FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
721
19th STREET, SUITE 443
DENVER,
CO 80202-2500
303-844-5267/FAX
303-844-5268
June
3, 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 |
DECISION
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
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[2]
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
immediately 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.[3] Such payments shall be made within ten
days of the date of this order.
Emerald shall, within ten days 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 be immediately 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 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.
[2] 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.
[3] The back pay calculation is based upon the calculations
in Respondent’s Exhibit 1, agreed to by the
parties.