<DOC>
[DOCID: f:l95-78.wais]
CONSOLIDATION COAL COMPANY
June 15, 1995
LAKE 95-78-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 15, 1995
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-78-D
ON BEHALF OF : VINC CD 94-10
RICHARD E. GLOVER AND :
LEON KEHRER, :
Complainants : Rend Lake Mine 11-00601
v. :
:
CONSOLIDATION COAL COMPANY, :
Respondent :
DECISION
Appearances: Lisa A. Gray, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois
for the Complainant;
Elizabeth Chamberlin, Esq., Pittsburgh,
Pennsylvania for the Respondent.
Before: Judge Melick
This case is before me upon the complaint by the
Secretary of Labor on behalf of Richard E. Glover and Leon
Kehrer pursuant to Section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801, et seq.,
the "Act". The Secretary alleges that the Consolidation
Coal Company (Consol) transferred these complainants in
violation of Section 105(c)(1) of the Act[1] because of
their activities as miners' representatives. In particular,
it is alleged that the Complainants were removed from their
jobs as "scooter barn" mechanics on June 21, 1994, because
their "walkaround" duties performed under Section 103(f) of
the Act purportedly interfered with the efficiency of the
scooter barn area.[2] Indeed it is undisputed that Consol
removed the Complainants from their jobs as scooter barn
mechanics because of their activities as miners'
representatives in order to make the scooter barn area more
efficient.
A preliminary issue is whether the Complainants were
in fact "representatives of miners" within the meaning of
the Act during relevant times and, in particular on June
21, 1994, when they were transferred. Pursuant to the
directive in Section 103(f) of the Act the Secretary in
his regulations at 30 C.F.R. � 40.1(b) has defined
representative of miners as "any person or organization
which represents two or more miners at a coal or other mine
for the purposes of the Act." Moreover, in Utah Power and
Light Company v. Secretary, 897 F.2d 447, 455 (10th Cir.
1990) the circuit Court confirmed that any person or
organization representing two or more miners is a miners'
representative under Section 40.1(b).
In this case the Complainants both testified that
prior to June 21, 1994, they were appointed as "safety
committeemen" by an official of the local union in order
to perform walkaround functions under the Act. Moreover,
in each case, that appointment was confirmed by vote of
the local union composed of miners at the Rend Lake Mine.
It may reasonably be inferred from this undisputed
evidence, therefore, that both Glover and Kehrer were, as
of June 21, 1994, appropriately representing two or more
miners at the Rend Lake Mine and were accordingly
representatives of miners within the meaning of Section
103(f) of the Act.
Factual Background
Both Glover and Kehrer had worked as "scooter barn"
mechanics at the Rend Lake Mine for many years prior to
June 21, 1994. Glover had worked at the mine for 25
years and for 17 of those years had been a "scooter barn"
mechanic. Kehrer had worked at the mine for 21 years.
The scooter barn is located underground and on June 21,
1994, was situated about 150 feet from the bottom of the
"B" shaft. It is a shop area 18 feet by 70 feet in size
with rock walls, a beamed ceiling and a cement floor
containing equipment including welders, drill presses,
and grinders. One mechanic on each of the three shifts
works out of the scooter barn and is ordinarily supervised
only at the beginning of the shift. Glover worked
primarily on rubber-tired equipment and occasionally
worked outside the scooter barn on heavier equipment.
Glover was then also a representative of miners serving as
a "walkaround" with mine inspectors about two thirds of
his work time. He later estimated that he and Kehrer (on
the "C" shift) each spent four days out of five working as
walkarounds.
According to Glover, at the end of his shift on
Friday, June 21, 1994, he was told by his boss, Vernell
Burton, that he would be taken out of the scooter barn
because of his work as a walkaround. Burton also told
him there was a possibility that if he would quit his
walkaround activities he could stay at the scooter barn.
When Glover returned to work on Monday, June 24, he was
transferred to work as a mechanic on the 1-G Section. He
again asked Burton if he would be permitted to stay at
the scooter barn if he gave up his walkaround duties but
Burton did not respond. At the end of his shift Glover
and Complainant Leon Kehrer went to the mine
superintendent's office. According to Glover,
Superintendent Wetzel explained that the job transfer was
made to increase productivity at the scooter barn. At
this meeting, maintenance supervisor Wamsley offered the
Complainants the option to quit their walkaround duties
and remain in the scooter barn but Wetzel overruled him,
stating that it was not an option. Glover acknowledged
that Wetzel told him that he was doing a good job as a
walkaround but they needed somebody full time in the
scooter barn.
According to Glover, working on the section as an
underground mechanic is significantly less desirable than
working in the scooter barn and conditions on the section
were more hazardous. Because of this Glover subsequently
bid on a motorman job taking a $1.00-an-hour pay cut.
Billy Ray Sanders, a former inspector for the
Illinois Department of Mines and Minerals, was performing
an inspection at the Rend Lake Mine on June 21, 1994. He
happened to be outside the office of Maintenance
Supervisor John Moore when he overheard Moore tell Kehrer
that they had a meeting and decided to remove him from his
job in the scooter barn because of his work as a
"walkaround" for Federal and State Inspectors. Sanders
heard Moore tell Kehrer that if he wanted to give up his
walkaround duties he could remain as a scooter barn
mechanic but otherwise he would be transferred to the
section. Kehrer asked for Sanders' assistance to prevent
his transfer but, upon checking with his legal department,
Sanders found he could not help.
Kehrer heard about his possible transfer from the
scooter barn because of his duties as a "walkaround" from
one of his bosses, Randy Price. Assistant Maintenance
Superintendent John Moore also told Kehrer that he was to
be transferred from the scooter barn because of his
walkaround activities. Scott Wamsley confirmed to Kehrer
that he either had to quit his walkaround duties or lose
his job as a scooter barn mechanic. Kehrer then met with
Wetzel who repeatedly stated that "my official statement
[reason] is to make the scooter barn more productive."
Kehrer testified that he was then transferred to the
3-F Section and initially had no supervisor, no tools and
no work assignments. According to Kehrer the section
mechanics perform more difficult and heavier work and are
subject to more dangerous conditions than scooter barn
mechanics. They work with A.C. power, and are exposed to
dust, methane and potentially dangerous roof and rib
conditions.
Kehrer also noted that the scooter barn mechanic on
the B-shift was not a representative of miners and was
not transferred to the sections unlike he and Glover.
Kehrer conceded that there was, indeed, a transportation
problem at the mine because the bad road conditions in the
mine damaged equipment. He also noted that there were not
enough mantrips in the mine in any event.
On behalf of Consol, Lead Maintenance Foreman Vernell
Barton testified that during June 1994, he was in charge
of the service and maintenance of the transportation
equipment. He had a good working relationship with both
Complainants and was not involved in the transfer decision.
Barton had been told that Glover was transferred because
the time he was missing on day shift left them short
handed. They had to use a fill-in mechanic in the scooter
barn in Glover's absence and initially the replacements
were not as skilled. He was told several months before
June 1994, that they needed to have someone at the scooter
barn at all times because of the aging of the equipment
and the increasing use of diesel equipment required
increased maintenance.
John Robert Moore testified that he was an assistant
to the master mechanic in June 1994, in charge of the
transportation equipment. He too reported to Scott
Wamsley. Moore was also involved in the decision to
transfer the Complainants. He recalled a staff meeting
on June 11 to discuss various problems at the mine
including inadequate transportation of the hourly
employees to their work stations. Nine of the people
attending the meeting raised this issue and the apparently
related problem of not always having a mechanic available
in the scooter barn. They wanted a mechanic to be
available at the scooter barn 24 hours a day. Moore
testified that he was told by Wamsley that it would be
necessary to move the Complainants out of the scooter barn
to have somebody available all the time. According to
Moore they also needed someone trained to work on their
new diesel equipment available all the time.
Moore testified that in June 1994, although there
were nine or ten mechanics working on each of the three
shifts and that any one of these could have worked on the
section as mechanics, only one or two per shift were
capable of working in the scooter barn as substitutes.
Moore acknowledged, however, that the transportation
problems they had in June 1994, were the same problems
they had since 1989. Moore maintains that they did not
have the people to train to fill in. Moore acknowledged
that he told Kehrer that if he would give up his
walkaround duties he could stay in the scooter barn.
Mine Superintendent Joseph Wetzel testified that he
scheduled the management meeting on June 11, 1994, to
"define roles and solve problems". According to Wetzel
the subsequent transfer of the Complainants was not as
punishment but was the result of transportation problems.
Wetzel testified that someone suggested offering the
Complainants a choice to resign as representatives of
miners but he wanted them to continue in that capacity and
therefore did not give them a choice. Wetzel also
testified that since their transfer the maintenance staff
had been increased but not sufficiently to allow for
fill-ins at the scooter barn.
When the above essentially undisputed facts are
distilled, what emerges is in essence a policy by Consol
that effectively bars miners' representatives at the Rend
Lake Mine from holding the position of scooter barn
mechanic. It may also reasonably be inferred from the
evidence that under this policy no one serving as a
miners' representative could even be considered for the
scooter barn job because of his activities as a miners'
representative. Conversely, under the Consol policy no
person presently holding the position of scooter barn
mechanic could accept the duties as a miners'
representative without fear of losing his scooter barn
job and being transferred to less desirable and more
hazardous work.
Analysis
Ordinarily it is essential in proving a case of
discrimination under section 105(c)(1) of the Act that
there be a determination of unlawful motive. The Act
prohibits retaliatory conduct or discrimination that is
motivated by a miner's exercising any protected right.
Nevertheless, situations have arisen in which proof that
adverse action was improperly motivated has not been
required. The Supreme Court has permitted a showing of
facial discrimination under section 8(a)(3) of the
National Labor Relations Act ("NLRA"), 29 U.S.C.
� 158(s)(3): "Some conduct . . . is so 'inherently
destructive of employee interests' that it may be deemed
proscribed without need for proof of an underlying
improper motive." NLRB v. Great Dane Trailers, 388 U.S.
26, 33 (1967)(citations omitted). Moreover, the
Commission held in UMWA and Carney v. Consolidation Coal
Co., 1 FMSHRC 338, 341 (1979), that an operator's
business policy was facially discriminatory. There, the
Commission found that, under section 110(b) of the Coal
Act (30 U.S.C. � 820(b)(1976) (amended 1977), the
predecessor to section 105(c), a company policy requiring
union safety committeemen to obtain permission from
management before leaving work to perform safety duties
was unlawful because it impeded a miner's ability to
inform the Secretary of alleged safety violations. See
also Simpson v. FMSHRC, 842 F.2d 453, 462-63 (D.C. Cir.
1988)(when mine conditions intolerable, operator motive
need not be proven to establish constructive discharge).
Cf. Secretary on behalf of Price and Vacha v. Jim Walter
Resources, Inc., 12 FMSHRC 1521, 1532-33 (1990)(held that
operator's policy was not facially discriminatory.)
In Swift et al. v. Consolidation Coal Company,
16 FMSHRC 201, 206 (1994), the Commission held that in
order to establish that a business policy is
discriminatory on its face, a complainant must show that
the explicit terms of the policy, apart from motivation or
any particular application, plainly interferes with rights
under the Act or discriminates against a protected class.
The Commission further noted that once a policy is found
to be discriminatory on its face, an operator may not
raise as a defense the lack of discriminatory motivation
or valid business purpose in instituting the policy.
When reviewing a claim of facial discrimination, the
Commission has also stated:
"The Commission does not sit as a super grievance
board to judge the industrial merits, fairness,
reasonableness, or wisdom of [a challenged business
program or policy] apart from the scope and focus
appropriate to analysis under section 105(c) of the
Mine Act." Our limited purpose is to focus simply
on whether the [program] or enforcement of some
component thereof conflicts with rights protected by
the Mine Act.
Price and Vacha 12 FMSHRC at 1532 (citation omitted).
Within this framework of law it is clear that
Consol's policy herein is, indeed, facially
discriminatory. By effectively barring miners'
representatives from holding the desirable job of scooter
barn mechanic, by discouraging persons who might wish to
work as scooter barn mechanics from becoming miners'
representatives and by removing persons from such a
position upon the assumption of activities as a miners'
representative, Consol's policy unlawfully discriminates
against the protected class of miners' representatives
and those who would otherwise be willing to serve in that
capacity. It is significant to note that this policy also
effectively restricts miners' rights to select whom they
wish to have represent them under Section 103(f) of the
Act. See Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257
(D.C. Cir. 1994), petition for cert. filed, 63 U.S.L.W.
3805 (U.S. Apr. 14, 1995) (No. 94-1685). Under the
circumstances Consol's policy which led to the transfer
of the complainants herein is facially discriminatory and
in violation of the Act.
The policy at issue and the specific action by Consol
in transferring the Complainants in this case for their
activities as miners' representatives is also
discriminatory under the customary analysis applied to
discrimination cases. The Commission has long held that a
miner seeking to establish a prima facie case of
discrimination under section 105(c) of the Act bears the
burden of persuasion 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., 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 any protected
activity. If an operator cannot rebut the prima facie case
in this manner, it may nevertheless defend affirmatively by
proving that it would have taken the adverse action in any
event on the basis of the miner's unprotected activity
alone. Pasula, supra; Robinette, supra. See also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987); Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194,
195-96 (6th Cir. 1983)(specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413
(1983) (approving nearly identical test under National
Labor Relations Act).
There is no dispute in this case that both
Complainants, as miners' representatives, were members of
a protected class and had engaged in protected activity
prior to their transfer. It is also clear that the
adverse action complained of (the transfer of the
Complainants from their job as scooter barn mechanics to
section mechanics) was motivated solely by their
protected activity as miners' representatives (because of
their time-consuming work in that capacity). Since this
case does not therefore involve a "mixed-motive",
discrimination under the Act is established and no
further analysis under Pasula is necessary.
Consol cannot under the circumstances prevail with
an affirmative defense that it based its transfer of
Glover and Kehrer on unprotected activity alone since it
admits that their transfer was based upon their
activities as miners' representatives. Indeed, it cannot
be disputed that the adverse action was solely motivated
by the fact that the Complainants were performing their
duties as representatives of miners. They were
admittedly transferred because their walkaround duties
detracted from the time devoted to their duties as
scooter barn mechanics. The Secretary has in this manner,
therefore, also proven discrimination under the Pasula
analysis.
Even assuming, arguendo, that this case involves a
"mixed motive" in the sense that Consol was also
motivated in transferring Glover and Kehrer by business
related concerns that their activities as miners'
representatives was affecting mine productivity and
efficiency, those concerns cannot prevail over the express
Congressional intent to construe Section 105(c)
"expansively to assure that miners will not be inhibited
in any way in exercising any rights afforded by the
[Act]." S. Rep. No. 95-181, 95th Cong., 1st Sess., at
35 & 36 (1977) ["S. Rep."], reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 623 & 624 (1978) ["Leg.
Hist."].
That Senate Committee also stated in that report as
follows:
"If our national mine safety and health program
is to be truly effective, miners will have to play
an active part in the enforcement of the Act. The
Committee is cognizant 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".
Moreover, in creating a protected class of miners'
representatives under Section 103(f) of the Act, Congress
expressly recognized that there would be related economic
costs to the industry. Thus, while it may be true that
Consol could operate more productively and efficiently by
prohibiting miners' representatives from holding certain
jobs, Congress has clearly determined that such business
reasons cannot be used to justify discrimination against
them as Consol suggests herein.
Considering the serious impact Consol's actions
herein would have on the willingness of persons to serve
as miners' representatives and the intentional and obvious
discriminatory nature of its actions in conjunction with
other criteria under Section 110(i) of the Act, I find
that a civil penalty of $10,000 is appropriate.
ORDER
In accordance with the damages requested by the
Secretary, Consolidation Coal Company is hereby directed
to (1) immediately restore the Complainants to their
positions as scooter barn mechanics at the appropriate
rate of pay for the position, and (2) post for a period
of not less than 60 days a notice at Rend Lake Mine in
a prominent place frequented by miners, which states its
recognition of miners' statutory rights to file complaints
of discrimination and to participate as miners'
representatives with the Mine Safety and Health
Administration; and its commitment to honor these rights,
and not to interfere in any manner with the exercise of
these rights. Consolidation Coal Company is further
directed to pay civil penalties of $10,000 for the
violations in this case.
Gary Melick
Administrative Law Judge
(703) 756-6262
Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15421 (Certified
Mail)
/jf
**FOOTNOTES**
[1]: Section 105(c)(1) of the Act provides as
follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
Act because such miner, representative of miners or
applicant for employment has filed or made a
complaint under or related to this Act, including a
complaint notifying the operator or the operator's
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because
such miner, representative of miners or applicant for
employment is the subject of medical evaluations and
potential transfer under a standard published pursuant
to section 101 or because such miner, representative
of miners or applicant for employment has instituted
or caused to be instituted any proceeding under or
related to this Act or has testified or is about to
testify in any such proceeding, or because of the
exercise by such miner, representative of miners or
applicant for employment on behalf of himself or
others of any statutory right afforded by this Act.
[2]: Section 103(f) provides that "[s]ubject to
regulations issued by the Secretary, a representative of
the operator and a representative authorized by his miners
shall be given an opportunity to accompany the Secretary
or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the
provisions of subsection (a), for the purpose of aiding
such inspection and to participate in pre- or post-
inspection conferences held at the mine."