. 8 (“the Mine”) pending final hearing and disposition of the case.
On June 5, 2012, Mr. Ward filed a Discrimination Complaint alleging, in effect, that his termination was motivated by his protected activity. [1] In the Secretary’s Application, she represents that the complaint was not frivolously brought and requests that an Order directing Respondent to reinstate Ward to his former position as the Third Shift Chief Electrician at the Mine.
Respondent
filed a request for hearing on July 16, 2012.
An expedited hearing was held in
For the reasons set forth below, I grant the application and order the temporary reinstatement of Clinton Ray Ward.
LAW AND REGULATIONS
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any protected right under the Mine Act. The purpose of the protection is to encourage miners Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.@ S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 (1978).
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990).
Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such, neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The substantial evidence standard applies.1 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of determining Awhether the evidence mustered by the miners to date established that their complaints are nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d at 744.
In order to establish a prima facie case of discrimination under section 105(c) of the Act, a complaining miner must establish (1) that he engaged in protected activity and (2) that the adverse action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
However, in
the instant matter, Complainant need not prove a prima facie case of
discrimination with all of the elements required at the higher evidentiary
standard needed for a decision on the merits.
Rather, the same analytical framework is followed within the Areasonable
cause to believe@ standard.
Thus, there must be Asubstantial evidence@
of both the applicant=s protected activity and
a nexus between the protected activity and the alleged discrimination. To establish the nexus, the Commission has
identified these indications of discriminatory intent: (1) hostility or animus
toward the protected activity; (2) knowledge of the protected activity; and (3)
coincidence in time between the protected activity and the adverse action. Sec=y
of Labor on behalf of Lige Williamson v.
CONTENTIONS OF THE
PARTIES
The Secretary contends that there is reasonable cause to believe that Ward’s dismissal was motivated by his exercise of protected activities as described in Section 105(c)(1) of the Mine Act. She identifies Ward’s safety complaints to Respondent’s agents as the actual reason that Ward was terminated and as evidence that the instant complaint is not frivolously brought. She further argues that the temporary reinstatement should be granted based on the standard the limited purpose of the hearings.
Respondent contends the Application for Temporary Reinstatement was frivolously brought. It argues that Ward was fired because there were numerous problems with his work performance, including his inability to wire a pump. It states that even if Ward complained about hooking up the P70 pump to the P40 float box, it was not a hazard because the pump simply would not work. It contends that Ward’s claims of significant amounts of water were impossible because both state and MSHA inspectors were in the area and no citations were written. Finally, it argues that the Secretary has not met her standard because no protected activity occurred in the instant case.
JOINT STIPULATIONS
The parties stipulate to the following:
1. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Federal Mine Safety and Health Act of 1977 (the “Act”).
2. Argus Energy WV, LLC (“Argus Energy”), was a “Limited Liability Company” at the time the relevant events took place.
3. Clinton Ray Ward was a “miner” as defined in Section 3(g) of the Act at the time the relevant events took place.
4. Clinton Ray Ward was employed by Argus Energy as a third shift chief electrician beginning on or about October 2011, and was discharged by Argus Energy WV, LLC on June 1, 2012.
5. The parties do not dispute that water was present behind the D set of seals on April 24, 2012.
6. The parties do not dispute that water was present in the return air course adjacent to the D set of seals on April 24, 2012.
7. On April 24, 2012, MSHA conducted an impact inspection at Argus Energy’s Deep Mine No. 8.
8. During the April 24, 2012 inspection, MSHA Coal Mine Inspector Dave Thompson issued Citation No. 8143298, a § 104(a) citation for a violation of § 75.364(f)(2), to Argus Energy because the examination record stated the return entry had not been traveled as part of the weekly examination.
9. The parties agree that Secretary’s Exhibit 1 (see attached) is a true and correct copy of Citation No. 8143298.
10. Citation No. 8143298 was terminated by MSHA Coal Mine Inspector Roger Workman on May 19, 2012.
11. The parties agree that Secretary’s Exhibit 1 shall be admitted into the record for the following limited purposes: 1) to establish that MSHA allegedly found an entry in the weekly examination record that water was present in the return air course adjacent to the D Set of seals and could not be traveled by the weekly examiner examining the return air course, 2) to establish the date upon which Citation No. 8143298 was issued, and 3) to establish the date upon which Citation No. 8143298 was terminated.
12. The parties make no representations about the correctness of MSHA’s finding with regard to Citation No. 8143298.
13. On May 19, 2012, MSHA released the No. 2 section for production.
14, Between April 24, 2012 and May 19, 2012, Argus Energy was unable to engage in coal mine productions activity at Deep Mine No. 8.
TESTIMONY AND
EVIDENCE AT HEARING
A. Prehearing Submissions
On June 5, 2012, Ward executed a Summary of Discriminatory Action, filed with his Discrimination Complaint. In his statement, he wrote, “ In May I made complaints about water behind seals to Safety Director and was terminated on June 1, 2012. I want my job back, back pay, health insurance back and expenses back while seeking employment.”
Submitted with the Secretary’s Application for Temporary Reinstatement was the June 6, 2012, Affidavit of Kelly S. Acord, a Special Investigator employed by MSHA. Under oath, the Special Investigator made the following statement:
1. I am employed as a special investigator
by the Mine Safety and Health Administration, United States
Department of Labor, in
2. As part of my official responsibilities, I investigate claims of discrimination filed by miners pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). In this capacity I have investigated the discrimination claim filed by Clinton Ray Ward on June 5, 2012. My investigation to date has revealed the following facts:
a. At all times relevant, Argus Energy WV, LLC (the “Operator”) was a corporation and is a “person” as defined in § 3(f) of the Mine Act.
b. The applicant, Clinton Ray Ward, was employed by the Operator as the third shift chief electrician at the Deep Mine No. 8 (the “mine”), and, therefore, was a “miner” within the meaning of § 3(g) of the Mine Act.
c. Ward’s employment with the Operator at the mine began on or about October 2011.
d. On June 5, 2012, Ward filed a discrimination complaint for being terminated on June 1, 2012 after making safety complaints to agents of the Operator. In Ward’s complaint and his June 23, 2012 statement, he contends that he was being discriminated for engaging in the protected activity of making repeated safety complaints to agents of the Operator in April and May of 2012. The Operator was made aware of those protected activities.
e. Specifically, Ward alleges that he became aware in March 2012 that water was impounded behind the seal outby the No. 3 section and water was present in the return entry adjacent to the affected seals and in active workings for 8 breaks.
f. Ward contends that the weekly examiner, John Dingess, told him that the Operator refused to provide pumps adequate to remove the water from the return entry from January to April 24, 2012.
g. On or about April 17, 2012, Ward maintains that he made a safety complaint to third shift mine foreman, Elza Maynard, about the danger posed by the water behind the seals.
h. Ward alleges that Maynard communicated this safety complaint to Mine Superintendent Grover Meade.
i. On April 24, 2012, MSHA conducted an impact inspection at the mine during which it issued 96 violations. Inspector Dave Thompson issued Citation No. 8143298, a § 104(a) citation for a violation of § 75.364(f)(2), because there was an excessive amount of water in the return entry which prevented it from being traveled as part of a weekly examination. Because the weekly examination could not be performed until the water was removed from the entry, miners were not allowed to enter the mine, except for the limited purpose of pumping water out of the cited area, until the violation was terminated 25 days later on May 19, 2012.
j. Ward asserts that, due to the fact he made a safety complaint to the Operator approximately one week before the April 24th inspection, Meade suspected him of making a safety complaint to MSHA which led to the impact inspection and the resulting 25-day-long shutdown of the mine.
k. On May, 21, 2012, MSHA released the No. 2 section for production.
l. On or about May 21, 2012, Ward contends that he told Safety Director Roger Slone that he had recently observed water spraying out of the bolts of the one of the affected seals’ water traps, which indicated to him that there was still a significant amount of water behind the seals. Ward alleges that Slone informed him that the mine had been released for production and he should not worry about problems at the seals.
m. Around the same time that Ward made the safety complaint to Slone, Ward states Meade ordered him to connect a P40 pump to a P20 pump box. Ward says he told Meade that it was unsafe to connect these two pieces of pump equipment. Ward alleges, when he refused to connect these pieces of equipment, Meade ordered Dingess to connect the P40 pump to the P20 pump box, which he did. Still believing this practice was unsafe, Ward unhooked the P20 pump box and replaced it with a P70 pump box.
n. A little more than a week later, on June 1, 2012, Ward avers that Meade fired him.
3. Based on my investigation to this date, I have concluded that there is reasonable cause to believe that Ward was discharged because he engaged in protected activities as a miner’s representative and made complaints about safety hazards. I have concluded that the complaint filed by Ward was not frivolous.
B. Testimony of
Ward began working at the Mine in October 2011, where he was hired as the third shift chief electrician. Tr. 18-19. Prior to working for Argus, Ward had worked in various mines and in various positions since 1993. Tr. 17-18. Importantly, he began working as an apprentice electrician sometime in 2004 while he was employed by Rock Springs Development and actually received his electrical card in 2007. Tr. 17, 42. As the third shift chief electrician, Ward was salaried and considered a member of Argus management. Tr. 19. His duties included overseeing his crew, checking the permissibility of the equipment, ensuring that equipment was running and conducting weekly and monthly examinations. Tr. 19, 43-44.
Ward testified that he was terminated from Argus on June 1, 2012 for discussing a safety concern about the water behind the seals [2] with Roger Slone (“Slone”), the Safety Director. Tr. 20-21. While Ward was conducting his weekly electrical examination and checking the KVA’s [3] in January 2012, he noticed that there was a lot of water that, at the time, was five bricks outby the seals into the working section. Tr. 22-23. He also stated that, at this time, the water was approximately waist deep, and the seals could not be seen because the water spanned about 350 to 400 feet in distance. Tr. 23. Ward admitted, however, that the box had no power, it was out of service and was located approximately twelve bricks outby the seals. Tr. 45-46.
Later, in February, Ward accompanied an MSHA electrical inspector who was checking the KVA’s back to the seals, and the water was six bricks, or approximately 600 feet, out and nearly knee deep at the KVA. Tr. 24-25. The inspector, however, did not note a water problem from January to March; although, a first quarter inspection would have been conducted during this time. Tr. 48. Ward admitted that he did not have the inspector accompany him back to the second power box where he observed the water. Tr. 49. After this inspection, Ward testified that he observed the water about six or eight more times. Tr. 26. He observed that “[i]t was dry all the way up to the seals.” Tr. 26. From this observation, Ward opined that this meant that the water was coming from behind the seals. Tr. 26. During these last six to eight trips to the seals, Ward testified that the water was eight bricks, 850-900 feet, past the seals outby. Tr. 26-27. He could not get to the seals because he estimated that the water was ten or eleven feet deep at that point and, from where he observed it, the water was boot deep. Tr. 27.
Based on this amount of water, Ward became worried that someone would become trapped or would be killed if the seal blew out. [4] Tr. 27-28. He sated that the seals blow out when the pressure behind them becomes too great. Tr. 28. Ward expressed these concerns to Elza Maynard (“Maynard”), the Third Shift Mine Foreman, who told him that Superintendent Grover Meade [5] (“Meade”) had been informed that the area needed pumped. Tr. 19-20, 28-29. Ward testified that Maynard continued to express his concern nearly once a week that the problem with the water was getting worse. Tr. 29.
Ward stated that the water inundation was finally corrected when MSHA shut the mine down on April 24, 2012, because weekly examinations could not be conducted, as reported by Examiner Johnny Dingess in the examination book. Tr. 20, 30; Stip. 8. Citation No. 8143298 was written as a § 104(a) citation as follows:
The weekly exam of the 003-0 MMU return entry was not traveled in its entirety on 04-23-2012 due to the return entry being flooded out and men were allowed to enter the mine without the weekly exam being completed.
Exhibit S-1.
It took the mine approximately twenty-one days to pump all the water out of the section and Ward and Maynard were tasked with ensuring that the pumps continued to run during the third shift. Tr. 30, 32. The citation was terminated on May 19, 2012 when the water had been removed from the return air course at the D set of seals and the area could be traveled. Stip. 10; Ex. S-1.
After the water was removed, Ward testified that he continued to work as usual, but production could not restart until MSHA inspector released the section. Tr. 31. Once production resumed, Ward and Maynard were called into Meade’s office. Tr. 33. At this time, Meade explained that Maynard was being demoted to section boss and that Ward would have to “ride in and ride out with the crew;” [6] although, no other members of management were subject to this requirement. Tr. 33-34.
Although Meade told Maynard and Ward that the inspection was not their fault, Ward believed that Meade was concerned for his own job and wanted to make sure that someone else received blame for the inspection and the 197 violations [7] found by MSHA. Tr. 34-35. Ward suspected that Meade blamed him for the inspection. Tr. 36. In a meeting with the third shift, Meade threatened to fire the whole crew if “things didn’t change.” Tr. 35. When Ward jokingly asked if Waylon, a third shift electrician who had moved to another mine had been the one to call MSHA, Meade replied, “No. I know who called in.” Tr. 36. While he made this comment, his eyes never left Ward. Tr. 36.
The Saturday before the mine was released for production, Ward testified that he and Maynard were pumping water from a jon boat and realized that a current under the boat was the result of water spraying out from around the S-trap, which is a valve behind the seals that lets the water out. Tr. 37. This indicated to Ward that the seal was leaking and there was a lot of water behind it. Tr. 37. Another employee was informed of the condition and, on Monday, Ward informed Slone, who replied, “they’ll be fine. Feds released us to run.” Tr. 37-38.
The seemingly final straw for Ward occurred when he expressed concerns about hooking up a P70 pump to a P20 starter box. Tr. 38. Ward testified that he initially tried to hook the configuration up, but it did not work. Tr. 38. However, he stated that the configuration is not permissible because the P20 starter box can not handle the amperage of the P70 pump. Tr. 38-39. He testified if the pump bridged out, it could electrocute a person handling it; however, he admitted under cross-examination that the P40 float box would simply not be able to handle the load from the pump and the power to the pump would kick immediately. Tr. 39, 70. Ward complained to Benton Harless, the maintenance supervisor, and Jake Bowen, Ward’s immediate supervisor, about the condition. Tr. 38, 57. He explained that both were electricians and knew that the configuration was a hazard. Tr. 38. Prior to any action taking place, however, Meade informed all the men that Dingess started the pumps. Tr. 38. Within two weeks of the demotion announcement and the incident with the pumps, Ward was terminated. Tr. 34.
During cross-examination, Ward admitted that the Mine contains as many as sixty-four pumps working all the time because the mine is basically a wet mine. Tr. 46-47. He further acknowledged that the seals are required to have a drain pipe in the lowest seal in elevation, referred to as the S-trap. Tr. 50. The testimony explained that the S-trap is designed to regularly drain out any water that occurs behind the seal and the water present on April 23, 2012 was water that would have drained those pipes and filled the area. Tr. 51. However, Ward reiterated that the valve was off while he was in the jon boat, causing the current underneath the boat and indicating that the seals were leaking.[8] Tr. 52-53. Ward further admitted that he did not attempt to fix the valve, but stated that “you could hardly get to it.” Tr. 54. Although Ward stated that there was still two and a half to three feet of water in the area at the end of his shift that morning, MSHA Inspector Roger Workman released that area for production at 2:00 the same day. Tr. 56.
Ward also testified during cross-examination that Meade explained to him during his termination meeting that this was the second time that there had been problems with the section being ready to run. [9] Tr. 82. He had previously been counseled by Meade in February concerning the same problem, and Ward was warned at that time that he would be terminated if the problems continued. Tr. 82. However, he stated that the night prior to the termination meeting, the state electrical inspector was in the Mine and Ward had to accompany him. Tr. 84. He stated that Meade and Bowen were both aware of this fact. Tr. 84.
C. Testimony of Johnny H. Dingess
Johnny Dingess is an airway traveler or examiner who has worked for Argus in this capacity for approximately four years, but has about six years of total experience in this particular position. Tr. 99. As an airway traveler, Dingess generally travels different areas of the mine in order to travel all of the air courses in seven days time. Tr. 99. He also has his mine foreman’s certification and has been a certified electrician since 2003. Tr. 100.
Dingess testified that there are two power boxes near the seals. Tr. 104-105. The one closer to the seals is approximately four bricks outby and it does not have power. Tr. 105. Because of this, the power box should not be examined under any type of weekly check. Tr. 105. He also agreed with Ward’s testimony that the box that received power was approximately twelve bricks outby the seals and is subject to weekly examinations as well as MSHA inspections. Tr. 105-106.
Dingess conducted the airway examinations during the relevant time period and is familiar with the area that was shut down due to water around the seals. Tr. 100. He testified that on April 28, 2012, Examiner Kay Atkins (“Atkins”) found water at the D seals, which were new, and he could not travel the airway. Tr. 101-102; Ex. R-1. Dingess explained that he had never previously experienced problems with water at these seals because the seals are designed with an S-trap that allows water to flow through a drain pipe if the area overfills. Tr. 102-104. He testified that he had never seen water all the way out to the old power box and was surprised by Atkins’s findings. Tr. 106.
Although Dingess was not present when MSHA cited the Mine and was not aware of how much water existed at that particular moment, he testified that he traveled to the area that evening and stated that the water was about knee deep and extended out about six or seven bricks. Tr. 119, 121. To resolve this problem, Dingess testified that he set some pumps in the area. Tr. 106. His best guess for the cause of the water accumulation was a fall on the back side of the seal, busting it out and forcing the water down. Tr. 123. He could not guess at when the fall may have occurred. Tr. 123-124.
Upon reviewing the record created by Atkins, MSHA pulled everyone out of the mine and shut the valves off at the seals. Tr. 106-107; Ex. S-1. MSHA issued a citation to the Mine later that day, but allowed the Mine to run its belts until the next morning. Tr. 107; Ex. S-1. At that time, the belts were again shut off and MSHA personnel remained underground to continue its inspection; after which, they allowed the pumping process to begin. Tr. 107-108.
Dingess testified that the two pumps were in the area testified to by Ward. Tr. 108. He stated that there was a P40 and a P70, but, contrary to Ward’s testimony, Dingess stated that he had never seen a P20 pump. Tr. 69, 108-109. When Dingess entered the area, he stated that he discovered that someone had attempted to install the P70 pump cable into the P40 float box. Tr. 109. He stated that because there is not enough power going to the pump, it simply cannot run in this configuration. Tr. 109-110. He did not, however, believe that there was any particular hazard associated with it; rather, the pump simply cannot start. Tr. 109-110. To correct the problem, Dingess simply moved the P70 cable to the P70 float box, which had the correct breaker. Tr. 110. He worked day shift, but to his knowledge, he did not recall anyone being told to hook the P70 pump up to the P40 float box. Tr. 110.
Dingess stated that the seals in question were inspected twice between January and April by both state and federal officials. Tr. 112. No citations were issued to the Mine during this time period and Dingess testified that if the water had existed as Ward claims at that time, the Mine would have been shut down. Tr. 112. He further testified that Ward had not made any safety complaints to him concerning the seals or any other matter. Tr. 113.
D. Testimony of Elza Maynard, Jr.
Elza Maynard has worked for Argus for a little more than a year, but has twelve years total experience in the industry and is certified as a mine foreman and a dust sampler. [10] Tr. 126. He began working at the Mine in September 2011 as the third shift mine foreman, but, since May 2012, is currently in the position of section boss. Tr. 127. As mine foreman, his duties were to ensure that the miners were doing their jobs and the stations were ready to run in the morning. Tr. 127. Ward worked with Maynard in this capacity as both under Maynard’s supervision and as head of maintenance. Tr. 127.
Maynard testified that during the period of January to April 2012, he was only down at the new seals one time to get a motor. Tr. 128. He asserted that he did not see any water around the seals at that time, but he stated that he would have seen it if it had been outby four or five bricks as Ward testified. Tr. 128. He further stated that he had never had any conversations with Ward concerning the seals or any other safety complaints from January until the time that MSHA issued the citation shutting down the mine. Tr. 131, 133. He denied that MSHA Investigator Charlie Bigley’s account stating that Maynard told him that Ward had complained about water behind the seals had ever taken place.[11] Tr. 135. In his written statement to Special Investigator Kelly Acord, Maynard wrote that he had never heard Ward make safety complaints and was not aware that he was in any way vocal about safety issues. Tr. 141. In his statement, he also wrote that Ward had not said anything about the seals until the mine was shut down. Tr. 141.
On April 24, 2012, after MSHA shut the Mine down, Maynard worked to pump the water out of the area of the seals for “[j]ust a couple of nights.” Tr. 128-129. He testified that the water was leaking around the cutoff valve of the S-trap at the flange. [12] Tr. 129. Dingess and Atkins actually fixed the problem. Tr. 130. He stated that the cutoff valve generally controls the flow of the water, but he was not sure if it is typically left open because he is not around the seals often. Tr. 130. He further testified that Ward would not have been assigned to work around the seals other than during the pumping process. Tr. 130-131.
On May 11-12, 2012, Maynard was informed that there was water across the track where the men were going to run some discharge line. Tr. 131. Maynard told Ward that the pump was down, but Ward was unable to repair it because he said the pump was “bad.” Tr. 131-132. Maynard reported the problem to Atkins who then sent Dingess in to repair the pump, which he was able to do. Tr. 133.
Maynard admitted to being demoted in mid-May, a couple of weeks prior to Ward’s termination. Tr. 137. He was demoted after the Mine resumed production and he testified that no reason was given for either his or Ward’s demotions. Tr. 137-138. Maynard believed that he was demoted because he was blamed for the some of the citations written to Respondent during the impact inspection. Tr. 139. However, he did not recall a conversation in which Meade commented that he knew who had called MSHA. Tr. 140. Maynard did not believe that he deserved the demotion. Tr. 139.
E. Testimony of Grover T. Meade
Grover T. Meade has been with Argus since June 2011 and has been the superintendent since he was hired. Tr. 145. His job duties are to oversee all three shifts at the Mine. Tr. 145. He testified that it was he, Harless and Bowen made the decision to terminate Ward’s employment due to his poor work performance. Tr. 145-146. He stated that the decision became final on the day prior to June 1, 2012 when they went to the section to run dust pumps, and none of the equipment was ready to be operated. Tr. 146. It took the miners several hours to be able to run coal. Tr. 146.
Meade also testified that this was not the first problem that the Mine experienced with Ward. Tr. 146. Roughly the same incident took place in February when MSHA arrived at the 003 Section to run dust samples. Tr. 147. The equipment was not ready and could not be run until approximately 1:00 that afternoon and the miners could not get enough footage in the coal to obtain accurate dust samples. Tr. 147. MSHA had to return at a later date to redo the samples. Tr. 147. Further, Meade testified that management would leave him lists of work to do overnight and it would not be done in the morning; and, when it was done, it was often incorrect. Tr. 147-148.
Meade stated that he was not involved in assigning Ward to fix the pumps or in giving him instructions of how to wire it. Tr. 149. He does know, however, that the pumps were not repaired the next morning and Dingess had to be sent to the area to fix the problem. Tr. 149. As for the seals, Meade testified that he had been to the area to look at panels where the Mine was to mine coal, but he did not notice any water prior to April 23, 2012 and has never seen it since. Tr. 150, 153-154. In fact, he had never seen flooding at seals in his fifteen years of experience in the mining industry. Tr. 164. He does not know how much water was pumped from the Mine in order to terminate the citation. Tr. 158.
Meade stated that he does not remember the conversation taking place in which he stared at Ward to let him know that he believed Ward had contacted MSHA. Tr. 156, 161. He asserts that he only discussed a “messed up” belt move with the third shift. Tr. 161. He further stated that Ward had never complained to him or anyone else in management either about water in the area at any time in 12012 or any other safety complaint. Tr. 150-151, 156-157.
Meade acknowledges that approximately two to three weeks before Ward was fired, a meeting was held with Ward and Maynard in which Maynard was demoted and Ward was told to ride in and ride out with the crew. Tr. 160-161. He stated, however, that he did explain to Ward and Maynard the reasons for the decisions that were made. Tr. 161.
ANALYSIS
A. Protected Activity
Section 105(c)(1) of the Act states in relevant part:
No person shall discharge or in any manner discriminate against […] or otherwise interfere with the exercise of the statutory right of any miner […] in any coal or any other mine subject this chapter because such miner […] has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator’s agent […] of an alleged danger or safety or health violation in a coal or other mine.
30 C.F.R. § 815(c)(1)(Emphasis added).
The record indicates that Ward engaged in protected activity. Ward indicates that he raised the issue of water near the seals several times with Maynard. Tr. 19-20. Water accumulations in mines are considered a hazard and, in fact, the employees were withdrawn and the Mine was shut down for twenty-five days so that the water could be pumped. Ex. S-1. Alerting management to a hazardous water condition is an activity protected under section 105(c) of the Act, thus, the undersigned finds that the Complainant engaged in protected activity.
Ward also alleges that he was terminated for complaining about the safety hazards of connecting the P70 pump to the P20 float box. However, the weight of the testimony indicates that this configuration would not be a hazard of any kind; rather, the equipment simply would not work. Tr. 109-110. Under cross-examination, Ward admitted that the P70 pump will not work when hooked up to the P40 float box because the power immediately kicks when it is turned on. Tr. 70. Based on the foregoing, the undersigned finds that no hazard existed and, therefore, Ward’s complaints about the pump configuration were not protected activity.
B. Nexus between Protected Activity and the
Alleged Discrimination
1. Hostility or Animus
Toward the Protected Activity
Direct
evidence of actual discriminatory motive is rare. Sec’y
of Labor on behalf of Hyles v. All American Asphalt, 19 FMSHRC 855, 860
(May 1997)(ALJ). Instead, it is much
more typical that the only available evidence is indirect. Phelps
Dodge, 3 FMSHRC at 2510. “Intent is
subjective and in many cases the discrimination can be proven only by the use
of circumstantial evidence.”
Ward testified that, after the water was pumped, he returned to his regular duties. Tr. 31. However, once the section was released for production, Ward and Maynard were called to Meade’s office where they both received demotions. Tr. 33-34. This indicated to Ward that Meade wanted someone to blame for the citations issued to Respondent during the impact inspection. Tr. 34-35. Subsequently, in a meeting with the third shift, Meade stated the entire shift was going to be fired if “things didn’t change.” Tr. 35. After a joke was made about whether someone who was no longer with the shift had been the one to call MSHA, Ward testified that Meade stared directly at him when he responded that he knew who had called. Tr. 36. Considering the testimony in the light most favorable to the Complainant, the undersigned finds sufficient evidence of hostility or animus toward the protected activity.
In his
closing argument, Respondent urges the Court to look to the Sec’y of Labor on behalf of Bussanich v. Centralia Mining Company
for guidance.
2. Knowledge of the
Protected Activity
Ward testified to several instances in which Respondent was alerted to his concern with the water accumulation near the seals. First, he testified that he discussed the issue with Maynard at length. Tr. 19-20. He also testified that Maynard had informed Meade, who replied that the area would have to be pumped. Tr. 28-29. He further states that Maynard expressed a growing concern with the water as well. Tr. 29.
Respondent argues
that its agents have stated that they had no
knowledge of Ward’s complaints. However,
the Commission had repeatedly instructed that it is not the judge’s duty nor is
it appropriate to resolve conflicts in testimony or to make credibility
determinations at this preliminary stage of the proceedings. Proppant
Specialist, LLC, 33 FMSHRC at 2385;
3. Coincidence in Time
between the Protected Activity and the Adverse Action
The
Commission has stated that it applies “no hard and fast criteria in determining
coincidence in time between protected activity and the subsequent adverse
action when assessing an illegal motive.
Surrounding factors and circumstances may influence the effect to be
given to such coincidence in time. All American Asphalt, 21 FMSHRC at 47 (quoting
Hicks v. Cobra Mining, Inc., 13
FMSHRC 523, 531 (Apr. 1991)). As such,
the Commission has noted that “[a] three week span can be sufficiently close in
time,” especially when there is evidence of intervening hostility, animus or
disparate treatment.
Ward stated that he began expressing his concerns about the water and continued to discuss these concerns with Maynard and Slone until April 2012. Tr. 22-25, 28-29. The Mine was evacuated and idled by MSHA on April 24, 2012. Respondent was not able to sufficiently pump the water to a level safe for production until May 17, 2012. Tr. 158. MSHA then released the Mine for production on May 19, 2012. Tr. 158; Stip. 10; Ex. S-1. Ward was subsequently terminated less than two weeks later. In light of this, the undersigned finds that there is a coincidence in time between the protected activity and the adverse action.
CONCLUSION
I have reviewed the entire record in this case and have carefully considered the contentions of the parties. In any subsequent proceeding, the Complainant may not prevail on the merits. However, based on the foregoing testimony and available case law, I am constrained to find that Complainant’s Application for Temporary Reinstatement was not frivolously brought.
ORDER
Based on the foregoing, it is hereby ORDERED that Complainant’s Application for Temporary Reinstatement is GRANTED. Accordingly, Argus Energy WV, LLC is ORDERED to REINSTATE Complainant Clinton Ray Ward to his former position as Third Shift Chief Electrician at the same rate of pay and with the same benefits that he received prior to his discharge.
/s/
William S. Steele
William S. Steele
Administrative Law Judge
Distribution:
Virginia Fritchey, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd, 22nd Floor West, Arlington, VA 22209-2247
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC,
/kmb
[1] Under the Act, protected activity includes filing or making a complaint of an alleged danger, or safety or health violation, instituting any proceeding under the Act, testifying in any such proceeding, or exercising any statutory right afforded by the Act. See Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981)
1 ASubstantial evidence@
means “such relevant evidence as a reliable mind might accept as adequate to
support [the judge=s] conclusion.@
[2] Seals are usually twenty foot concrete seals put in
between blocks. Tr. 21. Their purpose is to seal off old works so
that the operator no longer has to enter them to do gas checks, etc. Tr. 21-22.
Instead, these checks can simply be done at the seal. Tr. 22.
[3] A KVA is a power center from which the mine, pumps,
equipment, etc., receives its power. Tr.
24. It is rated according to
amperage. Tr. 25.
[4] Ward testified
that this already occurred in
[5] Ward testified
that Meade was referred to as “Cap Wedge” by the miners and Ward refers to him
as “Wedge” throughout the testimony. Tr.
19.
[6] Ward explained that the start time is 11:00 and he
was then forced to get on the bus with the other men. Tr. 33.
Then, when day shift between 6:30 and 7:00 in the morning, the third shift
was taken back out of the mine on the bus.
Tr. 33.
[7] The Affidavit of Kelly Acord states that the Mine was
issued 96 citations as a result of the inspection. See
Affidavit of Kelly S. Acord, 2(i).
[8] Ward testified that he didn’t have his feet in the
water, so he did not know exactly where the current was coming from. Tr. 55.
[9] There is some confusion in this testimony as to
exactly what was said. For the purposes
of a temporary reinstatement hearing, however, it is largely irrelevant.
[10] He was also certified as an EMT, but it lapsed due to
a lack of retraining. Tr. 126.
[11] MSHA Investigator Charlie Bigley interviewed Maynard
for roughly an hour on June 18, 2012.
Tr. 134. This interview was
recorded. Tr. 135.
[12] The flange is
where two pipes come together and are bolted.
Tr. 129.