.
MOUNTAIN TOP TRUCKING CO., INC.
January 23, 1997
KENT 95-604-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 23, 1997
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-604-D
on behalf of LONNIE BOWLING, : MSHA Case No. BARB CD 95-11
Complainant :
v. : Mine ID No. 15-17234-NCX
: Huff Creek Mine
MOUNTAIN TOP TRUCKING CO., INC., :
ELMO MAYES; WILLIAM DAVID RILEY; :
ANTHONY CURTIS MAYES; and MAYES :
TRUCKING COMPANY, INC., :
Respondents :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-605-D
on behalf of : MSHA Case No. BARB CD 95-11
EVERETT DARRELL BALL, :
Complainant : Mine ID No. 15-17234-NCX
v. : Huff Creek Mine
:
MOUNTAIN TOP TRUCKING CO., INC. :
ELMO MAYES; WILLIAM DAVID RILEY; :
ANTHONY CURTIS MAYES; and MAYES :
TRUCKING COMPANY, INC., :
Respondents :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-613-D
on behalf of WALTER JACKSON : MSHA Case No. BARB CD 95-13
Complainant :
v. : Huff Creek Mine
:
MOUNTAIN TOP TRUCKING CO., INC., :
ELMO MAYES; and MAYES TRUCKING :
COMPANY, INC., :
Respondents :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-615-D
on behalf of DAVID FAGAN, : MSHA Case No. BARB CD 95-14
Complainant :
v. : Huff Creek Mine[1]
:
MOUNTAIN TOP TRUCKING CO., INC., :
ELMO MAYES; WILLLIAM DAVID RILEY :
ANTHONY CURTIS MAYES; and MAYES :
TRUCKING COMPANY, INC., :
Respondents :
DECISION ON LIABILITY
Appearances: Donna E. Sonner, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for the
Complainants;
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky,
Inc., Lexington, Kentucky, for the Complainants;
Edward M. Dooley, Esq., Harrogate, Tennessee, for
the Respondents.
Before: Judge Feldman
These consolidated discrimination proceedings are before
me as a result of complaints filed by the Secretary on behalf
of Lonnie Bowling, Darrell Ball, Walter Jackson and David
Fagan, pursuant to section 105(c)(2) of the Mine Safety and
Health Act of 1977 (the Act), 30 U.S.C. � 815(c)(2). The
complaints were filed against the captioned Respondents,
Mountain Top Trucking Company, Inc., (Mountain Top), Mayes
Trucking Company, Inc., (Mayes Trucking), Elmo Mayes (Elmo),
Anthony Curtis Mayes (Tony); and William David Riley (David
Riley). Also before me are amended discrimination
complaints, filed by the Secretary on September 15, 1995,
seeking to impose total civil penalties of $9,000 on the
respondents, consisting of a $3,000 civil penalty for each
of the three alleged violations of section 105(c) that are
the subject of these proceedings.
On October 5, 1995, I issued a Decision ordering Mayes
Trucking, as the successor of Mountain Top, to temporarily
reinstate Bowling to his former position as a haulage truck
driver at the same rate of pay and with the same work hours
as the other truck drivers at the Huff Creek mine site.[2]
17 FMSHRC 1695, 1709. Bowling was never reinstated and the
Secretary brought no action in his behalf to enforce the
temporary reinstatement decision.[3]
The reinstatement decision determined that Mayes Trucking
was a proper party to these proceedings. As discussed
herein, the reinstatement decision also determined that
Mayes Trucking was the successor to Mountain Top Trucking,
and, as successor, Mayes Trucking is liable for the
discriminatory conduct of Mountain Top. The temporary
reinstatement decision was not timely appealed and has
become final. Mayes Trucking Co. v. Secretary of Labor and
FMSHRC, No. 95-4170 (6th Cir. April 19, 1996).
Although these discrimination complaints were brought on
behalf of the complainants pursuant to section 105(c)(2) of
the Act, Tony Oppegard appeared on behalf of the
complainants as their personal counsel. Commission Order,
18 FMSHRC 487 (April 1986). Edward M. Dooley appeared on
behalf of all of the respondents in these proceedings.
These discrimination cases were consolidated for hearing
by Order dated February 6, 1996. The hearing was convened on
three separate occasions in June, July and August 1996.[4]
On June 11, 1996, the initial hearing day, the Secretary and
Mr. Oppegard moved to withdraw the discrimination complaint
of David Fagan. The motion to withdraw was granted on the
record and Fagan's complaint docketed as KENT 95-615-D shall
be dismissed.
(I, 35-37).
The hearing in the Bowling and Ball complaints was held
on June 11 through June 14, 1996, and July 16 through July 18,
1996. The hearing in the Jackson complaint was held on
August 7 and August 8, 1996. During the course of these
proceedings, to avoid the repetition of evidence, I ruled
that any pertinent evidence adduced during the Bowling and
Ball hearing was applicable to Jackson and vice-versa.
(III, 299-300).
The parties have filed thorough post-hearing proposed
findings and conclusions, and replies. These post-hearing
filings have been considered in my disposition of the issues
raised in these proceedings.
Statement of the Case
Bowling and Ball assert that Riley and Mountain Top
discharged them on March 7, 1995, in violation of section
105(c) of the Act because of their good faith, reasonable
refusal to continue driving their coal trucks after they
became exhausted and fatigued as a result of working
excessive and unsafe hours.
Bowling and Ball were subsequently called back to work by
Mountain Top after they filed discrimination complaints with
the Mine Safety and Health Administration (MSHA) as a result
of their March 7, 1995, discharges. Ball argues that after
having been briefly reinstated to his truck driving job by
Mountain Top, he was constructively discharged on March 28,
1995, when he was compelled to quit because of intolerable
working conditions imposed upon him by the company.
Bowling contends that, although he agreed to return to
work after he had filed his discrimination complaint, he was
never actually reinstated because Mountain Top would not
provide him with a safe truck to operate. Thus, Bowling
argues that the respondents are liable under section 105(c)
as a result of his unlawful discharge on March 7, 1995. In
the alternative, Bowling argues, he too was constructively
discharged on March 28, 1995, in violation of section
105(c), when he was compelled to quit because of intolerable
working conditions.
Jackson maintains that Elmo Mayes and Mountain Top Trucking
discharged him on February 17, 1995, in violation of the
anti-discrimination provisions of section 105(c) of the Act
after he refused to continue operating a coal truck that he
reasonably and in good faith believed was unsafe to drive.
The discrimination complaints of Bowling and Ball are
factually similar and involve contemporaneous events. The
alleged discrimination suffered by Jackson occurred at a
different time and involves circumstances and issues that
are distinguishable from the Bowling and Ball cases. Thus,
the Bowling and Ball complaints will be addressed separately
from the complaint filed by Jackson.
Findings of Fact
Mountain Top is incorporated in the State of West Virginia.
Its corporate officers are Tommy C. (Kip) Bays, President,
and his son, Tommy Bays, Jr. Mayes Trucking is also
incorporated in the State of West Virginia. Tony Mayes is
the corporate President and his wife, Mary Mayes, is the
Secretary. Mountain Top and Mayes Trucking leased their
haulage trucks from E&T Trucking, a sole proprietorship
owned and operated by Elmo Mayes, Tony's father. E&T
Trucking has approximately 40 trucks registered to it in the
name of Elmo Mayes, d/b/a E&T Trucking. E&T Trucking is the
registered operator in the State of Kentucky for fuel tax
purposes. Mountain Top and Mayes Trucking do not own any
trucks.
From 1991 until 1993 Mountain Top hauled coal in Mount
Carbon, West Virginia from the Cypress Mine at Armstrong
Creek. Mayes Trucking also hauled coal from the Cypress
mine site during this period. The trucks operated by
Mountain Top and Mayes Trucking were leased from Elmo Mayes.
On July 12, 1993, Mountain Top contracted with Lone Mountain
Processing, Inc., (Lone Mountain) to haul coal from Lone
Mountain's Huff Creek mine, an underground mine located
immediately off State Road 38 at Holmes Mill in Harlan
County, Kentucky, to Lone Mountain's processing plant at St.
Charles in Lee County, Virginia. Mountain Top operated
approximately 30 trucks to haul Lone Mountain's coal from
the Huff Creek mine. Mountain Top continued to lease its
trucks from Elmo Mayes. Helen Mayes, Elmo's wife, signed
and issued the pay checks for Mountain Top's employees.
Mountain Top's truck lot, where trucks are parked for the
night, and where trucks are repaired, is located off the
haul road directly across from the scale house at Lone
Mountain's processing plant. Each morning the truck drivers
depart from the truck lot for Huff Creek to begin haulage
operations.
The Huff Creek facility is approximately 7-1/2 to 8 miles
from the processing plant. Upon arriving at the mine, the trucks
would line up to be loaded. After loading, the haulage
truck drivers drove the first 2-1/2 miles on Route 38, a 2-lane
public road maintained by the State of Kentucky. The
drivers then exited the state road onto a gravel haulage
road maintained by Lone Mountain. The drivers traveled this
haulage road up and over a mountain down to the dumping
point in Virginia, a distance of approximately 6 miles. The
haulage road had steep grades and sharp curves. There were
areas called "switchbacks" where the road was only wide
enough for the passage of one truck.
There were usually 35-40 coal trucks driving simultaneously
on the haul road, which consisted of 20-30 trucks operated
by Mountain Top as well as 10-12 trucks operated by Hillis
Breese, another haulage contractor.[5] (I, 403). Lone
Mountain used a grader to smooth out bumps and potholes on
its haulage road. (I, 403).
Upon approaching the dump site destination, the trucks would
line up to be weighed at Lone Mountain's scale house which
was located approximately .3 mile from the dump site. After
being weighed, the drivers would proceed to the dump site.
The waiting time for loading, weighing and unloading varied.
For example, Ball stated waiting time for loading varied
from 2 to 8 minutes. (I, 155-56). There were presumably
similar waiting times during the weighing and unloading
process. The entire round trip from Huff Creek to the dump
site, including the loading and unloading process, took
approximately 1 hour and 15 minutes. Truck drivers
communicated with each other, with Mountain Top management,
and with the scale house, via CB radio.
The haulage hours were determined by Lone Mountain based
on its scale house operating hours. The scale house hours were
determined by Craig Mullen, Lone Mountain's preparation
plant manager. The scale house always opened at 6:00 a.m.
Mullen would convey the cutoff time to Bruce Kelly, Lone
Mountain's scale man. Kelly stated that normal cutoff time
was between 5:00 and 6:00 p.m. The same cutoff time applied
to Mountain Top and Hillis Breese trucks. (III, 131).
The "cutoff" time does not refer to the drivers' quitting
time. Rather, it is the time when a cutoff truck is
designated to make the last round trip to load and unload a
truck of coal. For example, if the cutoff time is 5:00
p.m., the truck passing the scale house at 5:00 p.m. must
return to the mine for the last load of coal. This cutoff
truck will return to the scale house at approximately 6:15
p.m. All truck drivers passing the scale house after 5:00
p.m. that are behind the designated cutoff truck proceed to
the truck lot to end their workday.
Kelly would designate the cutoff truck according to the
cutoff schedule established by Mullen. Kelly experienced
resentment from truck drivers who were designated as cutoff.
Therefore, Kelly began communicating the cutoff time to
David Riley, Mountain Top's truck boss, so that Riley could
select and inform the cutoff driver.
In the fall of 1994, Mountain Top truck drivers generally
reported to the truck lot between 5:00 and 5:30 a.m so as to
return to the scales when they opened at 6:00 a.m. As
previously noted, the "cutoff" time, established by Lone
Mountain, was between 4:00 and 6:00 p.m. Mountain Top paid
truck drivers $13.00 per load of coal. Drivers were paid
$6.00 per hour for down periods when trucks were being
repaired.
Lone Mountain was dissatisfied with Mountain Top's haulage
production. Consequently, Mountain Top's contract was
extended for only six months on October 12, 1994. This
relatively brief contract extension apparently placed
additional pressure on Mountain Top to satisfy Lone
Mountain's haulage requirements.
Near the end of December 1994, David Riley had a meeting
with the truck drivers and informed them that from that
point starting time was promptly at 5:00 a.m. However,
there was no change in the normal 6:00 a.m. opening of Lone
Mountain's scales.
In late January or early February 1995, Lone Mountain opened
a new section of the Huff Creek mine. Contemporaneous with
the opening of this new section, inclement snowy and icy
conditions interfered with Mountain Top's normal haulage
operations. Consequently, Lone Mountain's coal stockpile
increased substantially.
Lone Mountain pressured Mountain Top to increase haulage
in order to reduce its stockpile. In order to comply with Lone
Mountain's demand, Mountain Top's truck drivers were
required to haul more loads per day. Thus the cutoff time
got progressively later: from 6:00 to 8:00 p.m. During
February 1995, it was not unusual for Mountain Top's drivers
to work 15 to 16 hours per day 6 days per week. Kelly
testified he recalled some evenings in February 1995 when
the last load passed the scales as late as 10:30 p.m. These
long work hours continued into mid to late March. As spring
approached and the stockpile receded the normal cutoff time
was moved back to between 4:00 and 6:00 p.m.[6] The
complaints of Bowling and Ball must be viewed in the context
of this factual background.
**FOOTNOTES**
[1]: The Huff Creek mine and the Darby Fork mine are
essentially adjacent mine sites located along State Road 38.
Previous captions in these proceedings noted Darby Fork as the
mine site. The caption has been corrected to reflect the
complainants were engaged in hauling coal from the Huff Creek
facility.
[2]: Mayes Trucking was also ordered to reinstate Fagan.
However, the underlying discrimination complaint filed by Fagan
has been withdrawn. The Secretary withdrew the application for
temporary reinstatement filed on behalf of Jackson. Ball did not
seek temporary reinstatement.
[3]: The transcript and exhibits in the temporary
reinstatement proceedings conducted on August 23 and August 24,
1995, are incorporated by reference and have been considered in
the disposition of these discrimination matters.
[4]: The hearing transcripts for June, July and August are
cited as Volumes I, II and III, respectively.
[5]: The trucks operated by Hillis Breese hauled coal from
Lone Mountain's Darby Fork mine, located along Route 38,
approximately 1 mile from the Huff Creek mine. The Breese trucks
were weighed at the same scale house and they unloaded their coal
at the same dump site as the Mountain Top trucks.
[6]: Kelly testified the average cutoff time during the
previous two years was between 4:00 and 6:00 p.m. (I, 554-55).
The Bowling and Ball Discrimination Complaints
Everett Darrell Ball was hired by Mountain Top trucking in
July 1994. Lonnie Bowling was hired by Mountain Top in August
1994.
Shortly after Ball was hired, his assigned truck was
taken out of service for repair. After a week of reporting to
work with nothing to drive, Ball asked Riley for a "lay off
slip." Ball returned to work for Mountain Top approximately
two months later.
When Ball returned to work in November or December 1994,
he testified there was no particular set starting time,
although truck drivers routinely reported in the early
morning hours. Bowling testified the normal starting time
was 5:00 a.m. Consistent with the testimony of scale man
Kelly, Ball and Bowling testified that the normal cutoff
time, prior to the onset of bad winter weather and the
increase in the size of the stockpiled coal, was between
4:00 and 6:00 p.m. Ball estimated the normal cutoff was
"probably five o'clock, on average." (I, 215-16, 405, 467).
Bowling and Ball's duties included general preshift
inspections and minor maintenance such as "keeping the tires
and the wheels tight and the oil levels checked and the
water fluids." (II, 71). Truck drivers routinely completed
checkoff slips noting any truck defects or other maintenance
problems experienced during the shift. Each driver
submitted his checkoff slip detailing his truck's condition
at the end of each workday when the truck was parked in the
truck lot.
Bowling and Ball testified about the challenging nature
of the haulage trip. They related that route 38 is narrow and
winding. They described Lone Mountain's haulage road as
very steep with an almost continuous up or down grade. Ball
stated "it was one of the roughest hauls I've ever been on
in my life, I think." (II, 75). Bowling stated the haul
road was in "real bad shape" in February and March 1995.
Bowling and Ball did not work for three days in February
1995 because of snow.
Bowling and Ball routinely drove to work together. They
arrived at the truck lot at approximately 5:00 a.m. They
would preshift their trucks and start them to allow for
warm-up and to let the air build up. They would then drive
the trucks across the mountain to Huff Creek where they
would load for the first return trip. They would continue
to make return trips until the 4:00 to 6:00 p.m cutoff.
Ball stated it took between 30 to 40 minutes after the last
scale reading to finish work. During this time, Ball dumped
his last load, drove to the truck lot, spent approximately
20 minutes fueling his truck, completed his checkoff list,
and turned in his time sheets.
As discussed above, Bowling and Ball testified about the
significant increase in the length of the workday beginning
in February 1995. They stated it was not uncommon to work
14 to 16 hours per day from February until early March.
Ball stated in February and early March 1995, Big Dave
(David Riley) was the boss if he was alone. Riley deferred
to Tony Mayes if Tony was at the job site. Both Riley and
Tony Mayes deferred to Elmo Mayes if he was present at the
mine site. Elmo Mayes had a two-way radio at his home that
was capable of communicating with Riley in his truck. Both
Riley and Kip Bays had worked for Elmo Mayes in the past.
Beginning in February 1995, Bowling and Ball periodically
complained to David Riley, Tony Mayes and Bill Lefevers, the
loader man, about the long hours and the road conditions.[7]
In fact, most drivers complained about the extremely long
workday that was required during this catch-up period.
Riley responded that when they got "caught-up" the company
would do what it could to cut back the hours - but the
cutoff time would still be between 5:00 and 6:00 p.m. (I,
115).
Bowling and Ball discussed the long hours. They decided to
call the State Of Kentucky's Division of Motor Vehicle
Enforcement to complain about the long working hours at
Mountain Top Trucking. Major Michael Maffett testified that
he received calls from Bowling and Ball. Ball's telephone
records reflect calls to Maffett on February 21 and March 2,
1995. Bowling and Ball complained that Mountain Top's long
hours "would cause somebody to get killed." (I, 90). As an
initial matter, Maffett determined Mountain Top Trucking had
no Kentucky Fuel Tax License. Maffett determined that
Mountain Top was operating under the Fuel Tax License issued
to Elmo Mayes d/b/a E&T Trucking. (I, 287).
Maffett told Bowling and Ball there were Federal and State
laws that governed how many hours truck drivers could drive.
For example, Maffett advised them of 49 C.F.R. Part 395 of
the Department of Transportation (DOT) regulations
concerning 10 hour, 15 hour, and 60/70 hour service hour
limitations. Maffett explained a truck driver cannot drive
after having driven ten hours, without an eight hour
qualifying break. A driver cannot drive after having been
on duty 15 hours. If a company operates six days per week,
drivers cannot drive after having been on duty 60 hours in
seven days. Similarly, if a company operates seven days a
week, a driver cannot drive after having been on duty 70
hours in eight days. (I, 292; Gov. Ex. 1; 49 C.F.R.
� 395.1).
Although not a DOT official, Maffett opined that the ten
hours driving limitation was determined based upon the
period a truck was in gear. Maffett was uncertain about
the applicability of this DOT regulation to situations where
drivers wait to load and unload throughout the day.
However, the applicable DOT regulations provide all time
spent loading and unloading a vehicle as "on-duty time"
rather than actual "driving time."
49 C.F.R. � 395.2.
Moreover, the record is nclear with regard to DOT's
application of this regulation to the 8-1/2 mile trip in this
case, which is comprised of 6 miles over a private road.
The complainants did not call a DOT official to testify in
these proceedings to explain how its Part 395 Hours of
Service regulations impact on short haulage operations with
frequent loading and unloading throughout the day.
Maffett considered their complaint to be a "labor" issue
because Ball expressed the opinion that he would be
terminated if he refused to drive. Maffett recommended that
Bowling and Ball contact the Occupational Safety and Health
Administration in Atlanta, Georgia. Maffett also
recommended that they file a written complaint with the
Federal Highway Administration's Office of Motor Carriers
located in Frankfort, Kentucky. No one from Maffett's
office investigated Bowling and Ball's complaint. (I, 296).
To the best of Maffett's knowledge, the respondents were
never cited by any state or federal authorities for any
violations related to excessive working or driving hours.
On the morning of March 7, 1995, Bowling and Ball decided
to confront management about the excessive hours. Later that
day, they heard over the CB radio that cutoff time was 7:00
o'clock. At approximately 5:30 p.m., Ball pulled into the
truck lot to talk to Riley. Ball was followed into the
truck lot by trucks driven by Bowling and Leonard McKnight.
Ball and Bowling told Riley they couldn't continue working
these hours because they were exhausted and it was unsafe.
They informed Riley they had contacted DOT and that they had
been advised about a ten hour workday rule.
Ball testified that Riley was sympathetic until Elmo Mayes
pulled into the truck lot. They informed Elmo of their
concerns. Elmo responded "the cutoff time tonight is 7:00
o'clock, you get your ass back out there and haul coal."
They informed Riley and Elmo Mayes that they had called DOT
and that DOT said they were not supposed to be hauling such
long hours. Ball stated Riley said he "didn't give a shit
what the DOT said" because they worked for him. Ball
further testified Riley told them if they couldn't work the
hours they were supposed to work, "that they didn't need us
and to get our ass to the house." (I, 116).
Bowling asked Riley, "if I park up, am I fired?" Riley
replied, "I can't make it any plainer, you work when I tell
you to work or I don't need you." Although McKnight
supported Bowling and Ball's concerns, he decided to return
to work to avoid losing his job. (I, 118, 241).
Bowling and Ball turned in their time sheets. Ball
testified Elmo Mayes "hollered and told us both, said, don't
bring your ass back." (I, 120).
Bowling and Ball filed discrimination complaints with MSHA
on March 9, 1995. Their discrimination complaints sought
the following:
Back-pay for all lost wages, jobs back with regulated
10 hour work days with required breaks and lunch
periods for all employees and we request our regular
trucks back, Bowling truck #144 and Ball truck #147.
We also request that load sheets be required to reflect
starting and stopping times. (Gov. Ex 9).
Bowling and Ball's complaints were investigated by MSHA
investigator Gary Harris. On March 22, 1995, following Harris'
interviews with company personnel, Tony Mayes telephoned Harris.
Tony Mayes explained to Harris that everyone at Mountain Top was
under a lot of pressure because of the backed up coal. Tony Mayes
conceded that everyone had been complaining about the long hours.
He informed Harris that Bowling and Ball were "good truck
drivers" and he expressed a willingness to work things out.
(III, 473-75).
Shortly after talking to Harris on Wednesday, March 22,
1995, Tony Mayes called Bowling and Ball to offer them their jobs
back. Tony Mayes called Bowling at home first. Bowling stated
he thought he was unjustly fired. Tony Mayes told him he was
trying to get him back to work so that things could be worked
out. Bowling agreed to return to work the following day on
Thursday, March 23, 1995.
Tony Mayes then called Ball and left a message with Ball's
wife. Ball was not home because he was traveling to Bowling's
house. When Ball arrived at Bowling's house, Bowling informed
him that Tony Mayes had just called to offer their jobs back.
Ball returned to his home to return Mayes' call. Ball agreed to
return to work. (I, 121). There is conflicting testimony
concerning on which day Ball agreed to return. Tony Mayes and
Riley testified Ball agreed to return to work on Friday, March
24, 1995. (II, 331, 477; Ex. R-4). Ball testified he did not
agree to return to work until Monday, March 27, 1995, because he
"didn't have any money for gasoline, and [he] had an appointment
to get [his] CDL license upgraded in Somerset and I already
borrowed a truck to do so." (I, 121).
Bowling had 20 years experience as a truck driver. He was
somewhat familiar with the Federal regulations concerning
driving hours and time. (I, 452). Bowling concluded, based
on the information provided by Major Maffett, that upon his
return to work, he would work "ten hours, not one minute
longer." (I, 414, 419, 456). Thus, Bowling believed that
an appropriate quitting time was 3:00 p.m. on days when he
began driving at 5:00 a.m. without significant out-of-
service interruptions. (I, 490). Ball also was unwilling
to work significantly more than ten hours per day. (I,
126).
Bowling reported to work at approximately 5:00 a.m. on
Thursday, March 23, 1995. Tony Mayes and Riley testified
that they informed Bowling he would be driving truck #139.
Prior to Bowling's March 7, 1995, discharge he generally
drove truck #144 which was a newer 1989 model in better
condition. (I, 426, 663). Bowling asked Mayes why he
couldn't have his regular truck back. Mayes responded that
he didn't want to cause any conflict with his drivers. (I,
426).
Bowling testified he told Tony Mayes truck #139 "probably
wouldn't pass inspection" because he didn't think it was
tagged (had license plates)." (I, 427). Bowling contends
he was concerned about the truck's wipers and lights.
Bowling also was concerned about a broken wheel stud on the
rear wheel. Mountain Top truck mechanic William Bennett
testified he did not discuss the operational condition of
truck #139 with Bowling on the morning of March 23, 1995.
(I, 657). In this regard, Bowling conceded he never
inspected #139 on the morning of March 23. His objections
to driving it were based on "his previous experience with
the truck." (I, 448-49).
Riley and Mayes indicated Bowling left the site shortly
after his arrival at 5:00 a.m. Bowling testified he left
the truck lot at approximately 7:30 to 8:00 a.m., after
having waited for Tony Mayes to arrive at work. (I, 428).
When Bowling departed, Mayes and Riley testified that
Bowling informed them that he would not drive truck #139,
and that he would wait on MSHA's investigative decision.
(II, 331, 477-78).
Tony Mayes testified that he called investigator Harris
after Bowling left on March 23 to inform him of the
situation. Harris told Mayes he would talk to Bowling.
(II, 479).
Mayes and Riley indicated Bowling did not report to work
or otherwise contact them on Friday, March 24, 1995. Bowling
also testified he did not show up for work on March 24.
Bowling stated on that morning he "called in sick to the
guard shack because that was the quickest way to get in
touch with David Riley." (I, 429). There is no evidence that
Bowling ever spoke directly to Tony Mayes or Riley to
provide an explanation for his absence on March 24, 1995.
Although Tony Mayes testified that Ball had agreed to return
to work on Friday, March 24, 1995, Ball also did not report
to work on that day. Mayes testified that Ball left a
telephone message on March 24 with someone at the mine
indicating he would not come to work because he was waiting
on a check, and he had no gas money. Ball denies making
this telephone call because he maintains that he did not
agree to return to work until Monday, March 27, 1995.
However, Ball does attribute the delay in his return to work
to a lack of gas money.
Both Bowling and Tony Mayes testified that, at approximately
6:00 a.m. on Monday, March 27, 1995, Bowling telephoned
Mayes to ask if he could come back to work. Mayes told him
that the job offer from the previous week still stood. (I,
430; II, 481). Bowling reported to work at approximately
8:00 a.m. but he found that the wheel stud on #139 was still
broken. Bowling complained to mechanic Bennett about the
wheel stud. (II, 335). Bowling also complained to Bennett
about a recapped tire on the front wheel. Bennett told
Bowling the recapped tire was permissible and would not be
changed. Bennett told Bowling he could not replace the
wheel stud because there was no welder available to remove
it. (I, 657, 659-61). Bennett indicated the lights on #139
and "other stuff" had been worked on. (I, 664).
The haulage trucks driven by the complainants were
Model RD 800, manufactured by Mack Truck. Each truck is
equipped with two front tires and eight rear tires. The
rear tires consist four rear pairs of tires, with two pairs
of tires on each side of the rear axles. There are a total
of 24 rear wheel studs comprised of six wheel studs on each
rear set of wheels. The wheel studs consist of a lug nut
and bolt with a spacer placed between each double set of
rear tires. The wheel studs hold the double wheels together
on the axle.
The broken stud in issue had a missing lug nut. The shaft
of the stud remained in the wheel and could be removed by
welding a fitting on the end of the shaft to enable the
shaft to be unscrewed from the wheel axle. Both Hank
Villadsen, a Service Manager for Mack Trucks, and Bennett
testified that broken wheel studs are not uncommon.
Villadsen opined that it is not necessary to immediately
remove a truck from service with one broken and five intact
wheel studs. (III, 301-07). Bennett stated one broken
wheel stud "wouldn't really make a whole lot of difference."
(I, 671). In an effort to moderate his initial opinion,
Bennett went on to state that 60 percent of drivers would
not consider such a condition hazardous and that 40 percent
of drivers would consider it a hazard. (I, 672). MSHA
inspector Adron Wilson opined that one broken wheel stud
puts additional pressure on the five remaining wheel studs.
He concluded that there was a danger that the wheel could
come off if an additional wheel stud on the same wheel
broke.[8] (II, 610).
Bowling testified that he "concluded my truck was not going
to get fixed that day unless I was to stand around there all
day long and see to it myself .... I told Bill Bennett to
have my truck fixed by five o"clock the next morning, I
would be back to work. (I, 436). Bowling then went home
approximately 1-1/2 hours after he arrived. Bowling was paid
$9.00 for the 1-1/2 hours down time on March 27, 1995. ( II,
335-36).
Ball returned to work at 5:45 a.m. on Monday, March 27,
1995. (Resp. Ex. 6). Tony Mayes told Ball truck #147,
previously driven by Ball, was not available. Mayes gave
Ball a choice between truck #134 and #139. Ball chose #134.
Ball told Mayes he would preshift #134 and that he "would
work a ten-hour shift and that was all I was going to work."
(I, 126; II, 184). Mayes told Ball he didn't want to hear
anymore about "any ten hour bullshit." Mayes told Ball if
everyone parked at 4:00 p.m. he would need 30 trucks to haul
the coal. (II, 126). Ball's operator checklist for March
27 reflects he completed 7 round trips from 5:45 a.m. until
approximately 4:00 p.m., with 45 minutes down time. Mayes
testified the cutoff time on that day was between 5:00 and
6:00 p.m. Mayes inquired about Ball and was told he had
left at approximately 4:00 p.m. Parking at 4:00 p.m. would
indicate that Ball last loaded at Huff Creek at
approximately 3:00 p.m.
Ball indicated that he parked about 4:00 p.m. At
approximately 4:15 p.m., before leaving the truck lot, Ball
told mechanic Lee Payne there was a loose U-joint that
caused truck #134 to "wander real bad" whenever it hit a
hole. Lee Payne did not testify in these proceedings. Tony
Mayes testified that, upon learning of Ball's complaint, he
and Riley checked the U-joint and found nothing wrong with it.
(II, 495).
At approximately 5:00 a.m. on Tuesday, March 28, 1995,
Bowling and Ball arrived at the truck lot together in
Bowling's pickup truck. Mayes told Bowling the wheel stud
on #139 had not been fixed. Bennett testified he could not
fix the wheel stud because the diesel powered welding tool
required to remove the stud was not working. (I, 661, 665-
66). Bowling stated he would not drive #139 in that
condition. Mayes asked Bowling to get out of his pickup so
they could discuss the situation. Bowling remained in his
pickup.
Ball asked Riley if he was fired because he left at
4:00 p.m. the previous day. Riley answered, "I never said
that, did I." Ball said he would not drive #134 until the
U-joint was replaced. Tony Mayes told Ball to drive #147,
his former truck. Ball testified he told Tony Mayes he
would preshift the truck. Ball testified Tony Mayes called
Ball a "cry-ass" who wanted to "preshift everything in the
damn lot." Ball also stated that Mayes called him a "sorry
ass" and accused him of just wanting to find some "bullshit"
because he "wasn't interested in working." (I, 146). Ball
stated he told Mayes he was not going to allow himself to be
"cussed" and he turned to leave.
Mayes denies that Ball wanted to preshift #147. Mayes
testified that when he told Ball he could drive #147, Ball
said he wanted to see if he had a ride home. Mayes alleges
Ball got in Bowling's pickup and they both left without
saying anything further.
Tony Mayes telephoned Bowling and Ball on the morning of
Wednesday, March 29, 1995. Bowling told Mayes he had a
meeting with the "investigator." When Mayes asked Bowling
if that was why he wasn't coming to work, Bowling replied he
wasn't coming to work because he was sick. (II, 487).
Bowling's version of events is that Mayes called him on
March 29 and accused him of "nitpicking shit about this
wheel stud." Bowling reported that he hung up on Mayes.
Mayes then called Ball on March 29, 1995. Ball told Mayes
he felt like he was getting the run around. Mayes told him
he had several trucks without drivers and asked Ball to come
to work. Ball said that he would, but he never returned.
(II, 487-88). Ball, on the other hand, testified he told
Mayes he could not return because of all the cussing and
friction the last two days. (I, 147, 181). Mayes called
investigator Harris to advise him of the situation.
As a result of the Bowling and Ball complaints, DOT
conducted a compliance review of Mayes Trucking between May
and July 1995. (Gov. Ex. 7). During this review, DOT cited
Mayes Trucking for a May 10, 1995, violation involving the
failure of truck driver Colen Kelly, who had worked 12-1/2
hours, to keep a record of duty status. Significantly,
there is no evidence that DOT considered Kelly's 12-1/2 hour
workday to be a violation of its ten hour driving
restriction. Although Mayes Trucking was not cited for any
pertinent violation of DOT's Hours of Service limitations,
it did recommend that Mayes Trucking establish a system to
control drivers' hours of service and it cautioned Mayes
Trucking to "not allow drivers to exceed the 10, 15 and
60/70 hour limits" in Part 395 of its regulations.
The Jackson Discrimination Complaint
Walter Jackson was hired by Mountain Top Trucking
approximately nine months prior to his discharge on February
17, 1995. Jackson had no prior experience as a truck
driver. He was hired by Riley after he drove a test run
with Riley from Huff Creek to the processing plant. To gain
experience, Riley secured Elmo Mayes' approval to have
Jackson drive a � mile route hauling mud from the refuge
pile at the tipple to a dump site. After approximately two
weeks of hauling mud, Jackson assumed the normal driver's
duties hauling coal from Huff Creek.
On the date of his discharge, Jackson began hauling coal
at approximately 5:30 a.m. Jackson was driving truck #139.
Truck #139 was one of the slower trucks in Mountain Top's
fleet. Jackson stated that he had been driving this truck
for six or seven months, and that it had previously had a
new transmission installed. (III, 69).
At approximately 9:15 p.m., Jackson was in the process of
completing his tenth load. Jackson stopped at the top of
the mountain on the haulage road and exited the truck to
urinate. Jackson returned to the truck and put it in gear.
However, all of the trucks' functions were reversed. When
Jackson put the truck in first gear it went in reverse.
When the truck was placed in reverse gear, it went forward.
Jackson noticed blue smoke coming from the passenger side
through the headlight beams. Jackson also noticed the truck
did not have any oil pressure.
Hank Villadsen, a Mack Truck Service Manager, explained
the problem experienced by Jackson. When a loaded haul truck
is on a hill, if the driver lets out the clutch and permits the
truck to roll backwards in forward gear, or, permits the
truck to roll forward in reverse gear, the engine will turn
in the opposite direction that it was designed to rotate.
Engine oil pressure drops, and the gears and the exhaust
system reverse. Consequently, air is taken in through the
exhaust system and oil and smoke are vented through the air
filter housing located on the front passenger side of the
truck. The phenomenon of the reversed exhaust system
accounted for the blue smoke observed by Jackson.
Villadsen stated the remedy for "a truck running backwards"
is to shut the truck off for a few minutes so that oil
pressure can be restored and the oil can drain back into the
pan.
Villadsen stated that drivers experiencing this problem
frequently "don't know what's happening." (III, 293). He
further opined, "its scary. It scared me the first time it
ever happened to me." (III, 315).
Jackson observed Riley, who was also hauling coal that
evening, pass him on the haulage road. Jackson radioed
ahead to Riley and described the problem. Riley responded
over the radio advising Jackson to turn off the truck and
wait until Riley could return to check it out. Jackson
turned the engine off. After a few minutes, Jackson
restarted the truck and determined it was operating
normally. Jackson informed Riley who instructed him to
"ease" the truck down the mountain so that it could be
checked out in the truck lot. Jackson interpreted the word
"ease" as an instruction by Riley to be careful.
During the time Jackson was talking to Riley, Elmo Mayes
was in the scale house with Kelly. Elmo Mayes overheard the
radio transmissions between Jackson and Riley. Elmo Mayes
became upset and radioed to Riley to determine what the
problem was. Kelly told Elmo Mayes that it was cutoff time.
Elmo Mayes asked Kelly which driver was due at the scales
next. Kelly told Mayes that Mud Puppy was due. Mud Puppy
is Jackson's CB handle. Elmo Mayes instructed Kelly to make
Mud Puppy the cutoff driver. Elmo Mayes testified that he
did not know Mud Puppy was the driver communicating with
Riley when he selected him as cutoff.
Upon Jackson's arrival at the scales, Jackson noticed
Elmo Mayes' pickup parked outside the scale house. Kelly
informed Jackson that Elmo Mayes had designated him as
cutoff driver. Jackson told Kelly he was willing to be the
cutoff driver. However, Jackson informed Kelly that he was
going to drive to the truck lot after dumping his load in
order to meet Riley who had agreed to check out his truck.
When he arrived at the truck lot, Jackson shut off his
truck and opened the hood. As Riley jumped on the hood, Elmo
Mayes pulled up in his pickup and told Riley, "the damn
truck had oil in it," and to put Jackson's "ass" back in the
truck so that he could go across the hill to get the last
load.
Riley did nothing further to check the truck. Elmo Mayes
told Jackson he was tired of drivers "pussy footing" around,
and that they were going to work when he said they should
work or else he would send them to the house. Jackson told
Mayes he would return for the last load as soon as it was
determined that the truck was safe. Mayes objected to any
further delay and told Jackson if he didn't go back for
another load, he was fired. Jackson told Mayes the best
thing he could do would be to give him his check. Jackson
was given his check and Mayes told him to get his things
out of the truck.
Jackson testified that after he left his job, a fellow
truck driver, Benny Ray Carver, told him that Tony Mayes said
he could have his job back if he apologized. There is no
credible evidence that Jackson was ever contacted by Tony
Mayes or anyone else from Mountain Top about his return to
work.
Jackson filed his discrimination complaint with MSHA on
March 14, 1995. Jackson's complaint stated:
I feel like I was discriminated against due to me being
fired for refusing to operate an unsafe truck after
being in that truck for 16 hours already, on February
17, 1995. In recourse, I request my job back, with
back pay, regulated working hours, and regulated breaks
and lunch breaks. (Gov. Ex. 34).
Disposition of Issues
Discriminatory Discharge
The purpose of section 105(c) of the Act is to protect and
encourage miners "to play an active part in the enforcement of
the Act" recognizing that, "if 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. 95-181, 95th Cong.,
2d sess. Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
A miner alleging to be a victim of prohibited retaliatory
conduct bears the burden of proving a prima facie case of
discrimination under section 105(c) of the Mine Act. In order to
establish a prima facie case, a miner must establish that he
engaged in protected activity, and, that the adverse action
complained of, was motivated in some part by that protected
activity. See Secretary on behalf of David Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980)
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981).
An operator may rebut a prima facie case by demonstrating
either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette,
3 FMSHRC at 817-18; See also Jim Walter Resources, 920 F.2d at
750, citing with approval Eastern Associated Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
An operator must carry the burden of establishing an
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
1935, 1937 (November 1982). However, the ultimate burden of
persuasion remains with the complainants in these proceedings.
Protected Activity
It is axiomatic that miners have an absolute right to make
good faith safety or health related complaints about mine
practices or conditions when the miner believes such
circumstances pose hazards. Secretary of Labor ex rel.
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October
1980), rev'd on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary of
Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981). This statutory right is afforded to
miners who bring to the attention of mine management
conditions or circumstances that pose hazards to fellow
employees as well as to themselves. See Secretary on behalf
of Cameron v. Consolidation Coal Company, 7 FMSHRC 319
(March 1985).
Communication of potential health or safety hazards, and
responses thereto, are the means by which the Act's purposes
are achieved. Once a reasonable, good faith concern is
expressed by a miner, an operator, usually acting through
on-the-scene management personnel, has an obligation to
address the perceived danger. Boswell v. National Cement
Co., 14 FMSHRC 253, 258 (February 1992); Secretary o.b.o.
Pratt v. River Hurricane Coal Company, Inc., 5 FMSHRC 1529,
1534 (September 1983); Secretary of Labor v. Metric
Constructors, Inc., 6 FMSHRC 226, 230 (February 1984), aff'd
sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469
(11th Cir. 1985).
Further Findings and Conclusions
As a threshold matter, I note that whether Jackson, Bowling,
or Ball, initially quit or were fired is not material in the
resolution of these cases. The February 17, 1995,
termination of Jackson and the March 7, 1995, discharges of
Bowling and Ball, were clearly adverse actions resulting
from the complainants' work refusals. The issues to be
determined are whether these work refusals warrant the
statutory protection provided by section 105(c) of the Act.
Although the Act grants miners the right to express safety
and health related concerns, it does not expressly grant the
right to refuse to work under such circumstances.
Nevertheless, the Commission and the Courts have recognized
the right to refuse to work in the face of perceived
dangers. See Secretary of Labor on behalf of Cooley v.
Ottawa Silica Co., 6 FMSHRC 516, 519-21 (March 1984), aff'd
mem., 780 F.2d 1022 (6th Cir. 1985); Price v. Monterey Coal
Co., 12 FMSHRC 1505, 1514 (August 1990) (citations omitted).
In order to be protected, work refusals must be based upon
the miner's "good faith, reasonable belief in a hazardous
condition." Id.; Gilbert v. FMSHRC, 866 F.2d 1433, 1439
(D.C. Cir. 1989). The complaining miner has the burden of
proving both the good faith and the reasonableness of his
belief that a hazard existed. Robinette, 3 FMSHRC at 807-
12; Secretary of Labor on behalf of Bush v. Union Carbide
Corp., 5 FMSHRC 993, 997 (June 1983). The purpose of the
"good faith" belief requirement is to "remove from the Act's
protection work refusals involving frauds or other forms of
deception." Robinette, 3 FMSHRC at 810.
For a work refusal to be protected under the Mine Act, a
miner should first communicate his safety concerns to some
representative of the operator. Secretary of Labor on
behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133
(February 1982). If the miner expresses a reasonable, good
faith fear concerning safety, the operator has a duty to
address the perceived danger. Metric Constructors, Inc. 6
FMSHRC at 230; Secretary of Labor on behalf of Pratt v.
River Hurricane Coal Co., 5 FMSHRC 1529, 1534 (September
1983).
Jackson's February 17, 1995, complaint to Elmo Mayes and
Riley concerning his continued use of his backward running
truck, particularly over mountainous terrain, evidenced a
good faith reasonable belief that a hazard existed.
Similarly, Bowling and Ball's March 7, 1995, complaints
concerning their fatigue as a consequence of their excessive
work hours, communicated to Elmo Mayes and Riley, were also
reasonably expressed safety related concerns.
Having communicated these good faith, reasonable concerns
about safety, the analysis shifts to an evaluation of
whether the respondents addressed these concerns in a way
that should have alleviated the complainants' fears.
Gilbert, 866 F.2d at 1441; see also Bush, 5 FMSHRC at 997-
99; Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135
(February 1988), aff'd mem., 866 F.2d 431 (6th Cir. 1989).
For a miner's continuing refusal to work may become
unreasonable after an operator has taken reasonable steps to
dissipate fears or ensure the safety of the challenged task
or condition. Bush, 5 FMSHRC at 998-99.
Elmo Mayes' refusal to permit the inspection of Jackson's
truck in the truck lot immediately following the
malfunctioning incident on the mountain failed to address
Jackson's reasonable concerns for his personal safety. So
too, Riley's promise of the resumption of "normal" work
hours when the stockpiles were reduced was not responsive to
Bowling and Ball's immediate concerns of fatigue. Thus, the
respondents provoked the complainants' initial work refusals
by taking no meaningful actions to address their fears. The
reasonableness of the complainants' work refusals are
further discussed below.
Jackson's February 17, 1995, Work Refusal
With respect to Jackson, the reasonableness of his
reluctance to resume driving late in the evening on February
17, 1995, is self evident. Jackson was an inexperienced
truck driver. Even the respondents' witness Hank Villadsen,
a Mack Truck Service Manager, admitted a truck running
backwards is "scary." A miner must communicate his safety
complaint to an operator. I credit the testimony of Kelly,
over Elmo Mayes' denial, that Elmo Mayes was aware of
Jackson's troubles when he designated Jackson as cutoff
driver on February 17, 1995. In this regard, Kelly provided
a statement to MSHA investigators shortly after this
incident reflecting that Elmo Mayes selected Jackson as
cutoff specifically because he had overheard Jackson
complain about the malfunction at the top of the mountain.
(I, 713-14). Moreover, Riley was certainly aware of
Jackson's concerns, which he acknowledged by instructing
Jackson to "ease" the truck down the mountain.
Simply stated, can anyone seriously question the propriety
of Jackson's refusal to continue to drive his truck at 9:00
p.m. on a winter evening, over mountainous terrain, after
having worked approximately 16 hours and experiencing this
"scary" situation? As noted above, the Mine Act imposes an
obligation on operators to reasonably address a miner's
fears. Gilbert, 866 F. 2d at 1441. Elmo Mayes' response to
Jackson's reasonable concerns was retaliatory in nature and
precisely the type of conduct the Act seeks to dissuade.
Accordingly, the respondents' failure to address Jackson's
fears is actionable. Thus, Jackson's February 17, 1995,
refusal to act as the cutoff driver until his truck was
adequately inspected for defects was reasonable, and
constitutes protected activity under section 105(c) of the
Act. Consequently, Jackson's discrimination complaint shall
be granted.
Bowling and Ball's March 7, 1995, Work Refusal
With respect to Bowling and Ball's March 7, 1995, work
refusal, it is necessary to determine what constitutes
unreasonable work hours that would justify a work refusal
protected by section 105(c). As these are discrimination
complaints brought pursuant to the Mine Act, whether
Mountain Top violated any provision of the DOT regulations
governing permissible truck driver working hours is beyond
the scope of these proceedings. In fact, MSHA investigator
Harris stated that he was not familiar with DOT's
regulations and they were not considered during the course
of his investigation. (I, 743).
Whether Mountain Top violated any other state or federal
regulation related to wages and hours is also not the
subject of these proceedings. The issues in these
proceedings are limited to what relief, if any, is available
to Bowling and Ball under the Mine Act.
Thus, in assessing the propriety of Bowling and Ball's March
7, 1995, work refusal, it is necessary to distinguish
Mountain Top's "normal" work hours from excessive work
hours. The overwhelming evidence, including Bowling and
Ball's own testimony, reflects they accepted positions with
Mountain Top knowing that the workday consisted of an
approximate 5:00 a.m. starting time, with cutoff times
varying between 4:00 p.m. and 6:00 p.m.[9] These working
hours were out of the control of Mountain Top as they were
established by Lone Mountain. These work hours also applied
to Hillis Breese, Lone Mountain's other haulage contractor.
Consequently, the record reflects that, in resolving the
matters in issue, the applicable normal working hours are
from 5:00 a.m. until a cutoff time as late as 6:00 p.m.
Using an average cutoff time of 5:00 p.m., it is helpful to
quantify the miles driven during a "normal" 12 hour workday.
With respect to Mountain Top, assuming an approximate 1�
hour round trip from Huff Creek and an average of a 5:00
p.m. cutoff time, a truck driver would complete
approximately nine round trips.[10] Nine round trips would
constitute driving a total of 45 miles over state road 38,
and 108 miles over Lone Mountain's haul road. Under these
circumstances, Bowling and Ball, having accepted the working
conditions and hours of employment, have failed to establish
that a 4:00 to 6:00 p.m. cutoff time is unlawful, or
otherwise unreasonable.
However, from early February 1995 until Bowling and Ball's
March 7, 1995, discharge, the required work hours were
considerably longer than the customary 6:00 p.m. cutoff
limit. Kelly testified that cutoffs were as late as 9:00 to
10:00 p.m. Even a 9:00 p.m cutoff would require the cutoff
driver to work past 10:00 p.m., a 17 hour work day.
Moreover, the extended workdays during this period are not
in dispute. Tony Mayes has conceded throughout these
proceedings that mistakes were made with regard to Mountain
Top's insensitivity to the drivers safety related complaints
regarding these excessive work hours. (I, 713; II, 295-96,
526; III, 473-74).
Under these conditions, it was reasonable for Bowling
and Ball to refuse to continue working on March 7, 1995,
past a 6:00 p.m. cutoff because of their belief that their
fatigue, caused by working excessive hours, posed a risk to
their continued safe operation of their vehicles. The
hazards associated with the complainants' fatigue were
accentuated by the necessity for them to drive multi-ton
haul vehicles over mountainous terrain on narrow and winding
roads. Consequently, Bowling and Ball's March 7, 1995, work
refusals were protected under section 105(c) of the Act.
Bowling and Ball's Alleged Constructive Discharge
A constructive discharge occurs if the operator attempts
to thwart a miner's rights under the Act by retaliating against
a miner's protected activity by maintaining intolerable
working conditions in order to force the miner to quit.
Thus, the doctrine of constructive discharge extends
liability to operators that indirectly effect a discharge
that is forbidden by the Act if done directly. Nally &
Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2210 (November
1994), citing Simpson v. FMSHRC 813 F.2d 639, 642 (4th Cir.
1987). In this regard, section 105(c) of the Act seeks to
protect miners from not only common forms of discrimination,
such as discharge or demotion, but also more subtle forms of
interference such as threats of reprisal or harassment.
Elias Moses v. Whitley Development Corp., 4 FMSHRC 1475,
1478 (August 1982) quoting Pasula, 2 FMSHRC at 2790. To
this end, the remedial goal of section 105(c) is to "restore
the [victim of illegal discrimination] to the situation he
would have occupied but for the discrimination." Secretary
on behalf of Dunmire and Estle v. Northern Coal Co., 4
FMSHRC 126, 142 (February 1992).
Disposition of a constructive discharge allegation is a
delicate issue because of the potential for abuses by
operators, as well as complainants, that undermine the Mine
Act's fundamental purpose of encouraging the legitimate free
exercise of miners' rights that is so "essential to the
achievement of safe and healthful mines". Elias Moses, 4
FMSHRC at 1478. The Mine Act is a remedial statute. It
seeks to discourage discriminatory conduct and make victims
of discrimination whole through back pay and reinstatement.
In addressing whether a constructive discharge occurred
in these cases, I am keenly aware that direct evidence of
discriminatory motive is rare and that discriminatory intent
may be established through circumstantial evidence.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510-11 (November 1981), rev'd on other grounds
sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.
Cir 1983). However, in cases such as these, where
complainants have been called back to work after a
discriminatory discharge, an operator's defense that a
constructive discharge claim is disingenuous, because the
complainants were not interested in returning to work, must
also be established by circumstantial evidence.
In the instant cases, Bowling and Ball contend they were
the victims of constructive discharges upon their return to
work after Tony Mayes had offered their jobs back on March 22,
1995. Thus, Bowling and Ball have the burden of
establishing that they were forced to endure the requisite
intolerable working conditions that forced them to quit
their jobs on March 29, 1995. An analysis of the
circumstantial evidence surrounding the alleged intolerable
working conditions during the period in issue follows.
Wednesday, March 22, 1995
Following Bowling and Ball's March 7, 1995, discriminatory
discharge, Tony Mayes telephoned both complainants on March
22, 1995. As a result of Tony Mayes' phone calls, Bowling
agreed to return to work on Thursday, March 23, 1995.
Mayes stated Ball agreed to return to work on Friday,
March 24, 1995. Ball maintains he agreed to return to work on
Monday, March 27, 1995, because he did not have money for
gas and he had an appointment to upgrade his commercial
driver's license.
Both Mayes and Ball agree that Ball did not intend to
return to work immediately. I credit Mayes testimony that Ball
indicated he would return to work on Friday, March 24, 1995,
over Ball's testimony. Mayes' testimony is consistent with
the testimony of Bowling and Ball with respect to other
details of these conversations. Moreover, contemporaneous
notes made by the respondents reflect that Ball was due back
to work on March 24. (Resp. Ex 4). Finally, Ball's
contention that he could not return to work until the
following Monday because he lacked gas money is unavailing
since he routinely rode with Bowling, and, he knew Bowling
was scheduled to return to work as of March 23. Ball's
failure to return to work immediately undermines his
asserted interest in returning to his job.
Thursday, March 23, 1995
Ball did not report to work on March 23, 1995. Bowling
reported to work at 5:00 a.m. He refused to drive truck
#139 based on "his previous experience with the truck."
There is no evidence that he spoke to truck mechanic Bennett
about the condition of #139 on March 23, or, that he took
any action to secure the repairs he claimed the truck
needed. Bowling left the truck lot in the early morning
hours of March 23. The respondents claim Bowling left after
one hour and that he stated he would wait for the results of
MSHA's investigation. I credit Mayes testimony in this
regard as it is undisputed that Bowling did not return to
work the next day and Bowling has not provided a credible
explanation for his absence.
Friday, March 24, 1995
Significantly, neither Bowling nor Ball reported to work
on Friday, March 24, 1995. Bowling testified that he "called
in sick to the guard shack." There is no corroborating
evidence that Bowling called in sick. Nor is there any
evidence about the details of his reported illness.
Finally, Bowling's purported call reporting his illness to
Mountain Top on March 24 is belied by his admission that he
called Mayes at approximately 6:00 a.m. on Monday, March 27
to ask if he still had a job.
As noted, Ball also did not report to work on Friday, March
24, 1995. I credit Tony Mayes' testimony that Ball called
in on May 24 to state he had no gas money, although Ball
maintains he did not agree to return to work until March 27.
The failure of both Bowling and Ball to report to work as
expected on March 24, without adequate reasons for their
absence, further undermines their claims of constructive
discharge.
Monday, March 27, 1995
Bowling returned to work on Monday, March 27 after
telephoning Mayes earlier that morning to inquire if he
still had a job. Bowling still objected to driving #139.
He had numerous complaints about #139, including a recap on
the front tire that had apparently been on the truck for
some time. Mechanic Bennett informed him the lights on the
truck had been checked out and that the recap on the front
tire was permissible. Bowling refused to drive the truck
because of the broken wheel stud. Mayes did not order
Bowling to drive #139 before the wheel stud was fixed.
Bowling testified that he "concluded my truck was not going
to get fixed that day unless I was to stand there all day
long and see to it myself." Bowling was entitled to $6.00
per hour down time while his truck was being fixed. Bowling
left work after 1-1/2 and was paid $9.00 down time. Bowling's
decision not "to stand around all day," although he was
entitled to compensation for down time, further undermines
his allegations of a constructive discharge.
Ball reported for work on Monday, March 27, 1995. Mayes
gave him the choice to select #139, which Bowling refused to
drive, or #134. Ball selected #134 and told Tony Mayes he
would only drive ten hours. This remark was made as a non-
negotiable ultimatum. It was apparently intended to provoke
Mayes as normal cutoff times had routinely been as late as
6:00 p.m. since Ball had worked for Mountain Top. The
cutoff time on March 27 was between 5:00 and 6:00 p.m.
Ball drove 7 round trips between 5:45 a.m. and 4:00 p.m.
At approximately 4:00 p.m., Riley saw Ball in his car leaving
the haul road. Ball testified Riley approached him and
asked "where in the hell are you going?" (I, 138). Ball
replied he was going home because he was "only required to
drive ten hours a day, and that's what I've been told is the
safe and legal limit, and that's all I'm going to operate
your truck." Id. Thus, Ball left work without the
approval of Mountain Top management.
Before leaving Ball reportedly complained to Lee Payne,
a truck mechanic who was not called as a witness, about the
condition of his truck. Ball alleged the U-joint on #134
was loose and made the truck "wander real bad." Tony Mayes
stated the U-joint was checked and it was determined that it
was not defective.
Tuesday, March 28, 1995
Bowling and Ball drove to work together on Tuesday, March
28, 1995. Upon arriving at work Ball asked Riley if he was
fired "because of the incident yesterday afternoon." Riley
told him he had not been fired. Bowling made a similar
inquiry the previous morning when he asked Tony Mayes if he
was fired. Bowling refused to drive #139 because the wheel
stud had not been fixed. Bowling's testimony does not
reflect that he made any significant effort to inquire about
driving an alternative truck. (I, 444-45, 476). Similarly,
Ball refused to drive #134 because of the claimed loose U-
joint.
Tony Mayes then offered Ball truck #147, the truck Ball
had driven prior to his March 7 discharge. Ball said he would
only drive the truck after he preshifted it. Tony Mayes
accused him of being a "cry-ass" who "wanted to preshift
everything in the damn lot." As discussed below, Mayes'
remarks, when viewed in context, do not constitute a
constructive discharge. Ball did not preshift #147.
Rather, he and Bowling left the truck lot together in
Bowling's pickup.
Wednesday, March 29, 1995
Tony Mayes called Bowling and Ball about returning to work.
Both Bowling and Ball testified that they declined to return to
work because of all the "cussing" that had gone on.
Additional Findings and Conclusions
A review of the above events reflects that Bowling and Ball
acted in concert. They both failed to report to work on
Friday, March 24 without providing a credible reason. Their
absence from work on March 24, coupled with Bowling's
statement on March 23 that he would wait for the results of
MSHA's investigation, fails to support their contention that
they truly desired to return to their jobs. Bowling and
Ball's inquiries into whether they had been "fired," when
they had not been told they were fired, were manipulative,
and are additional indications that they were not interested
in returning to work.
With regard to the condition of the trucks in issue, I
note these vehicles are haulage trucks used to transport multi-
ton loads over unpaved mountain roads. While these trucks
must be maintained in safe operating condition, reasonable
people may differ over when a component part requires
replacement. Although mine operators are subject to civil
penalties for unsafe equipment, the Mine Act does not strip
operators of their authority to determine when equipment
should be repaired, or removed from service. In this
regard, the respondents' records for the period March 22
through March 29, 1995, reflect that trucks were frequently
removed from service for repair. (Resp. Ex. 4).
Ball's assertion that #134 had a loose U-joint is self-
serving and uncorroborated. For example, there is no
evidence of similar U-joint complaints by any driver who
used #134 immediately prior to Ball. More significantly,
Ball operated #134 for 10 hours on March 27, 1995, without
removing the truck from service. By his own admission, Ball
stopped driving at 4:00 p.m. on March 27 because he was
"only required to drive ten hours a day," not because #134
was unsafe to drive. Thus, his refusal to drive the truck
the following morning, purportedly for reasons of safety, is
inconsistent with his uninterrupted operation of the truck
the previous day. Moreover, the respondents' records
reflect truck #134 was repaired as recently as Wednesday,
March 22, 1995, when the rear end was serviced by replacing
the ring gear and pinion, spur shaft, and bullgear with a
new axle gear kit. (Resp. Ex. 4).
It is noteworthy that Ball demonstrated little enthusiasm
for driving truck #147 on March 28, 1995, although his March
9, 1995, discrimination complaint specifically requested
reassignment to #147. Ball's conduct in insisting on
preshifting #147, when viewed in context, was provocative
and calculated to antagonize. Obviously, preshifts are
required. However, Mountain Top's policy called for drivers
to mark checkoff sheets throughout the day detailing
maintenance problems that occurred as the shift progressed.
The checkoff sheets, annotated with maintenance problems,
were turned in at the truck lot at the end of the day.
Thus, the trucks, in fact, had been preshifted in that the
previous driver had evaluated the trucks at the end of the
previous day. Moreover, Ball could have taken #147 out of
service if he experienced a significant problem before
exiting the truck lot.
With respect to Bowling, he repeatedly left work shortly
after reporting and made no attempt to stay at work,
compensated for down time, to ensure that his truck was
repaired, or, to wait for another truck to be assigned.
Upon returning to work, Bowling was at work approximately 1-1/2
hours on Thursday, March 23; he did not report to work on
Friday, March 24; he was at work 1-1/2 hours on Monday, March
27; he reported to work but did not get out of his pickup on
Tuesday, March 28; and he refused to return to work on
Wednesday, March 29.
With respect to the condition of truck #139, obviously,
being required to drive an unsafe truck is an intolerable
condition. While the evidence is equivocal concerning
whether one rear broken wheel stud justifies a truck's
immediate removal form service, Bowling's refusal to drive
#139 with a broken wheel stud is protected activity if it
was made in good faith. However, as discussed herein, the
credible evidence reflects his complaint was pretextual in
nature given Bowling's other provocative conduct and his
refusal to work past 3:00 p.m. Moreover, even if Bowling's
refusal to drive #139 was protected, there is no evidence
that his refusal resulted in his discharge.
Turning to the complainants' truck assignments, the
Commission has stated that its jurisdiction is limited to
ensuring that miners' rights under the Act are protected.
The Commission's function is not to pass on the wisdom or
fairness of the asserted business justifications for a
particular business decision, but rather, to determine if
such justifications are credible, and, if so, whether they
would have motivated the operator as claimed. Bradley v.
Belva, 4 FMSHRC 982, 993 (June 1982). Here, Tony Mayes
expressly asked investigator Harris whether he could assign
Bowling and Ball to any truck if he rehired them. Harris
replied that Mayes could assign them to any truck as long as
it was safe and preshifts were done. (I, 735). Mayes
testified that his inquiry was motivated by his desire to
prevent resentment from other truck drivers over truck
reassignments. This is a reasonable business concern.
Moreover, even if Mayes' failure to assign Bowling and
Ball to their former trucks was motivated by their protected
activity, the Mine Act does not sanction work refusals for
adverse personnel actions that do not create intolerable
conditions. Under such circumstances miners can file
discrimination complaints to remedy the adverse personnel
action. The fact that #134 or #139 may not have been as
desirable as Bowling and Ball's former trucks, because they
were older models, does not constitute intolerable working
conditions.
Finally, the asserted safety problems as the motivation
for Bowling and Ball's refusals to drive #134 or #139, are
inconsistent with their predisposition, expressed in their
March 9, 1995, MSHA discrimination complaints, to drive only
trucks #144 and #147. (Gov. Ex. 9). It is worth noting
that it was not uncommon for Bowling and Ball to be assigned
trucks other than #144 and #147. For example, Bowling drove
#134 on February 11, 1995, and #150 on March 6 and March 7,
1995. (Miner's Ex. 10). Ball drove #134 on February 3,
February 6, February 10, and February 13 through 16, 1995,
and #138 on February 12, 1995. (Miner's Ex. 9).
Bowling and Ball allegedly refused to return to work
because they were offended by the respondents' language.
Remarks such as accusing Bowling of "nitpicking shit," or
Ball of being a "cry-ass," do not constitute intolerable
working conditions under these circumstances. There is no
evidence of any personal threats. Passions run high in
labor disputes and epithets and accusations, particularly by
truck drivers, are not uncommon in such instances. Crown
Central Petroleum Corporation v. NLRB, 430 F.2d 724, 731
(5th Cir. 1970).
The Reliance on DOT Regulations
Finally, and most importantly, Bowling and Ball's refusal
to work "a minute" more than ten hours per day, although they
had routinely worked as long as 12 hour days, was
unreasonable. According to Bowling's interpretation of
DOT's ten-hour rule, it was "illegal" for him to drive "one
minute" past 3:00 p.m. if he began work at the routine 5:00
a.m. starting time. (I, 456-59). Bowling's interpretation
of the DOT regulations would require his last load to occur
prior to 2:00 p.m. For example, if Bowling last loaded at
Huff Creek at 1:50 p.m., he could not complete another 1�
hour round trip to return to Huff Creek for another load
before 3:00 p.m. These work day limitations would destroy
Mountain Top's ability to fulfill its contractual
obligations with Lone Mountain. Consequently, Bowling and
Ball's adherence to their interpretation of DOT's ten-hour
rule, regardless of their sincerity, was unreasonable and
provided an independent justification for their termination.
4 FMSHRC at 993.
Ironically, Bowling and Ball took it upon themselves
to enforce DOT's "ten-hour rule" even though DOT's
investigation failed to confirm Mountain Top's alleged non-
compliance. In this regard, the fact that drivers routinely
worked from 5:00 a.m. until as late as 6:00 p.m. cutoffs
was easily ascertainable and presumably known to DOT
investigators. In fact, DOT failed to conclude that Mayes
Trucking's Colen Kelly had violated the ten hour rule although
it was aware Kelly had worked as a truck driver for a 12-1/2
hour workday. (Gov. Ex 7).
DOT's failure to cite Mayes Trucking for violating the ten
hour rule, a rule that is intended to restrict driving hours
for long haul interstate trucking, is not surprising given
Mountain Top's short truck route. The trip from the Huff
Creek facility to the processing plant was approximately 8
miles, consisting of approximately 6 miles on a private
haulage road and only 2 miles on state road 38. Moreover,
it is difficult to apply the ten hour standard to the facts
in these cases because it is difficult to determine how many
work hours constitute driving more than ten hours. A total
of 40 trucks, including those operated by Hillis Breese,
were traveling this 8 mile route. Driving time for the 1�
hour round trip was diminished by the varying times for
waiting in line to load, weigh at the scale house, and
unload at the dump site.
Additionally, while there was a disincentive to stop for
extended lunch periods because drivers were paid by the
load, Geraldine Perkins, who operated a snack shop on state
road 38, testified most drivers stopped daily for varying
periods of time. (II, 455). For example, she estimated
that Bowling and Ball patronized her snack shop two to three
times per day. (II, 455).
Even if Bowling and Ball misapplied DOT's ten hour rule,
they argue that their work refusal is still protected
because it was reasonable and made in good faith. However,
as discussed below, the complainants' argument fails because
their work refusal lacks the fundamental condition
precedent, i.e., fear of a discrete hazard.
Section 105(c) confers on a miner the right to refuse to
work if he sincerely believes his working conditions expose
him to an identifiable danger. Thus, the right to refuse
work is personal to the miner who fears a perceived danger.
Although objective proof that an actual hazard existed is
not necessary to support a protected work refusal, the miner
must demonstrate a reasonable basis for concluding that he
was exposed to an actual risk. Secretary of Labor on behalf
of Hogan v. Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July
1996), aff'd mem., 829 F.2d 31 (3rd cir. 1987). In this
regard, good faith complaints by Bowling or Ball of personal
illness or fatigue posing a discrete safety hazard during a
workday, regardless of how many hours they had worked that
day, would be protected activity. In other words, it is the
actual personal illness or fatigue, not the number of hours
worked, that creates the protected, reasonable basis for the
perceived hazard.
As an illustration of this concept, it is helpful
to contrast two cases previously brought before this
Commission. In Walter A. Schulte v. Lizza Industries, Inc.,
6 FMSHRC 8 (January 1984), the Commission concluded that a
miner's unexcused early departure from work, in a situation
where the operator had a policy requiring employees to work
overtime each day, was not protected by the Act. In Lizza,
there was no showing that Schulte's early departure was
necessitated by specific concerns for his personal safety.
However, in James Eldridge v. Sunfire Coal Company, 5 FMSHRC
408, 464 (March 1983), Judge Koutras found Eldridge's work
refusal was protected when he refused to work beyond his
normal shift because of his communicated concerns that he
was "too tired and exhausted" to continue working on a
pillar section until the entire pillar was extracted.
Thus, the Commission's framework for a protected
work refusal requires "a direct nexus between performance of
the refusing miner's work assignment and the feared resulting
injury to [himself or] another miner." Cameron, 7 FMSHRC at
324. Here, Bowling and Ball's work refusal is predicated on
their disinclination to drive more than ten hours as a
matter of policy, rather than being motivated by their fear
of a discrete safety hazard brought about by their physical
condition. Thus, in the final analysis, their refusal to
"drive" more than ten hours per day lacked the requisite
nexus to any identifiable discrete safety hazard.
Consequently, their work refusal, with respect to limiting
the hours they were willing to work, is not protected
activity under the Act.
The complainants assert that the respondents' actions from
March 22 through March 29, 1995, must not be viewed in
isolation. Thus, they argue the circumstances surrounding
their March 29, 1995, terminations were intimately connected
to their earlier protected activities, i.e., their March 7
complaints about long work hours and the filing of their
discrimination complaints on March 9. Consequently, it is
alleged the respondents had a "predisposition" to get rid of
Bowling and Ball whom the company believed were
"troublemakers." (Complainants' Findings at 39-40).
The Complainants miss the point. The March 7 complaints
concerning excessive work hours, and the filing of their
discrimination complaints based on those long workdays, were
protected activities that serve as the basis for their March
7 protected work refusal. However, the complainants'
expressed refusals to "drive" more than 10 hours per day
after they were called back to work by Tony Mayes
constituted unprotected and potentially disruptive activity.
The Mine Act does not confer on miners the unilateral
authority to determine their own work hours. Their work
refusals provide an independent basis for their discharge.
"Unreasonable, irrational or completely unfounded work
refusals do not commend themselves as candidates for
statutory protection...." Robinette, 3 FMSHRC at 811.
Ultimate Findings and Conclusions
It is undisputed that Bowling and Ball refused Tony Mayes'
March 29, 1995, telephone offer to return to work. The
complainants have the burden of demonstrating that their
refusal to return to work was reasonable, and protected
activity under the constructive discharge doctrine.
However, Bowling and Ball have not demonstrated that they
were forced to endure intolerable working conditions that
forced them to refuse to return to work. Rather, their
actions during the period March 22 through March 29, 1995,
were provocative in nature and evidenced attempts to
provoke their discharge for the apparent purpose of
preserving their pending discrimination complaints. But cf.
Hogan, 8 FMSHRC at 1072 (two miners' work refusals were
protected where each miner "acted individually, without
knowledge of the intentions of the other," and there was no
evidence "suggesting a likelihood of pretext or ulterior
motive for their actions").
Moreover, their refusals to work more than ten hour days,
conditions they had previously accepted, provided an
independent and unprotected basis for their termination.
Consequently, the discrimination complaints of Bowling and
Ball only entitle them to the protections and relief
available under section 105(c) from March 8, 1995, the day
following their discriminatory discharges, through March 22,
1995, the day they were offered reinstatement.
Liability
Successorship Liability
The related temporary reinstatement decision in
these matters established that Mayes Trucking is liable
in these discrimination proceedings as the successor
corporation of Mountain Top. That decision noted the
Commission's successorship standard in discrimination
cases is well settled. Secretary on behalf of James
Corbin et al. v. Sugartree Corp., Terco, Inc., and
Randal Lawson, 9 FMSHRC 394, 397-399 (March 1987),
aff'd sub nom. Terco Inc. v. FMSHRC, 839 F.2d 236, 239
(6th Cir. 1987). See also Secretary on behalf of Keene
v. Mullins, 888 F.2d 1448, 1453 (D.C. Cir. 1989).
Under this standard, the successor operator may be
found liable for, and responsible for remedying, it's
predecessor's discriminatory conduct. The indicia of
successorship are:
(1) whether the purported successor company had notice
of the underlying charge of possible discrimination;
(2) the ability of the purported successor to provide
relief; (3) whether there has been a substantial
continuity of business operations; (4) whether the
purported successor uses the same plant; (5) whether
the purported successor employs the same work force;
(6) whether the purported successor uses the same
supervisory personnel; (7) whether the same job exists
under substantially the same working conditions;
(8) whether the purported successor uses the same
machinery, equipment and methods of production; and
(9) whether the purported successor produces the same
product. See Terco, 839 F.2d at 239; Mullins, 888 F.2d
at 1454.
The temporary reinstatement decision noted "compelling
evidence" of successorship. 17 FMSHRC at 1708-09. With regard
to notice, Tony Mayes, President of Mayes Trucking, clearly had
knowledge of the alleged discriminatory conduct. Turning to the
other criteria of successorship, the temporary reinstatement
decision noted:
(1) Mayes Trucking employs Riley, the same truck
foreman; (2) to supervise the same drivers; (3) to
drive the same trucks; (4) to haul coal from the same
mine site to the same processing plant; (5) over the
same route; precisely as Mountain Top had done. 17
FMSHRC at 1709.
Thus, Mayes Trucking was determined to be the successor to
Mountain Top. Consequently, Mayes Trucking and Mountain Top are
jointly and severally liable for the relief awarded in these
proceedings.
Personal Liability
In addition to Mayes Trucking's liability as a successor
of Mountain Top, the complainants assert that David Riley, Elmo
Mayes and Tony Mayes are personally liable under section
105(c). Section 105(c)(1) provides, in pertinent part, that
"no person shall discharge or in any manner discriminate
against ...any miner...[who] has filed or made [a safety
related] complaint under or related to this Act...."
(Emphasis added).
Section 3(d) of the Act, 30 U.S.C. � 802(d), defines
"operator" as "any ...person who operates, controls, or
supervises a coal or other mine or any independent
contractor performing services ...at such mine." (Emphasis
added).
Section 3(f) of the Act, 30 U.S.C. � 802(f), defines
"person" as "any individual, partnership, association,
corporation, firm, subsidiary of a corporation, or other
organization." (Emphasis added). Significantly, section
3(f) does not include "agents" of these business entities
within the meaning of "person."[11] Rather, liability as a
105(c) "person" generally only attaches if there is a
proprietary interest.
Thus, the term "person" under section 105(c), when read
in conjunction with sections 3(d) and 3(f) of the Act, includes
any business entity, regardless of its structure, that
operates a mine, or that performs independent contractor
services at a mine. Although operators can be held
accountable for violations of section 105(c) committed by
"agents," such agents are not individually liable under
section 105(c) of the Act, for only operators are capable of
providing the back pay and reinstatement relief contemplated
under section 105(c). To make an agent jointly and
severally liable with an operator under section 105(c) is to
elevate an agent to the status of a principal.
There may be instances where an individual, without a
cognizable proprietary interest, exercises complete de facto
control. In such instances, 105(c) liability may be
predicated on this individual's status as an "operator"
given his total control of the mine. For example, in Glenn
Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (December
1980), relied upon by the complainants, Ralph Baker, the
manager who was responsible for the day to day operations of
the Smitty Coal Company mine, was ordered to reinstate the
complainant, Munsey, after Baker had incorporated a new
company, Mason Coal Company, and refused to rehire him.
However, in addition to being the mine manager, Ralph Baker,
along with Smitty Baker, apparently was also a principal in
the corporate respondent. See Glenn Munsey v. Smitty Baker
Coal Co., Inc., Ralph Baker, Smitty Baker, and P&P Coal
Company, 8 IBMA 43 (June 30, 1977).
The conclusion that only "operators" are liable under 105(c)
is consistent with Commission precedent. In Robert Simpson
v. Kenta Energy, Inc., & Roy Dan Jackson, 11 FMSHRC 770 (May
1989) the Commission determined that Jackson, Kenta's
President, was personally liable for back pay and
reinstatement under section 105(c) because:
Jackson was the real "operator," the real "person"
in control of the personnel actions at the mine. The
point of this approach was to show that Jackson should
not be permitted to "hide" behind the corporate veil.
11 FMSHRC at 780.
By contrast, Riley was not a corporate officer of Mountain
Top or Mayes Trucking. Rather, Riley was an "agent" who answered
to, and sought the approval of, Elmo and Tony Mayes. The notion
that ordinary supervisors, such as Riley, can be held jointly or
severally liable with their employers in discrimination cases
under 105(c) for back pay and reinstatement is lacking in
foundation. After all, a condition precedent to liability
under 105(c) is the ability to provide the requested relief,
i.e., the relief required to make victims of discrimination
whole. 2 FMSHRC at 3466. Rank-and-file supervisors are not
capable of providing such relief.
Although agents are not personally liable under 105(c), a
corporate agent "who knowingly authorized, ordered, or carried
out . . . [a] violation" committed by a corporate operator may be
subject to individual liability for civil penalties under section
110(c) of the Mine Act, 30 U.S.C. � 820(c). The proper legal
standard for the purpose of determining 110(c) liability is
whether the corporate agent "knew or had reason to know" of a
violative condition. See Beth Energy Mines, Inc., 14 FMSHRC
1232, 1245 (August 1992) citing Secretary v. Roy Glenn, 6 FMSHRC
1583, 1586 (July 1984) and Kenny Richardson, 3 FMSHRC 8, 16
(January 1981). The Commission has consistently held that a
"knowing" violation under section 110(c) involves aggravated
conduct, not ordinary negligence. Id., citing Emery Mining
Corporation, 9 FMSHRC 1997, 2003-04 (December 1987).
Although Riley, as a truck foreman, is not personally liable
as an "agent" under 105(c), he may be subject to the civil
penalty provisions of section 110(c) for acts committed in
violation of any provision of the Act. However, the Secretary
has not brought a 110(c) civil penalty proceeding alleging that
Riley "knowingly" violated section 105(c).
Even if the Secretary had brought a 110(c) case against
Riley, whether the Secretary could prevail on the "knowingly"
violated standard in section 110(c) is uncertain. With respect
to Jackson, it was Elmo Mayes, not Riley, that created the
circumstances behind Jackson's protected work refusal. With
regard to Bowling and Ball, Riley's conduct demonstrated no
disparate treatment. Riley was requiring Bowling and Ball to
work the extra hours required of all Mountain Top and Hillis
Breese truck drivers. While Bowling and Ball's initial work
refusal was protected, the issue of whether Riley "knowingly"
violated section 105(c) on March 7, 1995, remains in doubt.
Accordingly, the discrimination complaints filed pursuant to
section 105(c) of the Act against David Riley shall be dismissed.
Similarly, the Secretary's amended discrimination complaints
seeking to impose civil penalties on Riley under section 105(c),
filed on September 15, 1995, shall also be dismissed.[12]
Liability under section 105(c) with respect to Elmo and/or
Tony Mayes is based on whether the complainants have demonstrated
they were the "real operators" in that they were the "real
persons" in control of the personnel decisions at the mine.
11 FMSHRC at 780. Resolution of this issue hinges upon whether
they exercised the requisite "control" over the haulage
operations at Huff Creek.
There is ample evidence demonstrating that Elmo Mayes'
relationship with Mountain Top was not an arms length equipment
leasing arrangement. Elmo Mayes received ten percent of Mountain
Top's net profits from its hauling operations. Mountain Top
operated under a Fuel Tax License issued by the State of Kentucky
to Elmo Mayes, d/b/a E&T trucking. In addition to owning
Mountain Top's trucks, Helen Mayes, Elmo's wife, signed and
issued the pay checks for Mountain Top's drivers. Elmo Mayes
brought the payroll checks to the job site and sometimes
distributed them to Mountain Top's drivers.
Riley had previously worked for Elmo Mayes as an E&T truck
driver for nine years. Kip Bays was also previously employed by
Elmo Mayes. Elmo Mayes had a two-way radio in his home that he
used to communicate with Riley in his truck. Bays and Riley
deferred to Elmo Mayes' management decisions. For example, it
was Elmo Mayes who selected Jackson as the cutoff truck on
February 17, 1995, without any concurrence from Riley or Bays.
Riley kept Elmo Mayes informed of the number of loads hauled
and the number of trucks running. Sometimes Elmo Mayes was on
the job site three or four days a week if there were problems.
Elmo Mayes occasionally rode with drivers on the haul route to
check on the condition of trucks. He retained the authority to
remove a truck from service.
Elmo Mayes had an input in job assignments and he had the
authority to fire Mountain Top employees. In this regard, Elmo
Mayes approved Jackson's mud haulage assignment so that Jackson
could acquire experience as a truck driver. When Jackson asked
Riley for time off to attend a computer class, Riley sought
approval from Elmo Mayes. Elmo Mayes unilaterally fired Jackson
on February 17, 1995, and Bowling and Ball on March 7, 1995. In
fact, Kip Bays was unaware of the circumstances surrounding
Bowling and Ball's March 7 terminations, and he was not familiar
with the facts concerning their subsequent return to work.
Significantly, numerous non-party witnesses testified
regarding the control exercised by Elmo and Tony Mayes over
virtually every aspect of Mountain Top's operations. For
example, Billy Jack Lefevers, Mountain Top's loader operator,
stated that he considered Tony his boss. When he asked Riley for
a raise he was told "you need to talk to Tony or Elmo." (I,
389). In response to his inquiry Elmo told Lefevers, "let me run
the numbers, see how things work out." (I, 390). Kelly, Lone
Mountain's scale man, testified drivers respected and obeyed Elmo
Mayes when he designated them as cutoff driver. As a further
reflection of the commonality of interests between Elmo Mayes,
Tony Mayes and Mayes Trucking, Billy Joe Earl, a former Mountain
Top driver, testified he was given farm work by Elmo Mayes for
approximately six months beginning in June 1995, although he
continued to receive his paycheck from Mayes Trucking, after he
was suspended by Lone Mountain for passing a truck on its haulage
road.
Finally, Elmo Mayes was aware that drivers were working
extremely long hours during the winter of 1995. He opined that
"a man is human" and that the amount of work hours that could be
tolerated safely "depends on the driver." (II, 293). In this
regard Elmo Mayes explained, "I never asked a man to do anything
I wouldn't do myself." (II, 291). Thus, Elmo Mayes supported
the extended working hours in the winter of 1995 that gave rise
to the discrimination complaints in these proceedings.
Thus, the evidence, when viewed in its entirety, reflects
Elmo Mayes exercised unfettered control of Mountain Top's haulage
operations. His total control, without any need for approval
from Bays, Tony Mayes or Riley, provides an adequate basis for
concluding that he was an "operator" as contemplated by section
3(d) of the Act at the time of the subject discriminatory acts in
February and March 1995. As such, Elmo Mayes is a responsible
party liable under section 105(c) of the Act.
The evidence establishing operator status for Tony Mayes is
equally convincing. Tony Mayes was at the Huff Creek site since
October 1994. Kip Bays testified he transferred all control of
operations to Tony Mayes in February 1995 so that Bays could tend
to his ailing mother. This testimony alone supports the
conclusion that Tony Mayes was a person in control.
Tony Mayes control was demonstrated by his assignment of
drivers to trucks. Truck mechanics needed his approval for
repairs. The record reflects Tony Mayes also supervised foreman
Riley. Significantly, Tony Mayes represented Mountain Top in its
dealings with MSHA investigator Harris. Finally, it was Tony
Mayes who recalled Bowling and Ball to work. It was also Tony
Mayes who told Carver, a Mountain Top truck driver, that Jackson
could have his job back if he apologized, although their is no
credible evidence that Jackson was ever offered re-employment.
Thus, Tony Mayes is also a proper party in these proceedings.
ORDER
Accordingly, the Secretary's request to withdraw the
discrimination complaint filed by David Fagan in Docket No.
KENT 95-615-D IS GRANTED. Consequently, Docket No. KENT 95-615-D
IS DISMISSED with prejudice. In addition, as discussed herein,
William David Riley is not a proper party to these 105(c)
proceedings. Therefore, the discrimination complaints in these
matters as they pertain to Riley ARE DISMISSED.
For the reasons set forth above, Walter Jackson's February
17, 1995, work refusal was reasonable, and therefore protected
activity under section 105(c) of the Act. Accordingly, Jackson's
discrimination complaint IS GRANTED. Similarly, the initial
March 7, 1995, work refusals of Lonnie Bowling and Everett
Darrell Ball were also reasonable, and therefore entitled to
statutory protection under the provisions of section 105(c).
Therefore, Bowling and Ball's March 9, 1995, discrimination
complaints ARE GRANTED IN PART.
However, Bowling and Ball have failed to establish they were
the victims of a constructive discharge after they were offered
reinstatement on March 22, 1995. Moreover, their refusal, upon
their return to work, to accept cutoff times as late as 6:00
p.m., which was the cutoff time required of all other drivers,
and, which was the cutoff time they had originally accepted upon
being hired, was unreasonable and unprotected by the Act.
Consequently, their refusal to work the hours required of them
provided an independent and unprotected basis for the termination
of their employment. Therefore, Bowling and Ball's
discrimination complaints with respect to their refusals to
return to work on March 29, 1995, ARE DENIED.
The period for which relief awarded to Jackson under section
105(c) shall be calculated from February 18, 1995, the day
following his protected work refusal, to the present time. The
period for which relief under section 105(c) shall be awarded to
Bowling and Ball is from March 8, 1995, the day following their
protected initial work refusals, through March 22, 1995, the day
they were offered reinstatement.
For the reasons discussed above, IT IS ORDERED that Mountain
Top Trucking, Inc., Mayes Trucking, Inc., Anthony Curtis Mayes
and Elmo Mayes, are jointly and severally liable for the relief
that shall be awarded to Jackson, Bowling and Ball in these
discrimination matters.
Consequently, IT IS FURTHER ORDERED that:
1. Within 21 days of the date of this decision, the parties
shall confer in person or by telephone for the purposes of:
(a) with respect to Bowling and Ball, stipulating to
the amount of back pay and interest computed from
March 8, 1995, through March 22, 1995, less earnings
from other employment, if any, during this period;
(b) with respect to Bowling and Ball, stipulating to
any other reasonable and related economic losses or
relevant litigation costs incurred as a result their
March 7, 1995, termination;
(c) with respect to Jackson, stipulating to a suitable
position and salary, if any, to which Jackson should be
reinstated as an employee of any of the named
respondents who are liable in these proceedings, or, in
the alternative, agreeing on economic reinstatement
terms (i.e., a lump sum agreed upon payment in lieu of
reinstatement);
(d) with respect to Jackson, stipulating to the amount
of back pay and interest computed from February 18,
1995, to the present, less deductions for earnings from
other employment, or deductions for periods when
Jackson was not available for employment, if any;
(e) stipulating to any other reasonable and related
economic losses or relevant litigation costs incurred
as a result of Jackson's February 17, 1995, discharge.
2. If the parties are able to stipulate to the appropriate
relief, they shall file with the judge, within 30 days of the
date of this decision, a Proposed Order for Relief. The
respondents' stipulation of any matter regarding relief shall not
waive or lessen their right to seek review of this decision on
liability or relief.
3. If the parties are unable to stipulate to the relief, the
complainants shall file with the judge and serve on opposing
counsel, within 30 days of the date of this decision, Proposed
Orders for Relief. The complainants' proposed orders must be
supported by documentation such as check stubs from prior or
current employment, if any, tax returns and W-2 forms, and bills
and receipts to support any other losses or expenses claimed.
In addition, Jackson's Proposed Order for Relief should explain
why he withdrew his application for temporary reinstatement in
this matter.
4. If the complainants file Proposed Orders for Relief, the
respondents shall have 14 days to reply. If issues on relief are
raised, a separate hearing on relief will be scheduled.
5. This decision shall not constitute the judge's final
decision in this matter until a final Decision on Relief is
entered. The final Decision will address the issue of what civil
penalties, if any, should be imposed in these matters.
Jerold Feldman
Administrative Law Judge
Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-
2862 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the Appalachian Research
& Defense Fund Of Kentucky, Inc., 630 Maxwelton Court, Lexington, KY
40508 (Certified Mail)
Edward M. Dooley, Esq., P.O. Box 97, Harrogate, TN 37752
(Regular and Certified Mail)
\mca
**FOOTNOTES**
[7]: Driving on narrow, winding roads with steep grades was
a normal condition of the complainants' employment. There is no
evidence of any complaints concerning road conditions that are
relevant to these proceedings.
[8]: As discussed infra, Bowling's refusal to drive #139
because of the broken wheel stud was protected activity under the
Act if made in good faith. However, there is conflicting
evidence regarding whether one broken wheel stud on one set of
rear wheels, that could only be removed with welding, constituted
an out-of-service defect.
[9]: Virtually every Mountain Top driver called in these
matters, as well as Lone Mountain scale man Kelly, testified
normal cutoff times varied between 4:00 and 6:00 p.m.
[10]: Nine round trips during a 12 hour day is consistent
with Ball's completion of seven round trips on March 27, 1995,
during his ten hour workday. (Resp. Ex. 6).
[11]: The term "agent" as defined in section 3(e), 30 U.S.C.
� 802(e), includes "any person charged with ... the
supervision" of miners.
[12]: The Secretary's September 15, 1995, amended
discrimination complaints seeking to impose civil penalties
against Elmo and Tony Mayes uunder section 105(c) are
consistent with Commission Rule 44, 29 C.F.R. � 2700.44.
Rule 44 authorizes the Secretary to seek civil penalties
against parties in a 105(c) proceeding that are consistent
with the penalty criteria in section 110(i), 30 U.S.C. �
820(i). Riley, however, is not a proper party in this
matter.