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[DOCID: f:w-95-308.wais]
LION COAL COMPANY
September 21, 1995
WEST 95-308-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
September 21, 1995
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), :
on behalf of : Docket No. WEST 95-308-D
MARTY P. BODEN, :
Complainant :
: Swanson Mine
v. : I.D. 48-00082
:
LION COAL COMPANY, :
COUGAR COAL COMPANY, successor :
to LION COAL CO., :
Respondent :
DECISION
Appearances: Kristi L. Floyd, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado, for Complainant;
Brian W. Steffensen, Salt Lake City, Utah,
for Respondent.
Before: Judge Cetti
This proceeding is before me upon request for
hearing filed by the operators of the Swanson Mine, I.D.
No. 48-00082, under section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.,
the "Act", and under Commission Rule 45(b),
29 C.F.R. � 2700.45(b), to contest the Secretary of
Labor's Application for Temporary Reinstatement on behalf
of miner Marty P. Boden.
Indisputed that Marty P. Boden was employed as a belt
foreman at the Swanson Mine prior to his discharge on
November 9, 1994. Under date of November 14, 1994, Mr.
Boden filed with MSHA a complaint of discrimination which
reads in part as follows:
I continued to complain to the Company Officers,
the Board of Directors and to Matt Breneman about the
violations in the entire beltline and about not
having enough employees to correct the violations that
I could. I also complained about the return entries
after walking them to follow the secondary escapeway
out to the surface. I complained about the dusty
roadways in the main intakes. I complained about the
build up of float dust in the mine and the lack of
rock dust in the mine. However, this complaining
seemed to fall on deaf ears.
Then on Monday, November 7, 1994, I spoke with
Anita Goodman for advice on the violations at the mine
and the unwillingness of the four individuals who run
every aspect of our company and the mine to correct
such violations. Ms. Goodman advised me to contact
the MSHA Headquarters in Arlington, Virginia. I
immediately contacted the MSHA Headquarters and
registered my complaints. On November 9, 1994, Mr.
Steve Teetman, the MSHA inspector came to the mine
with what was to begin as a Triple A inspection and
was changed to a BAD inspection upon receiving my
"Miner's Complaint". At approximately 2:30 p.m. this
same afternoon, Brian Steffensen, James Lipscomb, Hal
Rosen and Richard Ander- son ordered the mine manager,
Mr. Matt Breneman to fire me for "malfeasance". Due
to the fact that the list of complaints is the same
things I have continued to complain about, these four
men apparently knew that I was the one who called MSHA
and they fired me for exercising my Miner's Rights.
II
Temporary reinstatement proceedings are governed by
Commission Rule 45(c), 29 C.F.R. � 2700.45(c) which
provides as follows:
The scope of a hearing on an application for
temporary reinstatement is limited to a determination
by the Judge as to whether the miner's complaint is
frivolously brought. The burden of proof shall be
upon the Secretary to establish that the complaint is
not frivolously brought. In support of his
application for temporary reinstatement, the
Secretary may limit his presentation to the testimony
of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by
the Secretary and may present testimony and
documentary evidence in support of its position that
the complaint is frivolously brought.
III
The Secretary filed a timely Application for
Temporary Reinstatement stating that as a result of a
formal investigation the Secretary determined that Mr.
Boden's complaint was not frivolously brought. The
Secretary specifically requests an Order requiring the
operator of the Swanson Mine, Lion Coal Company and, by
later amendment its successor Cougar Coal Company, to
temporarily reinstate the miner, Marty P. Boden, to the
position of belt foreman which he held immediately prior
to his discharge on November 9, 1994, or to a similar
position at the same rate of pay and with the same or
equivalent duties.
The Secretary's Application for Temporary
Reinstatement alleges that Respondent terminated the
employment of the belt foreman Marty Boden "contrary to
section 105(c) of the Act for exercising his statutory
rights under the Act." The Secretary specifically states
Mr. Boden contacted MSHA offices in Delta, Colorado, and
Arlington, Virginia, on November 7, 1994, to complain about
unsafe conditions at Lion Coal Company's Swanson Mine. As
a result of Boden's safety complaints to MSHA, a Code-a-
Phone spot inspection was initiated by MSHA on November 9,
1994. Mr. Boden, was terminated later that same day,
November 9, 1994. The Secretary states his employment was
terminated as a result of his safety complaints to MSHA.
The application's accompanying affidavit required by
Commission Rule 45(a) was executed by William G. Denning.
The affidavit, in relevant part, certifies the following:
a. At all relevant times, Respondent Swanson
Mine, Lion Coal Company, engaged in the production of
coal and is therefore an operator within the meaning
of section 3(d) of the Mine Act.
b. At all relevant times, Marty Boden was
employed by Respondent as a belt foreman and is a
miner as defined by section 3(g) of the Mine Act.
c. Swanson Mine, Lion Coal Company, is a mine
as defined by section 3(h) of the Mine Act, the
products of which affect interstate commerce.
d. The alleged act of discrimination occurred
on November 9, 1994, when Marty Boden was discharged
by Matt Breneman, Mine Manager.
e. Marty Boden engaged in protected activity
when on November 7, 1994, Mr. Boden contacted the
MSHA offices in Delta, Colorado, and Arlington,
Virginia, to report unsafe working conditions at the
Swanson Mine. Specifically, he complained about the
belt rollers, the rock dusting and the returns.
These phone calls caused MSHA to perform a Code-a-
Phone inspection at the Swanson Mine on November 9,
1994.
f. During the course of Ms. Lorenzo's
investigation, she conducted interviews with a number
of employees, both hourly and managerial, and also
conducted a review of documents provided by the mine.
As a result of Ms. Lorenzo's investigation, I
determined that Mr. Boden was discharged in
retaliation because of his report to MSHA about
unsafe conditions at the Swanson mine which caused a
Code-a-Phone inspection by MSHA. Most of the miners
I interviewed agree with Mr. Boden that the beltline
was not safe.
g. Mr. Boden has always met an acceptable level
of performance at the mine, and was characterized as
a good worker by his supervisors. The mine contends
that Mr. Boden was already designated for termination
before the MSHA Code-a-Phone inspection because of
maleficence (sic) and theft. Ms.Lorenzo's interviews
with other employees of the mine do not give any
credence to these charges.
IV
At the hearing the Secretary presented the testimony
of the mine manager Matt Breneman, the belt foreman and
Complainant Marty Boden, the MSHA special investigator
Leslie Y. Lorenzo, the former company safety manager Anna
Marie Boden, Ron Kalvis, a shop foreman, Greg Brown, who
worked under Boden on the belts, Dennis Keller, who took
over Boden's job as belt foreman when Boden was terminated,
Ron Hoffman and Tara Whittaker.
Matt Breneman, the mine manager at Swanson Mine,
testified substantially as follows: The Code-a-Phone
message had safety complaints, the same complaints that
Boden had continuously made to management, and he could
tell from the complaints in the Code-a-Phone message that
Boden must have been the one who made the complaints to
MSHA. After the Code-a-Phone message was received at the
mine, Matt Breneman called management in Salt Lake City
and talked to the Board of Directors. They put his call
on a speaker phone, and R. Anderson (Dick), J. Lipscomb
and Brian Steffensen participated in the call. Breneman
discussed with them the Code-a-Phone message and the
complaints set forth in the Code-a-Phone message.
Breneman testified that in the course of that conversation
Brian Steffensen told Breneman to fire Marty Boden. The
mine manager replied he had no reason to fire Boden.
Brian Steffensen then told him to fire Boden for
"malfeasance". Breneman hung up the phone, looked at
Boden and said "they want me to fire you" for
"malfeasance." He briefly discussed the situation with
Boden and it was determined that in order not to
jeopardize his own job, Breneman should do what he was
told to do. He fired Boden. Boden then left the mine
immediately .
The Respondent primarily presented the testimony of
management witnesses who testified that they were not
satisfied with Mr. Boden's work performance as belt
foreman and were concerned about his use of a company gas
card and his charging mileage. Their testimony indicated
that Lion Coal management was in the process of
investigating Mr. Boden's work performance and were
seriously considering terminating his employment before
they were even aware of Marty Boden's Code-a-Phone message
to MSHA.
On review of the entire record I find the testimony
of the witnesses called by the Secretary, taken together,
support the allegations in the Secretary's Application for
Temporary Reinstatement and the assertions in its
accompanying affidavit. Their testimony and the
Secretary's documentary evidence clearly establish that
the miner's complaint was not frivolously brought.
V
COUGAR COAL COMPANY, SUCCESSOR TO LION COAL COMPANY
On June 28, 1995, over the objection of counsel Brian
Steffensen, I granted the Secretary's motion to amend all
pleadings to add as a Respondent Cougar Coal Company as
successor to Lion Coal Company. The evidence established
that on November 29, 1994, for $10.00 and other
consideration, Cougar Coal Company assumed the right to
the title and an interest in all assets except for claims
against the Selengos and their affiliates, cash on hand,
current accounts receivable and inventory. (Gov't. Ex.
10-B). Evidence was presented that after the November 29,
1994, transaction, the day-to-day operations at Swanson
Mine continued without a break and the mine continued to
produce coal. The mine and the appurtenances associated
with the mining activities remained the same. The
workforce remained substantially the same. Both Mine
Superintendent Gene Picco and Mine Manager George Herne
have been employed at this mine for several years and
after November 29, 1994, continued their employment. In
addition, the corporate officers and directors for Lion
Coal Company and Cougar Coal Company are substantially the
same. They are as follows:
JAMES LIPSCOMB - Chairman and President of Lion Coal
Company and President of Cougar Coal Company
HAL ROSEN - Treasurer of Lion Coal Company and
Treasurer of Cougar Coal Company
RICHARD ANDERSON - Vice-President of Lion Coal
Company and Vice-President of Cougar Coal Company
BRIAN STEFFENSEN - Secretary of Lion Coal Company
and registered agent for Cougar Coal Company
Mining methods and procedures did not change and the
same jobs were required to be filled. Cougar Coal Company
adopted all of Lion Coal Company's MSHA approved plans and
stated that they anticipate no change in mining practices.
Cougar Coal Company used the same machinery, equipment and
methods of production.
George Herne, mine manager for Cougar Coal Company in
his letter to the MSHA District Manager, under the
letterhead of Cougar Coal Company dated January 13, 1995
states as follows:
RE: The Swanson Mine
I.D. # 48-00082
Dear Mr. Kuzar,
Cougar Coal Company has taken over the
operations of the Swanson Mine, ID #48-00082, from
Lion Coal Company. At this time Cougar Coal
anticipates no change in the mining practices
employed at the Swanson Mine. For this reason Cougar
Coal Company will continue to operate under Lion Coal
Company's approved mining plans, and accepts these
mining plans as their own.
Thank you:
/s/
George Herne
Mine Manager (Gov't. Ex. 10A pg. 4, Tr. 479)
Under the nine-factor successorship guideline
enunciated in Munsey v. Smitty Baker Coal Company Inc.,
2 FMSHRC 3463 (1980), I find that the Cougar Coal Company
is a successor to Lion Coal Company and, as such, along
with Lion Coal Company, is properly subject to the Order
temporarily reinstating Marty Boden.
CONCLUSION
At the conclusion of the hearing in this matter on
August 30, 1995, after evaluating the entire record I
ruled from the bench that the Secretary had sustained his
burden of proof in establishing that the discrimination
complaint was "not frivolously brought". I concluded that
the Secretary made a sufficient showing of the elements
of a complaint under section 105(c) of the Act and I
orally issued the reinstatement order requested by the
Secretary against the operators of the Swanson Mine, Lion
Coal Company and Cougar Coal Company as the successor to
Lion Coal Company.
In this decision I hereby affirm in writing the oral
ruling made from the bench at the conclusion of the
hearing on August 30, 1995.
ORDER
As stated in my ruling from the bench at the
conclusion of the hearing on this matter, the Secretary's
Application for the Order of Temporary Reinstatement of
Marty P. Boden is GRANTED. Respondents Lion Coal Company
and Cougar Coal Company as successor to Lion Coal Company,
are jointly and severally ORDERED to temporarily reinstate
Marty P. Boden to the position of belt foreman which he
held at the time of his discharge, or to a similar
position, at the same rate of pay and with the same or
equivalent duties.
August F. Cetti
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO 80202-5716 (Certified Mail)
Brian W. Steffensen, LION COAL COMPANY, 675 East 2100
South, Suite 350, Salt Lake City, UT 84106 (Certified
Mail)
COUGAR COAL COMPANY, 1554 9th Street, Rock Springs, WY
82901 (Certified Mail)
Chris L. Schmutz, Esq., CHRIS L. SCHMUTZ, P.C., 265 East
100 South #300, Salt Lake City, UT 84111 (Certified Mail)
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