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[DOCID: f:p95-1d.wais]
READING ANTHRACITE COMPANY
June 21, 1995
Docket No. PENN 95-1-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 21, 1995
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 95-1-D
on behalf of : MSHA Case WILK CD 94-01
WILLIAM KACZMARCZYK, :
Complainant : Ellangowan Refuse Bank
v. : No. 45
:
READING ANTHRACITE COMPANY, :
Respondent :
DECISION ON THE SECRETARY OF LABOR'S MOTION
TO ENFORCE THE ORDER OF TEMPORARY REINSTATEMENT
Appearances: Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Complainant;
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich,
P.C., Pottsville, Pennsylvania, for Respondent.
Before: Judge Amchan
Background
On October 15, 1993, Complainant, William Kaczmarczyk, was
transferred from a light duty position at Respondent's mine to workers
compensation status. He filed a complaint with the U.S. Department of
Labor alleging that this action was taken in retaliation for his
activities as a walkaround representative during an MSHA inspection
that was completed on October 14, 1993.
The Secretary filed an application for temporary rein-statement
with the Commission. Respondent requested a hearing on this application
and, on September 12, 1994, I ordered Complainant temporarily
reinstated. In my order I stated that "Mr. Kaczmarczyk's position,
including financial compensation and benefits, must be no worse than
it would be had he not been placed on compensation status on October
18 (sic), 1993," 16 FMSHRC 1941, 1947.
I further stated, in a footnote, that, "[r]espondent could not, for
example, recall Complainant to work and require him to perform tasks
which he is incapable of doing," 16 FMSHRC 1941, 1974, n. 7. On April
26, 1995, prior to the issuance of my decision in the discrimination
proceeding, the Secretary filed an emergency motion to enforce the
temporary reinstatement order. That motion alleges that between April
17 and 20, 1995, Complainant was assigned tasks that were beyond his
physical limitations in violation of my September 12, 1994 order.
The motion further alleges that Mr. Kaczmarczyk left the mine site
on April 20, 1995, because he was unable to continue to work due to the
stress to which he was subjected by being repeatedly ordered to
perform work that was beyond his physical capabilities (Secretary's
motion page 4, paragraph No. 5). The Secretary contends that
Respondent constructively suspended[1] Mr. Kaczmarczyk on April 20,
1995.
A hearing was held on the Secretary's motion on May 19, 1995, at
which the undersigned and the parties concluded that I would retain
jurisdiction over the Secretary's motion to enforce the temporary
reinstatement order after issuance of my decision on the
discrimination complaint. A decision on the liability portion of the
discrimination complaint was issued on May 24, 1995. In that
decision, I concluded that Complainant's October 15, 1993, transfer
was discriminatory. The matter is pending before me on the questions
of damages and the assessment of a civil penalty.
Findings of Fact
One of the buildings at Respondent's facility is a scale house.
This is a two story structure, one above ground and one below ground.
The lower level is adjacent to a rectangular area that lies beneath a
large scale used to weigh loaded trucks before they leave Respondent's
wet silt processing plant (Tr. 10-17, Sec. Exhs. EM-1, EM-2).
In early spring of 1995, Respondent decided to repair the scale.
The week before April 17, Complainant accompanied a repairmen who went
underneath the scale. They found several inches of water on the floor
beneath the scale which they pumped out. They also found mud on the
floor around the concrete pillars that support the steel rods of the
weighing mechanism. At least one of these rods was broken (Tr.
37-48).
On the morning of April 17, 1995, Foreman David Kerstetter, acting
upon instructions from Respondent's General Manager, Frank Derrick,
ordered Complainant to clean the mud out from underneath the scale so
that Respondent's repairman would have a clear accessway to the broken
components (Tr. 214-19, 266-74). Complainant told Kerstetter that the
task was beyond his physical capabilities (Tr. 52)[2].
Kerstetter described that mud as a fine coating of 1 to 2 inches in
thickness, covering parts of an area approxi-mately 15 feet wide, and
25 to 30 feet in length (Tr. 270-75). Kaczmarczyk described the mud
as being generally 2 to 4 inches in depth and covering an area 12 to
15 feet in width and 50 to 60 feet in length (Tr. 37-39, 48). The two
men agree that the mud would have to be shoveled into 5-gallon buckets
and carried up the stairs to ground level on numerous trips (Tr.
52-54, 274-75, 228 [Prior to April 20, General Manager Derrick
envisioned the mud being brought outside in buckets]).
Upon Kaczmarczyk's refusal to perform the task, Kerstetter consulted
General Manager Frank Derrick and Safety Director David Wolfe. Wolfe
instructed him to tell Kaczmarczyk to do whatever he was capable of
doing (Tr. 255-56).
On Wednesday, April 19, 1995, Kaczmarczyk and Robert Sabaday, another
light duty employee, were assigned to clean up the mud below the scale
(Tr. 66-67, 178). They pumped water out of the lower level of the
scale house, cleaned the steps, and then attempted to clear mud from a
passageway leading to the room beneath the scale (Tr. 69-72). Sabaday
tried to shovel the mud into buckets but found this too difficult (Tr.
183). He then shoveled a path through the mud, placing it in piles
(Tr. 188). Kaczmarczyk used a broom to sweep the path behind him and
also used a dryer on the path (Tr. 185).
Foreman Kerstetter visited this area twice on the morning of April 19.
He admitted to Sabaday that he did not realize how much mud there was
underneath the scale, and in the passageway leading to it (Tr. 187).
Sabaday told Kerstetter that it was too difficult to carry the mud out
in buckets (Tr. 187, 191); Kerstetter instructed the two miners to do
what they were able to do (Tr. 187).
On Wednesday, after observing Complainant and Sabaday, Kerstetter
informed Respondent's General Manager, Frank Derrick, that cleaning
the mud from under the scale was a difficult job (Tr. 225).
Respondent then abandoned its attempt to remove all the mud from under
the scale (Tr. 158, 284), and decided to concentrate on clearing an
area in front of the broken scale components (Tr. 284-85). Derrick
decided that on Thursday, Respondent would have to accomplish this
scaled-down task by means other than carrying the mud out from under
the scale in buckets (Tr. 225-26).
Derrick decided to use a grade-all, a large construction vehicle,
to clean the mud out from under the scale (Tr. 226). He instructed
Kerstetter to assign Mr. Kaczmarczyk to clean papers and wood in the
scale house office on the building's upper floor (Tr. 226-27). Mr.
Sabaday was given an unrelated assignment for April 20.
On April 20, 1995, miner Paul Houser drove the grade-all to the
scale. Kaczmarczyk guided Houser over the scale and Houser dug a hole
alongside the scale with his equipment (Tr. 308). This hole was
intended to facilitate the removal of mud and water from below the
scale (Tr. 88-93).
Shortly thereafter Foreman Kerstetter arrived. Kerstetter told
Kaczmarczyk to shovel the dirt left by Houser's machine off the scale.
This dirt was 2 to 3 inches in height and extended the length of the
scale, possibly a distance of 60 feet. Kaczmarczyk told Kerstetter
that this task was also beyond his physical limits (Tr. 94-98).
Houser cleaned the dirt off the scale with the grade-all(Tr. 313-14).
Kaczmarczyk then went down the steps to the lower level of the scale
house to continue sweeping (Tr. 98-99). Kerstetter followed him and
asked him to make a path to the scale components with a shovel (Tr.
100). Kerstetter took a shovel and demon-strated to Kaczmarczyk how
he thought this task should be accomplished (Tr. 101-104)[3].
Complainant took offense to this request and the manner in which it
was made (Tr. 101-02). Kaczmarczyk told Kerstetter that Kerstetter
was harassing him, and that he would file "charges" against him (Tr.
104-105).
Kerstetter left the area and Complainant called his wife (Tr. 105-07).
He told her that because of the harassment he was subjected to he was
unable to eat (Tr. 106-110). After another phone call, Complainant
decided that he should leave the worksite (Tr. 110, 172-74). He did
not return until May 1, 1995.
Respondent violated the terms of the temporary reinstatement order
on April 17 and April 19, 1995
I conclude that the assignment given to Kaczmarczyk on April 17
and 19, 1995, was beyond his physical capabilities and violated the
temporary reinstatement order. Kerstetter's testimony that on April
19 Respondent abandoned the goal of cleaning the entire area beneath
the scale (Tr. 284), and had decided to clean up only a 4-foot by
4-foot area, confirms Complainant's assertion that the task assigned
on the 17th and the morning of the 19th was far more extensive (see
Sabaday's testimony at Tr. 187-92, 199-200).
Mr. Kaczmarczyk is prohibited from doing repetitive bending and
twisting, particularly while carrying weight such as wet mud on a
shovel (Tr. 265). Mr. Sabaday's testimony confirms that the task, as
originally assigned, was beyond Kaczmarczyk's physical capabilities
(Tr. 187-191).
Up until Kerstetter talked to Sabaday on the morning of April 19,
Respondent contemplated having the mud carried up to ground level and
outside the scale house in 5-gallon buckets (Tr. 228). Although I
credit Respondent's witnesses that they continually told Kaczmarczyk
to do only what he could do, I conclude that such advice was
essentially meaningless in the context in which it was given. There
was no way that Complainant could reasonably expect to accomplish the
task assigned by doing only what he was capable of doing.
General Manager Derrick instructed Kerstetter to have the mud
cleaned up. Although Derrick testified there was no hurry (Tr. 216-17),
the record does not indicate that anybody conveyed to Complainant that
he had an infinite amount of time to accomplish this task. Indeed,
Sabaday was given the impression that the area had to be cleaned right
away so that the scale could be repaired (Tr. 199).
Thus, I conclude that Kaczmarczyk was fully justified in regarding
the admonitions to just do what he could as a subterfuge to pressure him
to do tasks beyond his restrictions. Moreover, it is doubtful that a
person with Complainant's restrictions could have tolerated the
extensive number of trips up the stairs of the scale house with small
buckets of wet mud that were needed to accomplish the task as
originally assigned.
Complainant was not constructively discharged or suspended on April
20, 1995
On April 20, 1995, Kerstetter again asked and pressured Kaczmarczyk
to shovel wet mud, albeit from a much smaller area than on the previous
two days and possibly by pushing it out of the way, rather than by
picking it up. He may also have suggested that Complainant shovel the
mud in buckets because after Kerstetter realized the grade-all could
not remove the mud from underneath the scale, he had no alternative
means of accomplishing the task given to him by General Manager
Derrick.
For purposes of this decision, I conclude it is unnecessary to
determine exactly what Kerstetter told Kaczmarczyk to do on April 20.
As on April 17 and 19, Complainant never performed any of the tasks to
which he objected (Tr. 153). Moreover, he was never threatened with
any form of discipline for not doing these tasks (Tr. 153). Although
Mr. Kaczmarczyk has availed himself of his union's grievance procedure
on several occasions, and has represented other miners in processing
grievances, he did not file a grievance regarding his dispute with
Respondent over his ability to clean the mud under the scale (148-50).
Complainant was clearly very upset by the events of April 17-20, 1995.
He contends that he was so upset that he could not eat and left work
on April 20, due to what he perceived was constant harassment.
The issue in the instant case is not whether Mr. Kaczmarczyk was
sufficiently upset to leave work, but whether conditions were so
intolerable that a reasonable miner would have felt compelled to leave
work, Secretary on behalf of Clayton Nantz v. Nally & Hamilton
Enterprises, Inc., 16 FMSHRC 2208, 2210 (November 1994); Simpson v.
FMSHRC, 842 F.2d 453, 461-63 (D.C. Cir. 1988).
In analyzing the instant case, I have paid particular attention to
a decision by the United States Court of Appeals for the Third Circuit
in Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir. 1993),
cert. denied 114 S. Ct. 441, 126 L. Ed. 2d 374. I do so not only
because of the analogous factual situation, but because the instant
case also arises in the Third Circuit.
In Clowes the court reversed an award entered in a case arising
under the Age Discrimination in Employment Act, finding insufficient
evidence to establish constructive discharge. Clowes, a nurse for 30
years at Allegheny Valley Hospital, alleged that excessive supervision
by a new and much younger supervisor caused her to become so depressed
that she resigned. The court of appeals opined that unfair and
unwarranted treatment does not necessarily constitute a constructive
discharge and that an employee's subjective perception does not
control the resolution of a constructive discharge claim.
As in the instant case, Clowes was never threatened with discharge
or any other adverse action. She never advised the hospital that she
would resign if conditions did not change and never filed a grievance
under her collective bargaining agreement.
As the court notes, such factors may not be necessary to establish
a constructive discharge in all cases. However, in the instant case, I
conclude that a reasonable miner in Mr. Kaczmarczyk's situation, who
had not been threatened with discipline and who regularly avails
himself of the grievance procedure, would not leave work on April 20,
1995, and refuse to return to work until May 1.
In reaching this conclusion, I am influenced by the fact that
several less drastic alternatives were available to Complainant. He
could have filed a grievance and continued to refuse to do work beyond
his physical capabilities. Moreover, Complainant could have petitioned
the undersigned for an order enforcing the temporary reinstatement
order without leaving work.
Respondent requested that Complainant shovel mud on three days.
Foreman Kerstetter may have been less than pleasant in responding to
Kaczmarczyk's refusals to do so. However, Kerstetter did not stand
over Complainant and continually berate him. At worst, he made an
uncomplimentary remark and left the area in which Kaczmarczyk was
working. I conclude that the working conditions to which Complainant
was subjected were not intolerable.
In conclusion, I find that Respondent did violate the terms of the
temporary reinstatement order by ordering Complainant to shovel mud
under the scale on April 17 and 19, and bring it to ground level by
carrying it up a flight of stairs in buckets. It may have also
violated the terms of the order on April 20. However, conditions were
not intolerable for a reasonable miner in Complainant's situation.
Therefore, I conclude that Mr. Kaczmarczyk was not constructively
suspended.
ORDER
Having found that Respondent did not constructively suspend
Complainant on April 20, 1995, I find that Complainant is not entitled
to any relief for the violations of the temporary reinstatement order
that occurred.
Arthur J. Amchan
Administrative Law Judge
FOOTNOTES
[1] At the time the motion was filed Complainant was still off of
work. He returned to work on May 1, 1995, after missing 6-1/2 days,
for which he has not been paid (Tr. 146-47).
[2] Kaczmarczyk's physical limitations are indicated in the
Secretary's Exhibit No. 5 introduced at the Temporary Rein-statement
Hearing. He underwent a cervical spinal fusion in late 1991, and also
has lower back pain (See e.g., Exh. R-6). In January 1992, his
physician indicated that occasional bending, squatting, stooping,
kneeling, crouching, pushing, pulling, and handling are within
Complainant's physical capabilities. Lifting and carrying up to 20
lbs are also within his limits. Other physical demands were not
evaluated.
[3] Kerstetter denies that he ordered Kaczmarczyk to shovel mud
under the scale on April 20, 1995, and contends that he demon-strated
how Complainant should shovel on April 19, not April 20 (Tr. 288-291).
I credit Complainant's testimony on these matters over that of Foreman
Kerstetter.
Although Kerstetter may not have ordered Kaczmarczyk to work
underneath the scale, I find that he did join Complainant at the lower
level of the scale house on April 20. After watching the grade-all,
Kerstetter concluded that the mud could not be removed by this machine
(Tr. 289). Having been told by Derrick to have a path cleaned
underneath the scale and having no other means of accomplishing this
task, I conclude that Kerstetter renewed his request of Complainant
that he shovel a path through the mud.
As to the shoveling demonstration, I rely on the fact that Kerstetter
admits to making such a demonstration (Tr. 291-93), that Kerstetter's
contemporaneous log for April 19 mentions no such demonstration (Tr.
304), while Kaczmarczyk's contempor-aneous notes for April 20 do
mention the incident (Tr. 165-66). Additionally, Mr. Sabaday, who was
with Kaczmarczyk and Kerstetter on April 19, recalls no such event
(Tr. 201). Moreover, a demonstration of April 20 is consistent with a
turn of events in which Kerstetter's only available means of making a
path to the broken parts was to have Complainant make one with a
shovel since Sabaday was no longer present to do the shoveling.
Finally, I simply do not believe that Kaczmarczyk made up
a story about discussing shoveling with Kerstetter on the lower level
of the scale house on April 20. Something occurred precipitating
Kaczmarczyk's departure from the mine site on that morning. I
conclude that it is more likely that his departure was caused by a
dispute over the mud beneath the scale, which was likely to recur,
than over the dirt on top of the scale which would not likely be an
issue in the future.
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 (Certified
Mail)
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C., Second
Street & Laurel Blvd., P.O. Box 450, Pottsville, PA 17901 (Certified
Mail)
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