.
STILLWATER MINING COMPANY
January 30, 1996
WEST 95-513-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 30, 1996
CHRIS SCHULTZ, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 95-513-DM
: RM MD 95-14
STILLWATER MINING COMPANY, :
Respondent : Stillwater Mine
: Mine ID 24-01490
DECISION
Appearances: Scot Schermerhorn, Esq., Freeman & Schermerhorn,
P.C., Billings, Montana, for the Complainant;
Jeanne M. Bender, Beth Nedrow, Esqs., Holland &
Hart, Billings, Montana, for the Respondent.
Before: Judge Weisberger
Statement of the Case
This case is before me based upon a Complaint filed by
Chris Schultz on August 30, 1995, alleging that Stillwater
Mining Company (Stillwater) terminated him in violation of
Section 105(c) of the Federal Mine Safety and Health Act of
1977 (the Act). An Answer was filed by Stillwater on
September 25, 1995. Pursuant to notice, the case was heard
in Billings, Montana, on October 31, 1995. Chris Schultz
testified on his own behalf. Louis Meyers and Larry James
Jaudon testified for Stillwater. Each of the parties filed
a Brief and Proposed Findings of Fact on December 4, 1995.
On December 8, 1995, Complainant filed a Response Brief. On
December 13, 1995, Respondent filed a reply to this brief.
Findings of Fact
On July 11, 1994, Chris Schultz was hired by Stillwater
to work as a laborer at its Stillwater Mine, an underground
platinum group materials mining operation. Schultz
underwent 40 hours newly employed inexperienced miner
training. At that time, he received a copy of Stillwater's
Employee Handbook and its Safety Rules and Practices. In
the course of the training, there was no discussion
regarding any possible disciplinary action that would be
meted out to an employee for reporting an attack by another
employee.
Prior to March 23, 1995, Schultz had been evaluated
two times by his Supervisor, Tom Goldsmith, and was rated on
his ability to get along with other employees. Schultz
indicated that there did not seem to be anything bad in the
evaluations. Prior to March 23, 1995, Schultz never made
any safety complaints.
In January 1995, Schultz was assigned to work in the east
side of the mine, and to train another laborer, Larry
Riddle, who had just been hired. Schultz continued to work
with Riddle through March 23, 1995. Schultz indicated that
he did not have any personality conflicts with Riddle, and
was not aware of any hard feelings that Riddle had towards
him. Riddle did not complain to mine management about any
personality problems with Schultz. Schultz was never
disciplined for any personality conflict with any other
miner.
On March 23, 1995, Schultz did not work with Riddle.
Schultz indicated that during the workday he borrowed a
cigarette from Riddle, and engaged in small talk. According
to Schultz, Riddle did not exhibit any hint of any hostile
feelings.
At the end of the shift,[1] Schultz was in the process
of descending a flight of stairs down to the parking lot. He
saw Riddle at the bottom of the stairs. According to
Schultz, Riddle said to him, "... well, do you have
something smart to say now" (Tr. 21). Schultz said that he
said, "what?" (Tr. 21), and then Riddle hit him. Schultz
then dropped the clothes and lunch box that he had been
carrying, and hit Riddle. According to Schultz, Riddle then
hit him a few times and then he (Schultz) backed off.
Schultz said that he then asked Riddle, "what's going on?"
and Riddle said, "meet me at Carter's Camp in ten minutes"
(Tr. 22).
Schultz then drove home and called Louis Myers, Stillwater's
Superintendent, and told him that Riddle had attacked him in the
parking lot. Myers then told Schultz to return to the mine to
talk about the incident.
Schultz indicated that he initially reported the incident to
Myers, because he was afraid that Riddle would have retaliated.
Schultz indicated that he had been working with Riddle 40 to 50
percent of the time underground, mostly in isolated areas, and
it would have been easy for Riddle to hurt or kill him.
Schultz returned to the mine and met with Myers, Allen Buell
another superintendent, and Larry Jaudon, Stillwater's Safety
Coordinator. Myers took Schultz's statement and told him that
his job was in jeopardy as he thought it was a violation of
federal law to fight on mine property. Myers told Schultz to go
home, and that he would be in touch with him.
On March 27, Schultz called Myers, who asked him to return
to the mine to talk to him. Schultz returned to the mine at
approximately 1:00 p.m., and met with Myers and Ralph
McKenzie, Stillwater's Safety Coordinator. Myers indicated
that he had talked to Riddle, and informed him that Riddle
had said that he and Schultz had a problem getting along.
Myers asked Schultz if there were any problems, and Schultz
said that there were not any that he was aware of. Myers
told Schultz that he had to talk to John Thompson the mine
manager. Myers recommended to Thompson that both Riddle
and Schultz be terminated for fighting and unacceptable
behavior, and Thompson agreed.
On March 28, Schultz called Myers, who told him to return
to the mine to meet with him. Myers informed him that he had
to terminate him, and that it was Thompson's decision.
Schultz said that he asked why he was being terminated, and
Myers did not give any response to the question, but said
that it was Thompson's decision. Schultz then wrote to
McKenzie 2 or 3 days later. On April 11, Schultz received a
form entitled Record of Discussion With Employee which
indicates that the action taken was "discharge"
(Complainant's Exh. 2). This form, signed by Myers, dated
April 10, further states as follows: "Termination for (1)
disregard for the rights of fellow employees. (2) disregard
or violation of accepted behavioral standards."
Thompson did not testify; however, he was deposed on
October 24, 1995, and his deposition was admitted in
evidence without objection. He was asked a serious of
questions regarding his role in various personnel actions,
and then specifically about "discharge from employment."
His answer, as pertinent, is as follows: "Generally speaking
I would be the final say-so, ... ." (Complainant's Exh. 19,
p. 5). Thompson indicated that he concurred in Myers'
recommendation to discharge Schultz. He indicated
specifically that the discharge had nothing to do with job
performance and that the ultimate reason was "fighting on
company property" (Complainant's Exh. 19, p. 11).
Riddle did not testify. Myers indicated that he spoke to
Riddle, who indicated that he did throw the first punch, but
that he had been provoked by Schultz who had been harassing
him for some time. Myers indicated that he could not find
anyone who had witnessed the fight, nor did anyone
corroborate Riddle's allegation that he had been provoked
and harassed by Schultz. Myers terminated Riddle for
fighting, and also because he had not yet completed his
initial probationary period.
Stillwater's Safety Rules and Practices which was in effect
when Schultz was hired (Complainant's Exh. 8) indicates that
"scuffling and all forms of horseplay are prohibited." (Id.,
P. 8). The General Safety Rules, revised on September 19,
1994, and in effect at the date of the incident in issue,
deleted the prohibition against scuffling and horseplay.
Stillwater's Policies/Procedures/Benefits does not contain
any prohibition against fighting.
Myers indicated that in terminating Schultz, he relied on
the fact that fighting is not an acceptable behavior.
However, he indicated on cross-examination that fighting
does not include being attacked or defending yourself.
Discussion
The Commission, in Braithwaite v. Tri-Star Mining,
15 FMSHRC 2460 (December 1993), reiterated the legal
standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Tri-Star, at 2463-2464,
stated as follows:
The principles governing analysis of a discrimination
case 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, 2797-800 (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 protected activity occurred or that
the adverse action was in no part motivated by protected
activity. Pasula, 2 FMSHRC at 2799-800. If the
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, 2 FMSHRC at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal
Corporation, v. United Castle Coal Co., 813 F.2d 639, 642
(4th Cir. 1987).
In essence, it appears to be Schultz's position that he was
fired as a result of his communicating to management the attack
on him by Riddle. Schultz argues that this communication
constitutes a safety complaint, as he was afraid that Riddle
would have retaliated and injured him. He also asserts, in
essence, that he was not fighting, as he hit Riddle back in order
to protect himself after he had been hit by Riddle.
I find that hitting another miner, even where one was hit
first, is not the type of activity that is protected under the
Act. See, Bruno v. Cyprus Plato, Mining Corp., 10 FMSHRC 1649,
1651, (1988) (Judge Morris); Dickey v. United States Steel,
5 FMSHRC 519, 582 (1983) (Judge Koutras); Burgan v. Harlan
Cumberland Coal Company, 15 FMSHRC, 889, 900 (1993)
(Judge Feldman). I agree with the following statement of the
law as set forth in Bryant v. Clinchfield Coal Company, 4 FMSHRC
1380, 1421 (1982) (Judge Kennedy): "Any claim of protected
activity that is not grounded on an alleged violation of a health
or safety standard or which does not result from some hazardous
condition or practice existing in the mine environment for which
the operator is responsible falls without the penumbra of the
statute." (See also, Hastings v. Cotter Corporation, 5 FMSHRC
1047 (1983)(Judge Carlson)).
I further find that Stillwater's action in terminating
Schultz was based solely upon his participation in the
altercation of March 25. There was no disparate treatment of
Schultz, since Riddle, who was involved in the altercation, was
also fired for this incident. Any argument that the termination
of Schultz was not proper as he was engaged in self defense, and
that such activity is not precluded by any of Stillwater's rules
or policies, is not for this forum to decide, as it is not the
basis of any violation under the Act.
For all the above reasons, I conclude that Schultz has not
established that Stillwater violated Section 105 of the Act.
Therefore his Complaint is dismissed.
ORDER
IT IS ORDERED that this case be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Scot Schermerhorn, Esq., Freeman & Schermerhorn, P.C.,
401 No. 31st, Suite 710, Box 7176,
Billings, MT 59103
(Certified Mail)
Jeanne M. Bender, Esq., Beth Nedrow, Esq,
Holland & Hart,
401 North 31st St., Suite 1500, P.O. Box 639,
Billings, MT 59103
(Certified Mail)
/ml
**FOOTNOTES**
[1]:When Schultz left the mine at the end of the shift on
March 23, 1995, he was not scheduled to work for 5 days, due
to the normal rotation of his work shift.