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READING ANTHRACITE COMPANY
August 1, 2000
PENN 99-159-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         August 1, 2000

SECRETARY OF LABOR,           :  DISCRIMINATION PROCEEDINGS
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   :
     on behalf of             :
     LEONARD M. BERNARDYN,    :  Docket No. PENN 99-158-D
               Complainant    :  WILK CD 99-01
                              :
          v.                  :  Docket No. PENN 99-129-D
                              :  WILK CD 99-01
READING ANTHRACITE COMPANY,   :
               Respondent     :  Wadesville Pit
                              :  Mine ID 36-01977

                                  DECISION ON REMAND

Appearances:  Troy E. Leitzel, Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia, Pennsyl-
              vania, for the Complainant;
              Martin J. Cerullo, Esq., Cerullo, Datte &
              Wallbillich,
              Pottsville, Pennsylvania, for the Respondent.

Before:  Judge Weisberger

                    The Statement of the Case

     This discrimination proceeding is before me based on the
Commission's decision in this matter, 22 FMSHRC 298 (March 2000)
which vacated my initial decision in this case, 21 FMSHRC 819
(July 1999), and remanded this matter for "further analysis" of
the issue of whether Respondent had established its affirmative
defense that Bernardyn would have been fired in any event based
on his unprotected activities i.e., the use of profanity over a
C.B. radio, and the use of threatening language he directed at
Wapinski, the general superintendent at the site.  On May 5,
2000, Respondent filed a brief.  The Secretary's brief was
received on May 30, 2000.  On June 9, 2000 Respondent's reply
brief was received.

I.   Bernardyn's Statement Constituted a Threat.

     According to Bernardyn, after he was stopped by Wapinski for
going too slow, he stated, over the C.B. radio, that he was being
harassed, and that he was asked to drive faster than warranted by
the road conditions.  Bernardyn indicated that he did use curse
words at the time.  He did not contradict or impeach the
testimony of Derrick, that he (Bernardyn) used the following
language over the C.B. radio "I will get the little f----r".

     Bernardyn testified that he had never threatened anybody in
his life.  I find this general statement insufficient to
contradict or impeach Derrick's testimony regarding the specific
language used by Bernardyn.  Further, although Bernardyn might,
in his own mind, have considered the language that he used not to
have constituted a threat, I do not find this dispositive of the
issue of whether the words used by him constituted an expression
of an intent to inflict harm on Wapinski .  To the contrary, I
find more significant the objective context in which Bernardyn
uttered the statement at issue.  I note that the statement was
made over the C.B. by Bernardyn in an attempt to contact his
union representative, in reaction to the incident in which
Wapinski stopped him and told him that he was going too slow at a
time when Bernardyn had concluded that the road was getting
slippery.   Also, Bernardyn conceded that he did use curse words
at the time, evidencing a degree of animus.  Within this
framework, I conclude that Bernardyn's statement over the C.B.
constituted a threat, i.e., an expression of an intent to inflict
harm on another.  (See, Webster Third New International
Dictionary) (1986 edition)).

II. The 1987 Policy and the 1998 Policy.

     In its decision, the Commission noted the dispute between
the parties as to which disciplinary policy was in effect at the
time of Bernardyn's discharge i.e., a 1987 policy which provided,
that, inter alia "[r]efusal to obey orders or failure to carry
out instructions or assignments (`Insubordination') to be a
serious offense, and that the offending miner would be discharged
after "complete exhaustion of disciplinary warnings and
suspensions," or a 1998 policy providing that insubordination
will result in discharge without exhausting disciplinary warnings
and suspensions.  In this connection, I note that a letter from
Reading's attorney, Howard A. Rosenthal, to Daniel J. Kane,
executive board member of the United Mine Workers of America,
dated August 4, 1998, states, as pertinent, "... the Company will
implement the attached Code of Conduct following the conclusion
of the current negotiations and ratification of the new
collective bargaining agreement."  Hence, the Company committed
itself to implement the 1998 policy upon ratification of the new
collective bargaining agreement.  Jay Berger, District Executive
Board Member of the United Mine Workers, testified that the new
agreement was not ratified until November 16, 1998, i.e.,
subsequent to the adverse action taken against Bernardyn.  This
statement appears to be coorborated in language contained in a
letter written by Rosenthal to Kane, dated November 17, 1998,
which contains the following language "this letter confirms that
the Company has accepted the changes to the Supplemental
Memorandum of Agreement dated October 27, 1998, which we
understand was ratified, in advance by the UMWA."  Within this
context, I find that it was more probable than not that the 1998
disciplinary policy was not in effect at the time of Bernardyn's
termination.

III. Whether Bernardyn Suffered Disparate Treatment.

     I take cognizance of the fact that John Downey, the
President of the local union, who had worked for Reading for
approximately 20 years until June 1998, indicated that in
September 1998, at a grievance hearing that he attended, it
"c[a]me out" (Tr. 28, May 18, 1999) that Edward Mitchell, a truck
driver employed by Reading, who had alleged he was "forced" to
drive a truck not in his classification, directed the following
towards his supervisor: "you can s--- my d--- if you think I will
drive that truck." ( Tr. 29, May 18, 1999).  According to Downey,
Mitchell was not discharged by Reading for the use of the
profanity, but instead was fired for refusing to perform a job
task that was not in his classification.  Downey stated that
Mitchell was rehired the following day.  Also, three other
individuals working for Reading who had used profanity directed
against their foremen had only been given warnings.

     However, based on Derrick's testimony, that I find credible,
inasmuch as it was not impeached or contradicted, that, in
contrast to these individuals who just received warnings,
Bernardyn used threatening language over the C.B. radio, whereas
the other individuals did not use threatening language, and did
not broadcast their profanity over the C.B. radio.  Further, the
other individuals made a profane remark only once, whereas
Bernardyn used profanity "non stop" (Tr. 21, May 19, 1999) for
approximately 8 to 10 minutes.  I thus find that Bernardyn's
conduct was more egregious, and thus not in the same category as
the others who were merely warned.

IV.  Provocation

     The only evidence in the record relating to whether
Reading's agents' actions or words provoked or incited Bernardyn
to curse and issue a threat, is Bernardyn's testimony that when
he was stopped by Wapinski and told that he was going too slow,
he explained to Wapinski that it was getting slippery, and
Wapinski responded by telling him "get the thing moving and get
going".  Wapinski testified that he told Bernardyn "pick it up
when and where you can".  It also appears that Bernardyn felt
that he was being harassed and expressed this over the C.B.

     I find that although Bernardyn may have subjectively felt
that he was being harassed by Wapinski, the Secretary has failed
to establish that Reading provoked Bernardyn into using profanity
and issuing a threat over a C.B. radio.  I note that the
Secretary did not cite, nor does the record contain, any actions
or conduct on the part of any of Reading's agents that might
constitute an act of provocation.  Further, the only statement by
Reading's agents that might be seen as provocation, was
Wapinski's response to Bernardyn's protected activity of slowing
down due to poor road conditions wherein he stated "get this
thing moving and get going" or "pick it up when and where you
can."  I find that the words in these statements are devoid of
any threat or expression of any animus toward Bernardyn or his
protected activity.  I find that Bernardyn's unprotected
activities, in using profanity for 8 to 10 minutes directed not
against Wapinski but over a C.B. radio, and using words
constituting a threat over a C.B. radio, to have been out of
proportion to the one-time, brief statements Wapinski made to
him.  I thus find that, within the circumstances of this case
viewed in their totality, that it has not been established that
any conduct, statements, or actions of Reading's agents
constituted a provocation which justified or excused Bernardyn's
using profanity, and voicing a threat.  [1]

V.   Conclusion

     The critical issue to be resolved is the nexus between
Bernardyn's protected activity and the adverse action taken
against him by Respondent.  The disciplinary policy of 1987 in
effect when Bernardyn was terminated did not specifically grant
Respondent the right to terminate an employee based upon the
latter's use of profanity, and the issuance by the latter of a
threat against a supervisor.  However, the Secretary cannot
prevail if the operator establishes that it would have terminated
Bernardyn anyway for the unprotected activity alone.  (See,
Bradley v. Bela Coal Co. 4 FMSHRC 992, 993 (June 1992).[2]  In
this connection, I reiterate the finding that I made in the
original decision, 21 FMSHRC supra at 823, accepting Derrick's
testimony that was not impeached or contracted, that Bernardyn
cursed "unstop" over the C.B. radio, and used threatening
language directed against Wapinski , his supervisor.
Accordingly, I find credible Derrick's testimony that his
decision to immediately terminate Bernardino was made when
Bernardino cursed and threatened his supervisor over the C.B..  I
thus find that Reading has established that it's decision to
immediately terminate Bernardino would have been taken in either
event based upon Bernardino's unprotected activities, i.e.,
excessive profanity, and threatening profane language directed
over the C.B. radio against his supervisor.

     Therefore, for all the above reasons, I find that although
the Secretary has established a prima facie case,, Reading has
prevailed in establishing it's affirmative defense.  I thus
conclude that the Secretary has not prevailed in establishing
that Bernardyn was discharged in violation of Section 105(c) of
the Act.  Therefore the Complaint shall be dismissed.


**FOOTNOTES**

     [1] The  cases  cited  and  relied  by the Secretary are in
inapposite to the facts presented in the case at bar.  In NLRB v.
M  &  B Headwear Co., 349 F 2nd 170 (4th Cir. 1965),  the  Fourth
Circuit  upheld  the  reinstatement  of  a  worker  who,  after a
discriminatory layoff, threatened a supervisor because the unjust
and  discriminatory  treatment  of  [the worker] gave rise to the
antagonistic environment in which these remarks were made.  349 F
2nd supra, at 174.  In M & B Headwear,  supra, in contrast to the
case at bar, the employer had subjected the  discharged  employee
to  surveillance  when  the  former  was  engaging  in  protected
activities.   Also,  she  was transferred to a different job  six
days after she had engaged  in  protected activities, and she was
told by a supervisor that it was  unfair  of  her  to  attempt to
organize  the plant without telling the company's officers.   The
Court found  that  there  was  sufficient evidence to support the
Board's conclusion that her layoff  was  discriminatory.  In this
context  the  Court  found  that  the  unjust and  discriminatory
treatment of the worker gave rise to the antagonistic environment
in which the worker's subsequent threats  and rudeness were made.
In  contrast,  in the case at bar, there is no  evidence  of  any
unjust and discriminatory  treatment  of  Bernardyn  to lead to a
conclusion that any wrongful provocation existed.

     Similarly, in NLRB v. Steinerfilm, Inc. 669 F 2nd  845  (1st
Cir.  1982),  the  Court,  in upholding the decision of the Board
that  had held that a discharge  of  an  employee  was  unlawful,
noted that  the  company  had engaged in a series of unfair labor
practices, including threats  to  the discharged employee.  Also,
the company had issued a warning, which  the Court found that the
Board was fully justified in concluding had  been  unlawful.  The
Court  held  that  the Board could reasonably conclude  that  the
discharged employee's abusive language was an excusable action to
the unjustified warning  he had received just minutes before, and
therefor the discharge was improper.  In contrast, in the case at
bar, Bernardyn's use of excessive  profanity  did  not follow any
unlawful warning or other unlawful act on the part of Respondent.

     Lastly, in Trustees of Boston University vs. NLRB  548 F 2nd
391  (1st  Cir. 1977), the First Circuit upheld an Administrative
Law Judge's decision excusing an employee's misconduct because it
was stimulated  by  the  employer's own wrongful conduct.  In the
instant case, in contrast,  it  has  not  been  established  that
Bernardyn's   use  of  profanity  and  threatening  language  was
stimulated by Respondent's  wrongful  conduct.  Specifically, the
plain  meaning  of  the  words used by Wapinski  in  response  to
Bernardyn's driving slowly  due  to  slippery  conditions, do not
contain  any  threat or animus toward Bernardyn relating  to  his
protected activity  under  the  Act,  i.e.,  driving  slow due to
slippery conditions, and hence were not "wrongful".

     Further,  in  Boston  University,  supra  ,  the  discharged
employee's conduct consisted of being "offensive" on a number  of
occasions  in  dealing with supervisors, and brandising a pair of
scissors.  (The  court,  Boston  University, supra at 392, n. 2.,
found  the  decision  of  the  NLRB that  this  episode  was  not
perceived   as   a   serious   threat,  to   be   a   supportable
characterization.)  In contrast, in the case at bar, the employee
misconduct of Bernardyn, was most egregious, as he used profanity
for 8 to 10 minutes over the C.B., and issued a verbal threat.


     [2]:  It thus is not for this forum to determine whether the
termination was consistent with  agreements (policies) negotiated
between the operator and the union.


VI.  Order

     It is ORDERED that the Complaint filed in this case be
dismissed, and that this case shall be dismissed.


                         Avram Weisberger
                         Administrative Law Judge


Distribution: (Certified Mail)

Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 630 East, Curtis Center, 170 S. Independence Mall
West, Philadelphia, PA 19106-3306

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.O. Box
450, Pottsville, PA, 17091

/sct