.
TANGLEWOOD ENERGY, INC.; FERN COVE, INC.; RANDY BURKE, AND RANDALL KEY
June 20, 1995
Docket No. WEVA 94-357-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 20, 1995
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-357-D
ON BEHALF OF SAMUEL KNOTTS, :
Complainant : MORG CD 94-3
:
v. : Coalbank Fork No. 12
:
TANGLEWOOD ENERGY, INC.; :
FERN COVE, INC.; :
RANDY BURKE, AND RANDALL KEY, :
Respondents :
DECISION
Appearances: James V. Blair, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Complainant;
Paul O. Clay, Jr., Esq., Fayetteville,
West Virginia, for Respondents.
Before: Judge Maurer
STATEMENT OF THE CASE
This case is before me upon the complaint by the Secretary of
Labor on behalf of Samuel W. Knotts under Section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., the "Act", alleging that Mr. Knotts was discharged by
the respondents on January 28, 1994, in violation of section
105(c)(1) of the Act. The Secretary seeks back wages and
interest for Mr. Knotts as well as civil penalties against the
respondents. Respondents maintain that Knotts was not discharged
in violation of the Act, but rather was discharged because of his
involvement in an allegedly unprotected 2 hour conversation with
an outside mining engineer representing the land owners that
respondents perceived to be negative and inflammatory in nature.
Pursuant to notice, an evidentiary hearing was held at Fairmont,
West Virginia on January 19-20, 1995. Subsequently, both parties
have filed post-hearing proposed findings of fact and conclusions
of law which I have considered along with the entire record and
considering the contentions of the parties, make this decision.
STIPULATIONS
The complainant and respondents have stipulated to the following:
1. The Coalbank Fork No. 12 Mine is a coal mine and is operated
by Fern Cove, Inc.
2. Fern Cove, Inc. is a successor in interest to Tanglewood
Energy, Inc. at the Coalbank Fork No. 12 Mine.
3. The products of the Coalbank Fork No. 12 Mine enter commerce
and the Coalbank Fork No. 12 Mine is therefore subject to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq. (hereinafter "the Mine Act").
4. The administrative law judge has jurisdiction to hear and
decide this case.
5. The assessed violation history report may be used in
determining an appropriate civil penalty.
6. For purposes of the assessment of civil penalties the
violation history of Tanglewood Energy, Inc. at the Coalbank Fork
No. 12 Mine shall be considered to be the violation history of
Fern Cove, Inc. and vice versa.
7. Fern Cove, Inc. and Tanglewood Energy, Inc. are jointly and
severally liable for all civil penalties assessed against either
by the Federal Mine Safety and Health Review Commission relative
to the Coalbank Fork No. 12 Mine.
8. Complainant Samuel Knotts was discharged by respondent on
January 28, 1994.
9. Complainant Samuel Knotts was discharged because of
respondent's belief that he spoke with mine engineer J. Randy
Campbell for over 2 hours on January 27, 1994.
10. At the time of his discussion with mine engineer J. Randy
Campbell on January 27, 1994, Complainant Samuel Knotts was the
only representative of the respondents on the surface of the
Coalbank Fork No. 12 Mine.
11. On September 1, 1993, Complainant Samuel Knotts testified on
behalf of the Secretary in the case of Secretary ex rel. Perry
Poddey v. Tanglewood Energy, Inc.
12. On January 25, 1994, Administrative Law Judge Arthur Amchan
issued a decision ordering respondent to pay Perry Poddey over
$9,000 in back wages as a result of the respondent's violation of
section 105(c) of the Mine Act.
13. A news story about Perry Poddey's reinstatement with back
pay appeared in the January 26, 1994 edition of the Clarksburg
Telegram.
14. A news story about Perry Poddey's reinstatement with back
pay appeared in the January 26, 1994 edition of USA Today.
15. Complainant Samuel Knotts engaged in protected activity
under the Mine Act when he testified in the case of Secretary ex
rel. Perry Poddey v. Tanglewood Energy, Inc.
16. Complainant Samuel Knotts engaged in protected activity
under the Mine Act to the extent that he assisted mine safety and
health inspectors in locating violations.
17. Complainant Samuel Knotts received $3,640 in unemployment
benefits from the State of West Virginia since his termination by
respondent on January 28, 1994.
18. Complainant Samuel Knotts is presently employed by the West
Virginia Department of Highways and has been so employed since
July 1, 1994, working 40 hours per week at a rate of $7.85 per
hour. Prior to his full-time employment Mr. Knotts worked part
time for the Department of Highways for 2 months.
19. At the time of his discharge by respondents, complainant was
working 40 hours per week at the rate of $10.00 per hour plus
occasional overtime at time-and-a-half.
FINDINGS OF FACT
Having considered the record evidence in its entirety, I find
that a preponderance of the reliable, relevant, and probative
evidence establishes the following findings of fact:
1. Complainant Samuel William Knotts was employed as an outside
man for the respondent, Tanglewood Energy, Inc. and Fern Cove,
Inc. for approximately 3 1/2 years at the Coalbank Fork No. 12
Mine prior to his discharge on January 28, 1994.
2. Respondent Randy Burke is President of Fern Cove, Inc. and
of Tanglewood Energy, Inc.
3. Respondent Randall Key is a part owner and officer of Fern
Cove, Inc. and Vice-President of Tanglewood Energy, Inc.
4. Inspector Kenneth W. Tinney testified concerning two
citations written in November of 1992, and another on January 6,
1993, for a repeat violation concerning a discharged cylinder on
the belt fire suppression system. He discussed these violations
with Knotts and Key, and after the November citations Knotts
asked him not to use his name in discussing violations with the
company anymore "because they 'kind of' blamed him for getting
the citations." Key stated that he did not recall Tinney at any
time mentioning an employee's name during discussions of safety
violations, but Key admitted that he probably discussed the
vio-lations with Knotts because certain actions needed to be
taken to correct the same and Knotts was the individual with the
respon-sibility for checking the cylinder and had the
responsibility to report any problems to Key.
5. Inspector Reed testified that on one occasion in July
of 1993, when MSHA inspectors were having trouble reconciling
training certificates with an outdated list of certified
employees that was kept in the mine office, Knotts suggested they
compare the training certificates to current time sheets that he
pointed out to them. This resulted in Inspector Reed coming up
with four employees that had not received their training, for
which he wrote a withdrawal order. Reed also testified that
Knotts told him later on a return visit that he "got pretty well
chewed out over the training records."
6. On August 10, 1993, Knotts made a verbal complaint to
Inspector Reed of unsafe electrical practices that led to an
electrical inspection of the mine. The electrical inspection
resulted in a number of violations being issued. There was,
however, no testimony that the respondents knew that the
electrical inspection was a result of a complaint originating
with Knotts.
7. Respondents were generally aware, however, that Knotts
was particularly helpful in assisting mine safety and health
inspectors in locating violations.
8. On September 1, 1993, Knotts testified on behalf of the
Secretary in the case of Secretary ex rel. Perry Poddey v.
Tanglewood Energy, Inc., 15 FMSHRC 2401 (ALJ) (1993). He gave
testimony that directly supported the testimony of Perry Poddey,
the complainant in that case, concerning who bore responsibility
for repairing certain equipment. In his November 29, 1993
decision finding respondent Tanglewood Energy, Inc. guilty of
violating section 105(c) of the Mine Act, Judge Amchan
specifi-cally cited Knotts' testimony as supporting his finding
against the respondent on this issue, which Judge Amchan
described as "[p]ossibly the most critical issue in th[e] case."
Secretary ex rel. Perry Poddey v. Tanglewood Energy, Inc., 15
FMSHRC 2401, 2410-2411 (ALJ) (1993). On January 25, 1994, 3 days
before Knotts was fired, Judge Amchan issued a Decision on
Damages ordering Tanglewood Energy, Inc. to pay Perry Poddey over
$9,000 in back wages and interest as a result of the respondent's
violation of section 105(c) of the Mine Act.
9. A news story about Poddey's reinstatement with back pay
appeared in the January 26, 1994 edition of the Clarksburg
Telegram, and the January 26, 1994 edition of USA Today. The
story was also reported on television.
10. Mine engineer J. Randy Campbell arrived at the Coalbank
Fork No. 12 Mine on January 27, 1994, to conduct an inspection as a
representative of the land owners of the property, or in his
words "to investigate whether or not the operators were
efficiently mining the coal and concerning their production."
11. Campbell's inspections, which generally lasted from 1 to 4
hours, usually included asking questions of rank and file miners
like Knotts because he felt the information he obtained from rank
and file miners tended to be more specific and more accurate. He
would also usually ask rank and file miners about morale at a
mine because of its correlation to production.
12. There is a lot of contention in the record concerning
the length of the conversation between Campbell and Knotts on the
morning of January 27, 1994. Respondents produced a lot of
evidence that, if found credible, would tend to establish the
conversation went on for 2 hours. On the other hand, the two
participants to the conversation contend it was for no longer
than 45 minutes, and was conducted, at least for a part of the
time, while Knotts busied himself with other tasks around the
mine office. During this time, they discussed the mine's
violation history, the condition of the batteries on the ram
cars; the bypassed electrical components on the mantrips,
including the three-wheelers and four-wheelers and the fact that
a lot of them were junk or needed substantial work to be
repaired. They discussed morale issues generally, and they
talked about management and problems with management, vacations,
and the lack of vacation pay, as well as the fact that Messrs.
Key and Burke were involved at other mines and that Key had not
been working at this mine until the recent past few months. More
particularly, they discussed Key and Burke's management style and
Burke's new truck. The truck's relevance stems from the notion
that if Burke could afford a new truck, he could also afford to
give miners a paid vacation, which they had not had for the last
2 years. Apparently, the truck had become a "morale" issue at
the mine, and Knotts thought it appropriate to pass that
information to Campbell.
Interestingly, both Campbell and Knotts testified that Knotts
stated at the time that he could be fired if management could
hear his comments to Campbell. Mr. Key did hear those comments
via an open mike telephone line and as he predicted, Knotts was
fired the next day. In order to resolve the timing issue, I find
as a fact that the Knotts/Campbell conversation on January 27,
1994, lasted from 1 hour 15 minutes to 1 hour 30 minutes. In so
finding, I have given the greater credibility to the
disinterested witnesses. First of all, Mr. Campbell stated that
he arrived at the mine between 7:30 a.m. and 8:30 a.m., and that
at least 45 minutes elapsed after his arrival before he began his
conversation with Knotts. He also stated that he finished his
conversation with Knotts and left the mine somewhere between 9:00
a.m. and 9:30 a.m. Operating at the extremes of those
limitations, I deduce the conversation could have been as long as
1 hour and 15 minutes. Secondly, Mr. Young, although he seemed
uncertain and confused about some of the details of that morning,
has the advantage of no longer working for the respondents and
seemingly "has no dog in this fight." He estimated the time
during which Key listened into the conversation on the open line
telephone as "at least an hour and a half."
13. The decision to terminate Knotts was made by Key and
agreed to by Burke. He was actually discharged at a meeting held
in Key's office on January 28, 1994.
DISCUSSION AND CONCLUSIONS
The principles guiding the Commission's analysis of
discrimination under the Mine Act are well settled. A miner
establishes a prima facie case of prohibited discrimination by
proving 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., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other
grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no
pro-tected activity occurred or that the adverse action was in no
part motivated by protected activity. Pasula, 2 FMSHRC at 2799-
2800. If the operator cannot rebut the prima facie case in this
manner, he nevertheless may defend affirmatively by proving that
he also was motivated by the miner's unprotected activity and
would have taken the adverse action in question for the
unpro-tected activity alone. 2 FMSHRC at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir. 1987).
It is stipulated that Knotts engaged in protected activity
under the Mine Act when he testified in the case of Secretary ex
rel Perry Poddey v. Tanglewood Energy, Inc. and also to the extent
that he assisted mine safety and health inspectors in locating
violations. Furthermore, I find that his discussion with
Campbell on January 27, 1994, also constituted protected activity
under the Mine Act to the extent that Knotts made safety-related
complaints to Campbell concerning the condition of equipment at
the mine. I also find that the complaints were truthful. In
fact, much of the mine equipment was in poor condition. The
company had five golf carts (or four-wheelers) and none were
operable at the time of Knotts' discharge. At the time of
Campbell's visit, there was no ride available to bring him
underground, a condition that had occurred at least once before.
The ram cars had been brought over from another mine and had old
worn out batteries that would not hold a charge. A number of
vehicles were observed to have been rewired so that essential
safety components were either bypassed or disconnected.
State Safety Instructor Thomas Bass and MSHA Inspector Virgil
Brown testified at length as to the possible dangers these
conditions posed, and Knotts himself described problems he and
other employees had experienced with faulty equipment.
While the complainant need not possess any specific intent in
making statements regarding safety or health in order for his
statements to be considered protected activity, it is clear here
that the complainant had a specific intent when relating certain
information to Campbell. The complainant reasonably perceived
Campbell to be an agent of the land owners who he thought would
or could exert pressure, either directly or indirectly, on the
respondents to improve safety at the mine. When the complainant
was asked at the hearing what his purpose was in telling Campbell
about the repeated electrical violations, the complainant
responded that he thought the mining conditions would improve as
a result of his having spoken up and that the working conditions
at the mine would in turn become safer for the men. I find that
the complainant was motivated by the fact that he reasonably
thought Campbell's communication with the land owner could
positively influence safety at the mine.
The adverse action in this case was, of course, the dis-charge.
It is stipulated in this record that the reason for the discharge
was his conversation with Campbell. Thus, there is a clear nexus
between one of the instances of protected activity and the
adverse action. The nexus between the other two instances of
protected activity and the adverse action is less clear. I find
a very fragile connection, if any; perhaps I would liken it to
background noise that maybe set the scene for Knotts' discharge.
The earlier incidents involving MSHA inspectors are very remote
in time to complainant's discharge and are not more than
peripherally relevant or material to the discharge itself. With
regard to his testimony in the Poddey case, it also is relatively
remote in point of time. He testified on September 1, 1993, and
the decision on the merits was issued November 29, 1993.
In any event, Knotts' discharge was motivated at least in part
by his protected activity and therefore, I find that the complainant
has made out a prima facie case of discrimination under the Mine
Act. I also find that the respondents are unable to rebut this
prima facie case by showing that no protected activity occurred
or that adverse action was in no way motivated by the protected
activity. The preponderance of the evidence is clearly to the
effect that Knotts' engaged in protected activity and that his
discharge was motivated at least in part by that protected
activity.
When a prima facie case is established, a respondent may
defend affirmatively by showing that it was also motivated by an
unprotected activity and that it would have taken the adverse
action in any event for the unprotected activity alone. Of
course, the respondent bears the burden of proof with regard to
this affirmative defense. Haro v. Magma Copper, 4 FMSHRC 1935
(1982).
Respondents here argue that complainant's discussion with
Campbell contained both protected and unprotected aspects and
that complainant was discharged for the unprotected aspects,
alone.
There are two distinct problems the respondents had with this
conversation. First, it was too long. And secondly, it was
personally slanderous to both Key and Burke, at least in part.
With regard to the first, I have found it was 75 to 90 minutes
long. The Secretary makes an excellent point in his brief to the
effect that however long it was, respondent Key condoned that
activity. He stated that the underground phone could have been
used to call the surface at any time during the conversation.
According to his testimony, he easily could have pressed down the
button on the phone after the first 5 minutes of the discussion,
and told the complainant to get back to work. Key's inaction is
no different than if he was on the surface, saw Knotts talking to
Campbell and did nothing to terminate the conversation.
Moreover, for whatever amount of time he spoke to Campbell, the
complainant was essentially doing his job. He was the only
employee on the surface at the time Campbell visited the mine and
his job duties included answering questions of more or less
"official" visitors, like Campbell. It was Campbell who
initiated the discussion with complainant, as he had done on
previous occasions. He began questioning complainant because
respondents had not been able to provide him with a ride
under-ground, he was not satisfied that he had received
sufficient information from respondents over the phone to prepare
his report, and because he believed that complainant was as
know-ledgeable about mine operations as anyone else at the
facility. And most of what the complainant stated was in the
form of embellished responses to questions put to him by
Campbell.
Turning to the content of the conversation, it is true that
certain portions of what Knotts was passing on to Campbell could
be characterized as "gossip" and inflammatory language at that.
However, I find that in the context of the coal mining industry
this was pretty mild stuff compared to many other cases which
come before the trial judges of this Commission. I therefore
conclude that the unprotected portions of the Knotts/Campbell
conversation could not reasonably have formed the basis for
Knotts' discharge without more.
On balance, I find that the respondents did not meet their
burden of proving the affirmative defense.
Accordingly, I conclude that respondent terminated complainant's
employment on January 28, 1994, in violation of section 105(c) of
the Mine Act.
ORDER
WHEREFORE IT IS ORDERED that:
1. Within 15 days of this decision, the parties shall confer
in an effort to stipulate the amount of complainant's back pay due,
interest on that amount, and litigation costs as well as a
reasonable civil penalty for the violation found herein,
con-sidering the six statutory criteria contained in section
110(i) of the Mine Act. Such stipulation as to damages shall not
prejudice respondent's right to seek review of this decision. If
the parties agree on damages, the Secretary shall file a
stipu-lated proposed order on damages within 30 days of this
decision. If the parties do not agree, the Secretary shall file
a list of mutually agreed upon trial dates for a further hearing
on the issue of damages, including the civil penalty to be
assessed herein.
2. Respondents shall expunge any reference to his January 28,
1994 discharge from Mr. Knotts' personnel file maintained by the
company.
3. This decision will not become final until a subsequent order
is issued concerning damages and penalty.
Roy J. Maurer
Administrative Law Judge
Distribution:
James Blair, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Paul O. Clay, Jr., Esq., Laurel Creek Road, P. O. Box 746,
Fayetteville, WV 25840 (Certified Mail)
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