<DOC>
[DOCID: f:k96-269d.wais]
BLEDSOE COAL CORP.
March 12, 1997
KENT 96-269-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 12, 1997
STEVE NAPIER, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. KENT 96-269-D
v. : MSHA Case No. BARB CD 96-03
:
BLEDSOE COAL CORP., :
f/k/a BITUMINOUS - LAUREL :
MINING, INC., : No. 4 Mine
Respondent : Mine ID 15-11065
:
:
DECISION
Appearances: Neville Smith, Esq., Manchester, Kentucky,
for the Complainant;
Julie O. McClellan, Esq., Marco M. Rajkovich, Jr.,
Esq., Wyatt, Tarrant & Combs, 250 W. Main
Street, Suite 1700, Lexington, Kentucky,
for the Respondent.
Before: Judge Weisberger
I. Statement of the Case
This case is before me based on a Complaint filed by Steve
Napier alleging that he was discriminated against by Bledsoe Coal
Corporation (Bledsoe) in violation of Section 105 of the Federal
Mine Safety and Health Act of 1977 (The Act). Pursuant to notice
the case was heard in Richmond, Kentucky on October 30, and 31,
1996. Subsequent to the hearing, on December 13, 1996,
Complainant filed a Brief and a Proposed Decision containing
Proposed Findings of Fact, and Respondent filed Proposed Findings
of Fact and a Brief. On January 8, 1997, Respondent each filed
objections to the other party's Proposed Findings of Fact.
II. Bledsoe's Operation
Bledsoe Coal Corporation operates the Number 4 Mine, an
underground coal mine. Bledsoe's roof control plan provides for
entries, 20 feet wide, to be cut to a maximum depth of 40 feet.
In normal mining operations, after the entry is cut by the
continuous miner, it is bolted by a Fletcher single head bolter
by drilling holes in the roof and installing bolts at four foot
centers in the sequence illustrated in Respondent's Exhibit
No. 1.
III. Complainant's Evidence
Steven Napier had more than five years experience as a roof
bolter prior to October 19, 1995, operating a Galix 300, and
Fletcher single head bolter. During that period of time, Napier
never received any complaints from any of his employers
concerning his roof bolting. Jerry Pierson, a mine foreman at
Union Mining where Napier had worked as a bolter, testified that
he would judge Napier " . . . as equal, if not better, as anybody
that ever worked for me" (Tr. 190).
On October 19, 1995, Napier was interviewed by Ron Helton,
mine manager at Bledsoe's No. 4 mine, for a position at
Bledsoe as a bolter. Helton told Napier that he was being
hired "on a 90-day trial" (Tr. 37), and that he was required
to insert 200 to 250 bolts per 8 hour shift.
Napier commenced employment with Bledsoe on Thursday,
October 5, 1995. On the first day that Napier actually
worked, he removed rock from a roof fall that had left a
void of 30 feet into the roof. He was then assigned to work
as bolter on a Fletcher single head bolter in the third
shift, which began at 3:00 p.m., and ended 11:30 p.m.
According to Napier, in general, during the time he worked
as a roof bolter at Bledsoe none of his supervisors voiced
any complaints about his work. Napier testified that about
a week prior to October 25, Clifford Sams, who was his
Section Foreman for two or three days, told him that he
(Napier) " . . . was doing alright as far as he [Sams] could
see" (Tr. 105). According to Napier, in the same time
period Harold Hacker, the mine General Foreman, watched him
bolt for about five minutes and said "keep the good work up"
(Tr. 103).
According to Napier, during the time he worked for Bledsoe,
until October 25, 1995, he had seen drawrock on a couple of
occasions in the mine. Each time he saw the draw rock he
pulled it down himself.
Napier testified that prior to October 25, the canopy on his
the bolter had been removed. Napier indicated that a
mechanic, whose first name was Rodney and whose last name
Napier did not know, told him that the bolter could not
clear the low roof with the canopy on. According to Napier,
he asked Rodney to put the canopy on, and Rodney complied,
but later on it was removed again.
According to Napier, during the time that he was working
underground until October 25, he saw entries that had been
cut between 42 to 60 feet.[1]
On October 25, 1995, Napier worked the third shift which was
extended 4 hours into the morning of October 26. For the
first eight hours of Napier's shift, his supervisor, was
James E. Owens, the section foreman. According to Napier,
sometime during the shift, he noted draw rock in the roof of
the Number 4 entry. He had also noted that the entry
extended 60 to 65 feet rather than 40 feet as provided by
the roof control plan. Napier testified that he brought
these two conditions to the attention of Owens and that
Owens told him that " . . . if I complained or said anything
else about a deep cut, that I would be fired right on the
spot, and for me to get my butt back up to work" (Tr. 85).
Napier testified that when he was traveling out of the mine
in a scoop bucket, Owens told him that " . . . if he would
hear me say anything about a deep cut, that he would fire
me" (Tr. 96). Napier then left the mine and went home.
The next day, when Napier arrived at the mine, another
foreman, Clifford Sams, told him that Clyde Collins,
Bledsoe's Superintendent, wanted to see him. Napier related
that he went to see Collins, who asked him how many bolts he
had put up the prior shift. Napier said that he told
Collins that he put up 200 to 250 bolts. According to
Napier, Collins told him that from reports he had received
that Napier had not been keeping his work up. According to
Napier, Collins told him that he was fired.
IV.Discussion
A. Napier's Position
It is Napier's position in essence, that Collins disciplined
him on October 26, because of information furnished by Owens that
Napier was not competent to perform his work. [2] Napier argues
that Owens wanted to get rid of him became of his complaints of
draw rock, and a deep cut. Napier cites Owen's testimony that a
supervisor who permitted deep cuts at Bledsoe would be fired.
It is thus argued that since on October 25, Owens had just
returned from a week off for permitting a safety violation to
have occurred in his section, he would have been fired if
Bledsoe's management would have become aware of a deep cut.
B. Applicable Case Law and Analysis
The Commission, in Braithwaite v. Tri-Star Mining,
15 FMSHRC 2460 (December 1993), reiterated the legal
standards to be applied in a case where a miner has
alleged that he was subject to acts of discrimination. The
Commission, Tri-Star, at 2463-2464, stated as follows:
The principles governing analysis of a discrimination case
under the Mine Act are well settled. A miner establishes a
prima facie case of prohibited discrimination by proving
that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on
other grounds, sub nom. Consolidation Coal Co., v. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981). The operator may rebut the prima facie case
by showing either that no protected activity occurred or
that the adverse action was in no part motivated by
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 in any event for the unprotected activity alone.
Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817-
18; see also Eastern Assoc. Coal Corporation, v. United
Castle Coal Co., 813 F.2d 639, 642 (4th Cir. 1987).
Hence, in order for Napier to prevail, he must first
establish that he was engaged in protected activities. In
general, Napier testified to having observed drawrock, and entry
cuts in access of 40 feet. He also testified that he had to
operate a roof bolter without a canopy. These conditions could
be found to be within the preview of safety concerns. However,
although Napier testified to having observed these conditions
prior to October 25, at no time prior to October 25, did he bring
to the attention of any of Bledsoe's agents the existence of
these conditions, or his concerns in these regards.
According to Napier, on the last night that he worked, i.e.,
October 25, he did complain to Owens regarding the deep cut, and
draw rock that he had observed. Napier said that in response,
Owens told him "that if I complained or said anything else about
a deep cut, that I would be fired right on the spot, and for me
to get my butt back up to work" (Tr. 85). On the other hand,
Owens, when asked regarding this complaint, stated that Napier
never complained to him about deep cuts or draw rock. I observed
the demeanor of Napier and Owens, and found Owens to be more
credible on this critical point. Also, Napier failed to produce
any witnesses to support his observations of draw rock and deep
cuts[3], and his having reported these conditions to Owens.
According to Napier, when he complained to Owens on October 25,
about the deep cuts and the draw rock, Joe B. Smith and another
roof bolter by the name of Lonnie Hill, were located
approximately eight feet away. However, neither Hill nor Smith
corroborated Napier's version. Hill was not called to testify on
Napier's behalf, and Smith testified that he did not hear Napier
report deep cuts to Owens.
Further, in general, Napier's testimony concerning the
length of the deep cut taken on October 25, and the number of
bolts he installed that shift is both confusing and
contradictory, and hence unreliable. Initially, Napier was asked
how many 30 inch holes he had drilled and he stated "I would say
approximately that 120 that night" (Tr. 62). He said that all of
these 120 holes were in the No. 4 heading (Tr. 63). Later on his
testimony the indicated that he had drilled holes in a break
(Tr. 69). Napier indicated that the second time the miner went into the
Number 4 heading, it made a cut that was between 60 and 65 feet
deep. He was asked how many rows of bolts he had put in this
heading, and he indicated that he put up 15 or 16, but he was not
positive and that "I didn't count the bolts that day" (Tr. 89).
A little bit later on in the questioning, he was asked how many
bolts he put in, and he said that after he put 40 bolts, he put
up 10 or 12 more rows, each row consisting of four bolts
(Tr. 90). On cross examination, he was asked whether it was
correct that he put up 40 bolts, and then put up 10 to 12 more
rows which would have made it an 80 foot deep cut, and he
answered as follows (Tr. 143):
A. Well, I said between 10 and 12. I bolted 10
rows -- 5 rows up, I think. That's when I
came back and I bolted the two. That's when
they had me to back out because they was
going to cut the break through. Okay. After
they cut that break through, then that's when
they went back up in there and cut that
heading again. And I wasn't even done with
it yet.
Q. But you're not sure how many more rows of bolts
you put up?
A. No, not exactly sure, no.
Q. Well, then how do you know how deep the cut
was? I mean were you just looking at it and
you were thinking that it was probably 60 to
65 feet?
A. Right (Tr. 143-144).
In subsequent questioning, on cross-examination, he
indicated that he put up 19 rows in the heading (Tr. 144-
145). In follow-up questioning he was asked whether he
counted the 19 rows and he indicated that he did (Tr. 145-
146). Continued cross-examination further confuses the
matter. His testimony is as follows:
Q. Now on this night, the night before you were
sent into see Clyde Collins, first you said
that there was about 60 or 65 and you were
just judging by looking, but now is your
testimony that you weren't just judging by
looking, that you actually counted and you
put up 19 rows? I just want to make sure I
understand you.
A. Right. I put up about 18 or 19 rows, but I didn't add
them up to see if it was actually 76 foot. I just knew
it was over 40 foot, and I figured, you know, without
adding up, it was about 60, 65 foot. I didn't add it
up to make sure it was deep. But I really didn't think
nothing else about it.
You didn't really think what?
* * *
I said I really didn't think too much about it.
I just didn't add it up to make sure that it was 76 feet.
You know, I just took a guess that's what it was
without adding them up.
Q. Are you saying that you counted bolts that night
or not?
A. Yes.
Q. You did count them?
A. Right
Q. There were 19 rows?
A. 19 rows.
Q. So you weren't just judging by looking when you're
saying there was 19 rows of bolts?
A. Right (Tr. 146-147).
The redirect examination of Napier in these regards is also
confusing. The pertinent testimony is as follows:
Q. . . . [W]ould you, again, explain the sequence of
mining in the Number 4 heading and how you got
this 60 to 65 foot figure and these other figures
that you've testified about?
A. Okay. When they cut it, they cut it about 60 to
65 foot. That's by me just visually looking at
it.
Q. That's the first time they cut it?
A. Right.
Q. Okay.
A. Okay --
HON. AVRAM WEISBERGER: You're referring to the area
that's inby the break that has 3 R and 4 R in it in
Complainant's Exhibit 1?
MR. NAPIER: Right. And when I started bolting, I put
like five rows up. Then I backed up and --
Q. And that was five rows of two bolts?
A. Right.
Q. Okay.
A. And then I backed up and I started putting two
more rows up. The rest of it up here --
HON. AVRAM WEISBERGER: Excuse me. You're
going fast. You started then on the two rows
on the right?
MR. NAPIER: Right.
HON. AVRAM WEISBERGER: Okay
MR. NAPIER: That's when Eddie told me to back
up and start drilling my 30-inch holes
because they was going to cut 4 right.
HON. AVRAM WEISBERGER: Where did he tell you
to drill the 30-inch holes?
MR. NAPIER: Back in the breaks, back behind.
HON. AVRAM WEISBERGER: In the breaks 3R and
4R, or in the breaks with the 'X'? [4]
MR. NAPIER: Where the 'X' is, the piece where
I left off at.
HON. AVRAM WEISBERGER: Sir?
Q. Then what happened?
A. After they cut 4 right, they backed up and
went right back into 4 heading again, which
was not completely bolted. That's when they
cut another 10 or 12 rows deep up in it
there.
Q. So that when you first looked at the 4 heading
inby the yellow line that's drawn on Exhibit 1 of
the Complainant, you estimated it to be 60 to 65
feet deep?
A. Right.
Q. And then after you did that partial bolting, then
the company went back in and cut that same one
deeper before it was completely bolted?
A. That's right.
Q. And then did you -- was that when you counted
rows, or did you ever count rows? I'm not sure
about that.
A. I -- I counted them as -- at the end of the shift
when I backed out. When I - when it was time to
go home,, that's when I counted by rows back out.
Q. And did you count them to the point where you had
initially bolted the five rows and the two rows?
A. Yes, sir.
Q. Did you include that in the count?
A. Yes. (Tr. 179-181).
Hence, the record evidences confusion and lack of carlity in
Napier's testimony regarding the sequence of events on October
25, the depth of the cut that had exceeded 40 feet, when this cut
was taken, and the basis for Napier's conclusion that the depth
of the cut exceeded 40 feet. I find that this lack of clarity in
Napier's testimony tends to taint the credibility of the balance
of his uncorroborated testimony, especially that of his alleged
conversation with Owens which was contradicted by Owens.
For all the above reasons, I find that Napier has failed to
establish that he was engaged in protected activity, ie., that he
communicated safety concerns about drawrock, the lack of a
canopy, and deep cuts to Owens. Further, there is no evidence
that Napier at any time communicated safety concerns to any of
Bledsoes' agents. Although Napier testified that he was fired by
Collins, Napier did not allege that he had communicated any
safety concerns to him. For all these reasons I find that Napier
has not established that he was engaged in any protected
activities. As such, his claim of discrimination must fail.
V. Order
It is ORDERED that Napier's Complaint be dismissed, and that
this case be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Neville Smith, Esq., 110 Lawyer Street, P.O. Box 447, Manchester,
KY 40962 (Certified Mail)
Marco M. Rajkovich, Jr., Esq., Julie O. McClellan, Esq., Wyatt,
Tarrant & Combs, 250 W. Main Street, Suite 1700, Lexington, KY
40507 (Certified Mail)
/mh
**FOOTNOTES**
[1]:Napier's testimony is confusing regarding the depth of
the cuts that he observed that exceeded 40 feet. He indicated
that on an evening that was not October 25 he saw a deep cut. He
said he counted 19 rows and the deep cut was about 76 foot
(Tr. 138). He agreed with Respondent's counsel that it "would be
76 foot cut because there's generally one four foot per bolt ...
." (Tr. 138). However, at a point later on in his cross
examination he was asked whether he counted the rows and he
indicated that the bolt machine operator told him that "I've got
19 rows of bolts in this place here" (Tr. 139).
[2]:It is significant to note that there is no evidence that
Collins had the authority to fire Napier. Collins' testimony
that he did not have such authority was not contradicted or
impeached. Further, there is no evidence that Collins had
knowledge of any safety complaints made by Napier. Moreover,
Napier was not subject to any disparate treatment. The same
evening that Collins spoke to Napier, he also told another
employee, Steve Sizemore, that he was not doing his job and
instructed him to talk to Ron Hilton, Bledsoe's General
Superintendent who had the authority to fire employees.
[3]:In this connection, I note that Joe B. Smith, a miner
operator who worked on the second shift testified that he had
never taken any deep cuts. Also, Bledsoe's witnesses, Owens, and
David Wayne Osborne, who worked in the 002 Section, and Sams who
worked in the mine daily in October 1995, all testified that they
never saw any deep cuts.
[4]:See Complainant's Exhibit 1