.
ALL AMERICAN ASPHALT
May 5, 1997
WEST 93-336-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (303) 844-5268
May 5, 1997
SECRETARY OF LABOR : DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of :
JAMES HYLES, : Docket Nos. WEST 93-336-DM
: WEST 93-436-DM
DOUGLAS MEARS, : WEST 93-337-DM
: WEST 93-437-DM
DERRICK SOTO, : WEST 93-338-DM
: WEST 93-438-DM
GREGORY DENNIS, : WEST 93-339-DM
Complainants : WEST 93-439-DM
: WEST 94-21-DM
v. :
: All American Aggregates
ALL AMERICAN ASPHALT, : Mine ID 04-03646
Respondent :
DECISION
Before: Judge Cetti
These consolidated cases are before me upon remand by the
Commission for further consideration, more specific credibility
findings, and analysis consistent with its December 1996
decision, 18 FMSHRC 2096, 2103 (December 1996).
FACTUAL AND PROCEDURAL BACKGROUND
The basic factual framework and procedural background of
these cases is set forth in my decision, 16 FMSHRC 2232 (November
1994) and is also more concisely and ably set forth in the
Commission's remand decision 18 FMSHRC 2096 as follows:
AAA is a general contractor in Corona,
California that operates an asphalt plant, a
quarry, and a plant that produces rock-based
aggregates for its own use and sale to other
con- tractors. Tr. 1136-39. In April 1991,
AAA was in the process of completing an
addition to its rock finishing plant. 16
FMSHRC at 2235. On Thursday, April 18, James
Hyles, a leadman on AAA's third or
"graveyard" shift, learned that AAA equipment
was not in place. Hyles voiced his concern
about safety conditions in the plant to Mike
Ryan, plant supervisor and a vice president
of AAA. Hyles also spoke to Patrick McGuire,
business representative of Local 12 of the
International Union of Operating Engineers
("Operating Engineers"), which represented
AAA's employees. Id. Thereafter, McGuire
visited the plant and saw the plant running
without numerous pieces of equipment in place.
Id.; Tr. 177-78.
During the weekend of startup operations,
Ryan assigned Hyles to work as leadman on a
combined second and third shift. 16 FMSHRC at
2236. When Hyles reported to work on Friday,
April 19, at 7:00 p.m., he saw equipment
lacking guards, ladders, catwalks, decks,
handrails and trip cords. Id. at 2235-36.
Working under Hyles' supervision in the
finish plant area were Greg Dennis, Doug
Mears, and Derrick Soto. Hyles warned them
to be careful, and they complained to Hyles
about conditions in the plant. Later, during
the weekend, Hyles videotaped the plant in
operation and spoke to Dennis, Mears, and
Soto about what he was doing. Id. at 2236.
Other employees on the videotape observed
Hyles' videotaping, including leadman Gary
Richter. Tr. 365-70. On Sunday night, Hyles
was involved in a minor accident when he fell
through a gap in decking. Tr. 367-70; Gov't
Ex. 23. Hyles spoke to Dennis, Mears, and
Soto about taking the videotape to the field
office of the Mine Safety and Health
Administration (MSHA). They all agreed that
the plant's condition posed dangers to
employees and that the tape should be turned
in. 16 FMSHRC at 2236; Tr. 370.
On Monday morning, Hyles went to the MSHA
field office and turned in the videotape.
16 FMSHRC at 2236; Gov't Ex. 54. After
viewing the videotape, MSHA inspectors went
to the AAA plant and saw it in operation.
MSHA issued numerous citations, including 29
unwarrantable failure violations. 16 FMSHRC
at 2236. Later that day, Ryan called Hyles
at home and told him not to report to work
that evening because someone had turned them
in and MSHA had shut the plant down. Id.
About a week later on the first day that
the plant reopened, Hyles had lunch with Ryan
and Gary White, leadman on the maintenance
shift. Ryan asked if either man knew who
turned him in. Ryan added that he wanted to
find out who it was so he could make life so
miserable for them that they would be happy
to go to work someplace else. Id.; Tr. 375-
76. Also after the plant reopened, AAA
President William Sisemore stated that he
wanted to find out who turned in the company
and make it worth their while to go
elsewhere. 16 FMSHRC at 2237, Tr. 391-504.
In June 1991, during a subsequent MSHA
investigation, Hyles, Dennis, Mears, and
Soto, in addition to other employees, were
interviewed in an investigation into Ryan's
conduct under 30 U.S.C. � 820(c). Id. at
2237, Gov't Exs. 2, 3, 4, and 5.
In October 1991, Ryan, without
explanation, demoted Hyles from his position
as leadman. When asked why he was demoting
Hyles, Ryan responded that they no longer saw
eye-to-eye. 16 FMSHRC at 2237. [1] On July
7, 1992, due to an equipment move, AAA laid
off 16 of its 27 employees, includ-ing Hyles,
Dennis, Mears, and Soto. Over the succeeding
weeks, all employees but the four
complainants were called back to work, and
some employees were working overtime. When
Hyles and Soto went to the plant and saw less
senior employees working, the four filed
grievances under the collective bargaining
agreement between AAA and the Operating Engi-
neers. The grievants contended that the
contract required AAA to conduct a "bumping"
meeting prior to layoffs where employ- ees
could bid on jobs held by less senior
employees and bump those employees out of
jobs for which the more senior employee was
qualified to perform. Id. at 2238-39. The
grievances went to arbitration, and the
arbitrator found that AAA had violated the
contract by laying off employees without
conducting a bumping meeting; however, he
concluded that only Hyles was entitled to
relief to bump less senior employees, based
on his qualifications. 16 FMSHRC at 2238-39,
Gov't Ex. 51, at 11-14.
In September 1992, Hyles, Dennis, Mears,
and Soto filed discrimination complaints with
MSHA. Following the insti- tution of
temporary reinstatement proceedings, AAA
reinstated the four complainants on February
11, 1993. 16 FMSHRC at 2239-40. Upon their
reinstatement, they were assigned to
production work on the day shift. Id. at
2240.
In early March 1993, AAA reestablished a
third shift as a result of decreased
production due to wetness of material that
was being processed through the plant. AAA
temporarily assigned four of its most senior
plant repairmen to perform production work,
while paying them at their higher rate of pay
as repairmen. It was unusual for senior
employees to work the night shift, because
the day shift was seen as more desirable and
the most senior employees generally bid on
it. Id. Three weeks later, on March 23, AAA
discontinued the third shift and announced a
layoff. Rather than reassigning the four
repairmen to their regular positions, AAA
required the repairmen to participate in a
bumping meeting. Rather than bumping into
repairmen positions, they bumped into the
production jobs held by Hyles, Dennis, Mears,
and Soto. As a result the complain-ants were
the only four employees laid off. AAA
discontinued the third shift and announced a
layoff. Rather than reassigning the four
repairmen to their regular positions, AAA
required the repairmen to participate in a
bumping meeting. Rather than bumping into
repairmen positions, they bumped into the
pro-duction jobs held by Hyles, Dennis,
Mears, and Soto. As a result, the
complainants were the only four employees
laid off. AAA subsequently hired new
employees to fill the vacant repair- men
positions. Id. at 2240-41; Tr. 457, 481,
1693.
On March 24, the four complainants were
called into the layoff meeting and told that
they had been bumped by more senior employees
and that they were to bid on jobs held by
less senior employees. They were reluctant
to exercise their bump-ing rights at the
meeting for fear that Ryan would refuse to
allow them to bump into other jobs because
they were not quali- fied. Hyles and Soto
requested that they be given time to
consult with counsel from the Solicitor's
office because of the pendency of their
discrimination complaints. 16 FMSHRC at
2241. Shortly after the meeting, Operating
Engineers Business Agent McGuire called Ryan
to let him know that Hyles had decided to
bump into the plant operator position. Ryan
refused the request, stating that it was
untimely. AAA refused to accept any of the
complainants' subsequent written requests to
bump for the same reason. Id.
Following the second layoff, Hy1es,
Dennis, Mears, and Soto filed a second
discrimination complaint, alleging that the
March 1993 layoff was in retaliation for
their MSHA related safety activity. AAA
reinstated the complainants on April 26,
1993. After their reinstatement, the
complainants were frequently given reduced
working hours. In April 1993, AAA began hir-
ing ten new employees and increased its
output of finished material. In August 1993,
AAA posted a seniority list indi- cating that
Dennis, Mears and Soto had seniority dates of
January 1993. When Mears asked why the list
did not reflect his original seniority
date, Ryan responded that he had no
seniority. Id. at 2242.
The Secretary issued four complaints for
each of the two layoffs, and an eight day
hearing was held. At the close of the
hearing, the judge issued a bench decision
granting the complainants temporary
reinstatement, and a written decision
followed. 16 FMSHRC 31 (January 1994)(ALJ).
Thereafter, the judge issued his decision on
the merits of the complaints. Initially, the
judge dismissed several procedural defenses
raised by AAA, including that the complaints
were time barred under the Mine Act and that
the discrimination complaints were preempted
by the National Labor Relations Act, 29
U.S.C.
� 141 et seq. (1994). 16 FMSHRC at 2233-35.
On the merits, the judge found that AAA had
violated section 105(c) of the Mine Act by
laying off the complainants on two occasions
in retaliation for their MSHA related safety
activity. Id. at 2247-49.
APPLICABLE LAW
The principles governing analysis of discrimination cases
under the Mine Act are well settled. In order to establish a
prima facie case of discrimination under Section 105(c) of the
Act, a complaining miner bears the burden of production and proof
in establishing that (1) he engaged in protected activity and (2)
the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Pasula v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 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. If an
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, 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).
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if
the facts support a reasonable inference of discriminatory
intent. Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510-11 (November 1981), rev'd on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1381, 1398-99 (June
1984). As the Eighth Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir. 1965):
It would indeed be the unusual case in
which the link between the discharge and
the (protected) activity could be supplied
exclusively by direct evidence. Intent is
subjective and in many cases the
discrimination can be proven only by the use
of circumstantial evidence. Furthermore, in
analyzing the evidence, circumstantial or
direct, the [NLRB] is free to draw any
reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner or miners includes
hostility towards the miner because of his protected activity and
disparate treatment of the complaining miner by the operator.
Chacon, supra at 2510.
Docket Nos. WEST 93-336-DM, WEST 93-337-DM, WEST 93-338-DM,
WEST 93-339-DM
With respect to these four dockets (first set of dockets)
for reasons set forth below, I find and conclude that each of the
four Complainants in April 1991 engaged in protected activity,
that Ryan, the plant supervisor and vice-president, as well as
the president, Sisemore, blatantly expressed hostility to the
protected activity and a desire to find out who "turned them in"
so as to make it so miserable for them they would be glad to seek
employment elsewhere. Over a period of time, Respondent was
able to determine who the employees were that engaged in the
April 1991 protected activity and took adverse dis-
criminatory action against them in retaliation for their having
engaged in the protected activity. The adverse action taken
included not recalling Complainants back to work for a prolonged
period of time after the July 1992 layoff while less senior
employees were working and at other times between July 1992
and December 16, 1993, all of which are covered by the back-pay
stipulation set forth in the stipulation marked as Exhibit A. [2]
This adverse action resulted in a loss of wages (back-pay) for
each of the Complainants in the dollar amounts set forth in my
decision dated November 2, 1994, 16 FMSHRC 2232, which in turn,
is based on the record and the agreed dollar amounts set forth in
the stipulation signed and filed by all parties. This
stipulation was and is accepted by the undersigned Judge. On
the same basis, after consideration of the relevant statutory
criteria, I find the appropriate penalty to be assessed for the
violations of Section 105(c) found in this first set of four
dockets is $14,000.00.
Docket Nos. WEST 93-436-DM, WEST 93-437-DM, WEST 93-438-DM,
WEST 439-DM
This second set of dockets, listed above, arose out of the
second set of discrimination complaints that the four
complainants filed with MSHA in September 1992. With respect to
these dockets, Docket Nos. WEST 93-436-DM, WEST 93-437-DM, WEST
93-438-DM and WEST 93-439-DM, I find that each of the
Complainants did indeed engage in protected activity which
included taking an active part in the Section 110(c)
investigation of the plant supervisor, Ryan. It is undisputed
that the Respondent was fully aware of the Claimants' protected
activity. I find, however, that Respondent took no adverse
action against the Complainants that was motivated by the
protected activity involved in their participation in the
110(c) investigation or in their filing the second set of
discrimination complaints. I find that all the adverse action
taken against the Complainants, except for the demotion of Hyles
from his leadman position to a journeyman position, was motivated
by Respondent's animosity towards Complainants for their April
1991 protected activity, and not motivated by the protected
activity involved in the 110(c) investigation. There maybe
suspicion but there is no persuasive evidence of a causal
nexus between any adverse action and the Complain- ant's
protected activity involved in the 110(c) investigation of Ryan.
It is on this basis that I find and concluded the Secretary
has not proved there was a violation of Section 105(c) with
respect to this second set of dockets. I, therefore, dismiss
these dockets and vacate the corresponding proposed $14,000.00
penalty assessments for the alleged violations in the second set
of dockets. Likewise, I dismiss Docket No. WEST 94- 21-DM in
view of the failure to prosecute and stipulation number four of
Ex. A which clearly states "there shall be no penalty in the
case bearing Docket No. WEST 94-21-DM."
CREDIBILITY FINDINGS
Having heard and observed the demeanor of the witnesses as
they testified at the hearings, I make the following credibility
findings:
I credit the testimony of William S. Smillie, particularly
his testimony that he heard Respondent's President Sisemore and
its Vice-President and Plant Manager Mr. Ryan having a
conversation that clearly showed they wanted to find out who
filed the hazard complaint with MSHA. He heard them say in a
loud voice, as though intending him to hear, that they would like
to know who filed the hazard complaint so they could make it
worthwhile for them to leave. This was a blatant threat
against miners who engaged in statutorily protected activity and
clearly showed their intent to retaliate against the miners who
engaged in the protected activity.
I credit the testimony of the complainant James Hyles, that
Ryan asked him and leadman Gary White if they had any idea who
"turned him in" and that Ryan told them he wanted to find out who
it was and that he would make it so miserable for them, they
would be happy to go to work someplace else. I credit Hyles'
testimony that while he was in the office of President Sisemore,
he heard Sisemore say he would like to "find out who was causing
him all the problems and that he would make it worth their while
to seek employment elsewhere."
I credit the testimony of the Complainants, Hyles, Mears,
Soto and Dennis, including their testimony as to their training,
experience and their job qualifications. In view of Ryan's
blatant hostility to the Claimants' protective activity and to
his express desire to get rid of those who "turned him in". I
do not credit Ryan's testimony as to the job qualifica-
tions of the applicants during the relevant time period through
the date of the final hearing in this matter December 16, 1993.
I do not credit Ryan's testimony that neither he nor Mr.
Sisemore said anything to the effect that they wanted to find out
who had made the complaints to MSHA so that they (Management)
could make it worth their (Complainants) while to leave. I do
not credit Ryan's testimony that he did not find out who "turned
in" Respondent to MSHA in April 1991 until MSHA sent him the
discrimination complaints filed by the four Complainants.
I credit the testimony of Cathy Ann Matchett, the Special
Investigator with Mine Safety and Health Administration who
pursuant to her MSHA assignment investigated the complaints of
discrimination filed by the Complainants with MSHA. Although
much of her testimony consisted of hearsay, I credit her with
accurately summarizing the information given to her in the
course of her investigation. (See Exhibits G-18, G-19, G-31, G-
32). I credit the testimony of Patrick McGuire and Martin
Collins, the business representatives for the International Union
of Operating Engineers, Local 12. Martin Collins specializes in
rock, sand and gravel agreements for Local 12. (Tr. 1084).
Collins was called as a witness, respectively, by both Respondent
and Complainants.
**FOOTNOTES**
[1]: The Commission in footnote 3. Id. at 2402 ruled the
judge's determination that Hyles demotion did not violate 105(c)
of the Mine Act is final since the Secretary did not preserve the
demotion issue for review through a timely filed petition, nor
did the Commission order sua sponte review of the issue.
[2]: The stipulation signed by all parties is attached to
this Decision as Exhibit A.
OPERATOR'S HOSTILITY TO THE PROTECTED ACTIVITY
AND THREATS OF RETALIATION
There is strong convincing evidence of the operator's
animosity and hostility towards the protected activity and their
intention to retaliate against those employees who engaged in the
protected activity when they determined their identity.
Management's conduct was exacerbated by their making loud vocal
threats as to how they were going to retaliate against said
employee(s) once they determined who they were. Such blatant
expressions of hostility has a chilling effect on all employees.
It is an indirect threat of adverse action in retaliation against
any employee who dares to engage in protected activity. This
blatant intimidating conduct is the antithesis of the very intent
and purpose of Section 105(c) of the Mine Act. Such conduct on
the part of an operator flies in the face of the purpose and the
intent of the Mine Act. The effect and the probable intent of
such expression of hostility is to intimidate employees from
engaging in protected activity. Such expression of animosity
towards the protected activity and the express desire and
attempts to find out who "turned them in" with threats of
retaliation against those employees once their identity is known
followed by adverse action against the Complainants, supports
a reasonable inference that Respondent did, in fact, determine
the identity of the employees who participated in the protected
activity that caused Respondent "so much trouble." Knowledge of
the Respondent is reasonably inferred from the established facts
and circumstances.
THE ARBITRATOR'S DECISION
A miner's rights under a union contract are different and
subservient to the statutory protected rights of a miner under
Section 105(c) of the Mine Act. The crucial issues and
procedures are different.
The record reveals practically nothing about the arbitrator
nor does it demonstrate the adequacy of the record on which
arbitrator's conclusions were based. I have never seen the
record before the arbitrator and the decision does not appear to
name all the witnesses who testified in the arbitration
proceeding. Assuming the same witnesses testified in the arbi-
tration proceeding as in these discrimination cases under Section
105(c) of the Mine Act, it is quite clear I have made different
credibility findings than the arbitrator. Based upon the record
before me I do not give any weight to the arbitrator's decision.
In view of Management's blatant hostility to the protected activity
of the Claimants and Management's obvious desire to get rid of
Claimants, I place very little credence in Ryan's testimony as to
the qualifications of the claimants for available jobs,
particularly as compared to qualifications of less senior
employees who were working or returned to work before the
Complainants after the July 1992 layoff. I based my opinion
that All American Asphalt violated its collective bargaining
agreement in implementing the layoff in July 1992 without
conducting a pre-layoff bumping meeting, not on the decision of
the arbitrator, but on the provisions of the union contract, the
testimony of business agents for Local 12 of the Union of
Operating Engineers, and the admission of Ryan at page 2 of Ex.
G-7.
PROTECTED ACTIVITY
I find that Ryan, Respondent's vice-president and plant
manager, started running the plant in April 1991 with full
knowledge that mandatory basic safety equipment such as trip
cords, handrails, ladders, catwalks, decks and guards, were not
in place. I credit the testimony of James Hyles, the leadman of
the combined crew, that he complained to Ryan, to no avail,
about running the plant without the basic safety equipment in
place. I also credit the testimony of the Complainants that they
complained about the unsafe conditions to their leadman Hyles and
to leadman Gerald Richter. Hyles' protected activity, in
addition to his safety complaint to Ryan, included the making of
a video tape of the plant running in its unsafe condition and
his turning the video tape over to MSHA after his discussion with
the other three Complainants as to the danger involved to
employees and as to whether he should take the video tape to
MSHA.
The protected activity of Mears, Soto and Dennis consisted
of their safety complaints to leadman Hyles and Richter and
their discussion with Hyles as to the danger to employees
involved in running the plant in its unsafe condition and their
support and agreement that the Hyles video tape showing the many
violations of mandatory safety standards should be turned over to
MSHA.
In the vacated decision, I apparently was willing to go
along with Respondent's contention that they had no knowledge of
Hyles' protected activity at the time Respondent demoted Hyles in
October 1991 from his leadman position to a journeyman. I did
this only because there was no direct evidence on this point and,
most importantly, because it made no difference as to the
legality of the demotion in view of my finding and conclusion
that Respondent properly demoted Hyles for his admitted on the
job misconduct alone, irrespective of Hyles' protected
activity. While the Secretary presented some evidence that the
plant had a lax policy for inadvertent falling asleep on the job,
there was no evidence that Hyles' degree of misconduct was
tolerated in other employees. Hyles' unprotected conduct was
clearly unsuitable for an employee in a leadman position and
Respondent demoted him for his unprotected conduct alone. I
find no disparate treatment in demoting Hyles from a leadman
position to a journeyman position.
Although there is no direct evidence as to the exact time
Respondent determined the identity of those who "turned them in",
based on the reasonable inference to be drawn from the
established facts, I find that it was sometime before the July
1992 layoff and recall. First, it is established that Hyles
was observed making the video of the plant by many of the
employees who worked with Hyles on the weekend just before the
Monday MSHA shutdown of the plant. Those who observed Hyles
making the video tape of the plant's many hazardous safety
violations included leadman Richter. In this connection it is
worthy of note, for example that Smillie, a very credible
witness, testified he assumed Hyles was the one who turned the
company in because Hyles was the one who video taped the plant in
its unsafe condition. The other three Complainants worked
under Hyles and along with Hyles were exposed to the hazardous
work conditions on the weekend before the Monday morning MSHA
shutdown of the plant. When the four Complainants were not
called back to work following the July 1992 layoff while less
senior employees were working, it is reasonable, in view of the
established facts, to infer that Respondents had determined that
Complainants were the ones that engaged in the protected activity
that caused them so much trouble and for that reason
retaliated against them by not calling them back to work.
In addition, it is established that the Plant Manager, Vice-
President Ryan and President Sisemore expressed great hostility
to the protected activity and a strong desire to know who turned
the company in and caused them so much trouble. They threatened
to make life so miserable for those who engaged in the
protected activity so they would be only too glad to seek
employment elsewhere. These facts, plus the fact that the
Claimants were clearly subject to disparate treatment by the
Respondent not calling them back to work after the July 1992
layoff, while less senior employees were working lends support to
a reasonable inference that Respondent had knowledge of the
identity of the employees who participated in the protected
activity that led to the MSHA shutdown of the plant, the issuance
of 29 unwarrantable citations, and the 110(c) investigation of
the plant supervisor. It is reasonable to infer from the
evidence presented that sometime before the July 1992 layoff and
recall, Management determined the identity of the employees who
participated in the protected activity that Respondent so deeply
resented.
SENIORITY
The Union contract in effect at the relevant time (July 1992
- March 1993) states in Article XIII Section 3 the following:
Section 3: Seniority Termination. Seniority
shall be terminated by ...(3) if the
employee performs no work for the Employer
within the bargaining unit for a period of
six months ....
In view of the miners' statutorily protected rights, I find
this provision has no effect on the Claimants' seniority at any
time relevant to this decision. Any failure of Complain-
ants to perform work for Respondent for any six months or longer
period during the relevant time period up through December 16,
1993, was due to Respondent's illegal discrimination against the
Claimants. As stated before, the Union agreement is subservient
to the miners statutorily protected rights under the Mine Act.
The Respondent's seniority list for the Claimants and other
operating engineers under the Local 12 Union contract is as set
forth in Government Exhibits 13, 14, and 15. I find Claimants
seniority date at all time relevant to this decision, is their
date of hire as follows:
Name Date Hired
Hyles, James 07-09-85
Dennis, Gregory 08-21-86
Mears, Douglas 04-09-87
Soto, Derrick 07-05-88
These dates of hire establish the Claimants seniority
through all period of time relevant to this decision i.e.
through December 16, 1993, the date of the final hearing in
these cases.
FURTHER FINDINGS
1. Respondent refused to recall the Complainants back to
work after the July 1992 layoff in retaliation for Complainants
having engaged in protected activity which resulted in MSHA
issuing many citations and shutting the plant down.
2. Respondent's claim that Claimants were not recalled
shortly after the July 1992 layoff because Complainants were
not qualified for available work is pretextual.
3. Respondent manipulated the shift and job assignments in
March of 1993 for the specific planned purpose of terminating the
Claimants employment in retaliation of their protected activity
that resulted in the shutdown of the plant, the 29 unwarrantable
citations and the 110(c) investigation of Ryan, the plant manager
and vice-president of the company.
BACK-PAY AND PENALTY
In the decision of November 2, 1994 (16 FMSHRC 2232) I
directed counsel for the parties to confer with each other
with respect to the remedies due each of the Claimants and
encouraged the parties to reach a mutually agreeable
resolution or settlement of these matters.
When the parties finally informed me they could not reach an
agreement as to the specific dollar amount, I set the matter
for hearing on May 8 - 10, 1995, in Riverside California.
Just days prior to the scheduled May 1995 hearing, the
parties after conference calls on May 5th and May 8, 1995,
notified the Judge that they had reached an agreement on the
dollar amounts due. They requested cancellation of the May
hearing on the grounds that it would no longer be
necessary or productive, in any way, in view of a
stipulation reached by the parties. The scheduled hearing
was canceled and on May 22, 1995, the parties filed the
stipulation, attached hereto as Ex. A.
In the stipulation the parties, assuming liability, agree to
certain dollar amounts of back-pay due each Claimant from
April 1991 up through the date of the final hearing in these
cases, December 16, 1993. The parties stipulate that the
interest began to accrue on March 15, 1993, on the entire back-pay
award, and that Respondent shall make all legally required payroll
deductions and withholdings.
Based on the record and the stipulation attached as Exhibit
A, I enter the following:
ORDER
Respondent is ordered to pay the Complainants' back wages
and interest for all periods through the date of the final
hearing in these cases, December 16, 1993, the following
amounts:
Name Amounts
James Hyles $20,837.24 plus interest [3]
Derrick Soto $34,347.10 plus interest
Douglas Mears $38,656.34 plus interest
Gregory Dennis $36,159.32 plus interest
It is further ordered the RESPONDENTS PAY a civil penalty of
$14,000.00 to the Secretary of Labor for Respondent's violations
of Section 105(c) of the Mine Act as charged in Docket Nos. WEST
93-336-DM, WEST 93-337-DM, WEST 93-338-DM and WEST 93-339-DM. All
amounts payable by Respondent pursuant to this order shall be paid
within 40 days of the date of this decision.
It is further ORDERED that Docket Nos. WEST 93-436-DM, WEST
93-437-DM, WEST 93-438-DM, WEST 93-439-DM and WEST 94-21-DM be
DISMISSED and their corresponding proposed penalties VACATED.
August F. Cetti
Administrative Law Judge
**FOOTNOTES**
[3]: Interest shall be computed in accordance with the
Commission's decision in Secretary/Bailey v. Arkansas-Carbona, 5
FMSHRC 2042 (December 1983), at the adjusted prime rate announced
semi-annually by the Internal Revenue Service for the
underpayment and overpayment to taxes. Interest shall be
computed from March 15, 1993, until the date of payment of back-
pay awarded.
Distribution:
John C. Nangle, Esq., J. Mark Ogden, Esq., Office of the
Solicitor, U.S. Department of Labor, 3247 Federal Building,
300 North Los Angeles Street, Los Angeles, CA 90012
(Certified Mail)
Yoora Kim, Esq., Office of the Solicitor, U.S.Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Lawrence Gartner, Esq., GARTNER & YOUNG, P.C., 1925 Century
Park East #2050, Los Angeles, CA 90067-2709
(Certified Mail)
William Rehwald, Esq., REHWALD, RAMESON, LEWIS & GLASNER, 5855
Topanga Canyon Blvd., Suite 400, Woodland Hills, CA 91367-4600
(Certified Mail)
/sh
JOHN C NANGLE ESQ
J MARK OGDEN ESQ
3247 FEDERAL BUILDING
300 N LOS ANGELES ST
LOS ANGELES CA 90012
YOORA KIM ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
4015 WILSON BLVD
ARLINGTON VA 22203
LAWRENCE GARTNER ESQ
GARTNER & YOUNG PC
1925 CENTURY PARK EAST
#2050
LOS ANGELES CA 90067-2709
WILLIAM REHWALD ESQ
REHWALD RAMESON LEWIS &
GLASNER
5855 TOPANGA CANYON
BLVD #400
WOODLAND HILLS CA
91367-46001