.
DURANGO GRAVEL
January 27, 1998
WEST 97-96-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
January 27, 1998
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 97-96-DM
on behalf of CLAY BAIER :
Complainant : J & J Pit
:
v. : Mine I.D. 05-04517
:
DURANGO GRAVEL, :
Respondent :
DECISION
Appearances: Kristi Floyd, Esq., Office of the Solicitor, U. S.
Department of Labor, Denver, Colorado, for Petitioner;
Jim Helmericks, owner, Durango Gravel, Durango, Colorado,
for Respondent.
Before: Judge Manning
This case is before me on a complaint of discrimination
brought by the Secretary of Labor on behalf of Clay Baier against
Durango Gravel under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. �815(c) (the "Mine Act"). The
complaint alleges that Durango Gravel terminated Mr. Baier from
his employment in violation of section 105(c). A hearing in this
case was held in Durango, Colorado.
I. FINDINGS OF FACT
Durango Gravel owns and operates a sand and gravel pit in La
Plata County, Colorado. Durango Gravel is a sole proprietorship
owned by James Helmericks. The mine consists of a pit and a
crusher. It is a small operation that generally employs two
individuals in addition to Mr. Helmericks. The mine is not very
profitable. The crusher is old and breaks down frequently. Mr.
Baier testified that the crusher operated only about eight hours
per week. (Tr. 69). He stated that the crusher would work for
about two hours and then it would break down. Id. He also
testified that it was broken down about 99 percent of the time.
Id. Mr. Helmericks testified that the crusher is "old and slow"
and cannot crush very much rock in a given month. (Tr. 313-14).
Clay Baier started working for Durango Gravel as a truck
driver in April 1996. All employees perform a wide variety of
tasks as directed by Mr. Helmericks. Mr. Baier would frequently
operate the loader, repair equipment including the crusher, and
perform other tasks. Mr. Helmericks terminated Mr. Baier from
his employment on August 1, 1996.
On May 20, 1993, MSHA Inspector Dennis Tobin issued an
imminent danger order to Durango Gravel because he observed an
employee using a loader to dig at the toe of a highwall. The
order charged a violation of 30 C.F.R. � 56.3131 because the
inspector was concerned that the highwall could fail and injure
or kill the equipment operator. (Ex. P-3). In April 1996, MSHA
received a complaint from a miner concerning hazardous conditions
at the mine. (Ex. P-1). One of the hazards mentioned in the
complaint was that the operator was undercutting the wall at the
face to remove the gravel. (Id. at 2).
In July 1996, MSHA Inspectors Royal Williams and George
Renton inspected the mine in response to the complaint.
(Tr.212). The inspectors talked to Mr. Helmericks and his
employees about mining under the toe of the highwall. Inspector
Williams testified that there was an area along the highwall
where an overhang existed and that it is his belief that miners
were removing material from the toe of the highwall at that
location. (Tr. 213). Inspector Williams told Mr. Baier not to
dig into the face of the highwall because the highwall could fail
and seriously injure or kill him. He advised Mr. Baier that if
rock was needed to feed the crusher, material should be pushed
down from the top of the highwall and scooped up with the loader.
Mr. Baier told the inspector that he had been digging into the
toe of the highwall. (Tr. 215). Because neither inspector
observed anyone digging into the highwall, no citations were
issued.
The facts surrounding Mr. Baier's discharge are seriously
disputed by the parties. Mr. Baier testified that he started
pushing material down from the top of the highwall with the
loader in the weeks that followed the MSHA inspection but that
Mr. Helmericks told him not to go on top of the highwall. He
further testified that on August 1, 1996, he arrived at work at
about 7:00 a.m. He stated that Mr. Helmericks and his son, Jim
Helmericks, Jr., ("Jim, Jr.") arrived soon after. Baier stated
that Helmericks fired him immediately after he arrived on the
property. Baier testified that Helmericks told him that he did
not belong at the mine and that he verbally threatened him.
Baier testified that he was fired because he insisted on pushing
material from the top of the highwall rather than digging at the
toe of the highwall. Baier testified that on the Monday before
he was terminated, Helmericks observed him pushing material off
the top of the highwall and Helmericks "jumped all over me
again." (Tr. 33). He stated that Helmericks did not give a
reason for his termination and that Durango Gravel did not pay
him for his final week and one-half of work.
Mr. Helmericks testified that on the day that Mr. Baier was
terminated the crusher was down for repairs. He stated that upon
his arrival at the mine, he assigned his two employees, Mr. Baier
and Jim, Jr., the task of repairing the crusher. Mr. Helmericks
then left the mine to get parts in Farmington, New Mexico.
Helmericks testified that when he returned to the mine later that
day, Baier was up on the highwall with a loader pushing material
down from the top of the highwall. He stated that he terminated
Baier for not doing his assigned task, repairing the crusher. He
testified that he did not want Baier up on the highwall because:
(1) the crusher needed to be repaired; (2) the mine had enough
loose rock to feed the crusher once it was repaired without
pushing any more material down; and (3) he believed that pushing
material down with a loader was not safe. Helmericks testified
that if the mine needed additional loose material to feed the
crusher, he would push material down from the top of the highwall
using a track-mounted bulldozer. He stated that he did not want
any employee other than himself pushing material over the edge of
the highwall and that he did not want loaders used for that
purpose. Helmericks stated that he did not terminate Baier
because he refused to dig into the toe of the highwall, but
because he did not follow his direction to assist Jim, Jr., in
the repair of the crusher and to not push material from the top
of the highwall.
I find that cutting into the highwall at Durango Gravel with
a loader is very hazardous. Such a procedure is likely to
decrease the stability of the wall. It is highly likely that
material will fall from the highwall and injure or kill the
loader operator if such a procedure is used.
II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine
Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act"
recognizing that, "if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of
their participation." S. Rep. No. 181, 95th Cong., 1st Sess. 35
(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Mine Act
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 of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980),
rev'd on other grounds, 663 F.2d 1211 (3d. Cir. 1981); Secretary
of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The mine 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
the protected activity. Pasula, 2 FMSHRC at 2799-800. If the
mine operator cannot rebut the prima facie case in this manner,
it nevertheless may defend by proving that it was also motivated
by the miner's unprotected activity and would have taken the
adverse action for the unprotected activity alone. Id.;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
A. Did Clay Baier Engage in Protected Activity?
1. Baier's Discussions with MSHA Inspectors
For the reasons set forth below, I find that Mr. Baier
engaged in activity that is protected by section 105(c)
of the Mine Act when he spoke with MSHA inspectors
during their inspection in July 1996. He asked whether
he should cut into the toe of the highwall when getting
rock to run through the crusher. The record makes it
clear that Mr. Helmericks was upset that the inspectors
talked to Mr. Baier. Mr. Helmericks was not at the
mine at the time of the inspection and he believed that
the inspectors should have obtained any information
about mining practices from Jim, Jr., who was "in
charge" whenever Helmericks was absent from the mine.
As I explained at the hearing, MSHA inspectors are
authorized to speak with miners during their
inspections without the approval of the mine operator.
Indeed, inspectors often spend more time talking with
miners than with representatives of the operator. Mr.
Baier's conversation with the inspectors about safety
issues was protected activity.
2. Baier's Refusal to Dig into the Toe of the Highwall
Section 105(c) also protects "a miner's right to refuse
to work under conditions that he reasonably and in good
faith believes to be hazardous." John A. Gilbert v.
FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir 1989)(citations
omitted). The "perception of a hazard must be viewed
from the miner's perspective at the time of the work
refusal." Id. Such a work refusal is protected under
section 105(c).
It is clear that after discussing the issue with
Inspector Williams, Mr. Baier reasonably and in good faith
believed that digging material from the toe of the
highwall created a significant risk to his safety.
Accordingly, if Mr. Baier were ordered or otherwise
required to dig material from the highwall and he
refused to do so, his refusal would constitute
protected activity. I discuss this issue in
considerable detail below because this dispute is
central to the case.
Mr. Baier testified that he was told by Mr. Helmericks
to dig material from the toe of the highwall on many
occasions. (Tr. 15-16). He stated that he did not
know that this practice was dangerous until the MSHA
inspectors told him in July that he should get "product
from the top and push it down." (Tr. 17). Mr. Baier
testified that whenever he attempted to follow the
procedures recommended by the MSHA inspectors, Mr.
Helmericks would become angry and say that the
inspectors "don't know what they are talking about."
(17-19). Baier also testified that Helmericks told him
to tell the inspectors that he was pushing material
down from the top rather than digging at the toe of the
highwall. Id.
Baier testified that on August 1, Helmericks cursed at
him, said "you don't belong here," and terminated him. (Tr.
22-23). He stated that Helmericks did not give him a
reason for the termination. (Tr. 22-24). Baier stated
that Helmericks terminated him in the morning after
Baier had started all of the equipment in preparation
for operations. He testified that the crusher was not
down for repairs that morning. Baier stated that on
the Monday before his termination, he was pushing
material off the highwall when Helmericks "jumped all
over me again." (Tr. 33). Baier believes that on
August 1, Helmericks was still angry at him for his
refusal to dig into the highwall on the previous
Monday. (Tr. 39). He stated that he does not know why
Helmericks terminated him three days after his work
refusal rather than at the time of the altercation on
Monday.
Mr. Helmericks testified that he had instructed loader
operators to dig into the highwall in previous years
because he "didn't know any better." (Tr. 266). He
stated that once he received the citation in 1993, he
stopped that practice. Id. Helmericks testified that,
since that time, he has instructed employees to obtain
easily available material. He explained that the
highwall itself is hard near the bottom, but that
material naturally falls from the top and is deposited
near the base of the highwall. (Tr. 265, 325-27). He
testified that these deposits are easy to scoop up and
that removing them does not endanger the loader
operator. (Tr. 264-66). He also testified that he had
stripped off the top 10 feet of the highwall in
preceding years with a bulldozer. (Tr. 328-29). He
stated that in the weeks before Baier's termination, he
instructed him to get this "easy, available material"
when he needed feed for the crusher. (Tr. 262).
Helmericks stated that these deposits are illustrated
in the photographs in Exhibits R-8 and J-1. He
testified that although these photographs were taken
the week before the trial, the conditions at the mine
had not changed because mining had not progressed
significantly since August 1, 1996. (Tr. 263; 287).
Inspector Williams testified that he observed loose
material in front of the highwall at the time of his
inspection in July 1996. (Tr. 217-18). He also
testified that scooping up material along the outer
edge of this loose material would not present a hazard.
(Tr. 235).
Mr. Helmericks testified that on August 1 the crusher
was down because the tail roller "had a bad bearing and the
belt had received some damage." (Tr. 249). He stated
that he instructed Baier and Jim, Jr., to start
repairing the belt and tail roller. Mr. Helmericks
testified that he went to Farmington to get parts
needed at the mine. When he returned at about 11:00
that morning, Jim, Jr., was working on the crusher, but
Baier was on top of the highwall in a loader pushing
material off the edge. (Tr. 250-51). Helmericks
testified that he drove to the top of the highwall and
asked Baier why he was up on the highwall. He stated
that Baier replied that the MSHA inspectors told him to
mine from the top of the highwall. (Tr. 251-52).
Helmericks told Baier that he had previously warned
Baier not to go up on the highwall with the loader
anymore. Id. Helmericks then told Baier that he was
fired. An altercation followed concerning pay that
Baier claimed was due him.
Helmericks testified that he fired Mr. Baier because he
had been assigned to work on the crusher and he had taken
it upon himself to push material off the highwall with
the loader. (Tr. 266-67). Helmericks further testified
that there was no need for Baier to be up on the
highwall at that time because the crusher was down and
there was plenty of loose material around the pit to
feed the crusher once it was repaired in any event.
(Tr. 258-59; 264, 283-85, 313). Helmericks testified
that he only wanted himself working on top of the
highwall because he preferred to use a bulldozer to
push down material. (Tr. 264, 267, 313) He stated
that when the scoop of a loader is full of material,
the balance point is at the front tires. (Tr. 268-69).
He further testified that the top of the highwall is
angled towards the edge. (Tr. 268-69, 303-04; Ex. J-
1). He believes that pushing or dumping material off
the edge of the highwall with the loader at the J & J
Pit is dangerous. Id.
Mr. Helmericks denies that he terminated Mr. Baier early
in the morning of August 1 after Baier had started all of
the equipment, including the crusher. He stated that
the crusher was out of order that day and that he
terminated Baier around 11:00 a.m. for failing to help
his son repair the crusher as directed. Helmericks
testified that he did not want Baier pushing material
from the top of the highwall and Baier believed that
Inspector Williams authorized him to do so. (Tr. 274-
76, 331-32). The testimony of Jim, Jr., is consistent
with Mr. Helmericks' testimony in this regard. (Tr.
375-82, 394-98).
The Secretary takes the position that Mr. Helmericks
continued to require Baier to dig into the toe of the
highwall to get material for the crusher and that when
Baier attempted to get the material by pushing it down
from the top, he was terminated from his employment.
Baier testified that the mine had no material for the
crusher "unless I was digging under the toe." (Tr.
449). Durango Gravel takes the position that the
crusher was not operating on the day of his termination
and that the mine had plenty of material to feed the
crusher without the necessity of digging into the toe
or going on top of the highwall. Helmericks testified
that he did not fire Baier for refusing to dig into the
toe, but for taking it upon himself to push material
off the top of the highwall with a loader despite
repeated instructions not to do so.
There is evidence in the record to support each party.
On the one hand, Baier's testimony is supported by the
testimony of William Elvidge. Mr. Elvidge was employed
at the J & J Pit for a period of time up to April 1996.
(Tr. 164-65). He testified that he was required to dig
at the toe of the highwall when he was employed by
Durango Gravel because there was not enough material
available from the "safe side" to feed the crusher.
(Tr. 167). He stated that Mr. Helmericks showed him
how to dig at the toe of the highwall. Id. Elvidge
stated that whenever he asked Mr. Helmericks to push
material from the top of the highwall, his response was
that he would do it later. (Tr. 168, 181). Mr.
Elvidge is the miner who filed the safety complaint
with MSHA that prompted the July inspection. (Tr. 169;
Ex. P-1).
Baier's testimony is also supported by Mr. Helmericks'
attitude towards work refusals related to safety, as
exhibited at the hearing. For example, he stated that
a miner must always follow the orders of his supervisor
and that he "has the opportunity to quit if he feels he
has been in danger." (Tr. 79). Although it is well
within Mr. Helmericks' right to demand that employees
strictly comply with his orders at the pit, he cannot
make such demands if a miner raises legitimate safety
concerns. While Mr. Helmericks may believe that he
should have that right, the Mine Act provides
otherwise.
The testimony of Inspector Williams also supports a
finding that employees had been required to dig at the toe
of the highwall. He stated that, although he did not
observe anyone digging at the toe, he believes that
miners were cutting into the toe of the highwall at one
location. (Tr. 213-14). He reached this conclusion
based on the shape of the wall. Mr. Baier told him he
had been digging at the toe. (Tr. 215).
On the other hand, Mr. Helmericks' testimony is supported
by the testimony of Jim, Jr., and to a lesser extent, the
testimony of Inspector Williams and the photographs.
Mr. Williams and the photographs indicate that there
was a considerable amount of loose, easily available
material at the pit. (Tr. 217-18; Exs. J-1, R-8). It
is not controverted that the crusher was old and slow
and could not process much material at any one time.
Thus, this evidence would indicate that it was not
necessary for anyone to dig into the toe to get
material for the crusher.
Based on my review of the record, I find that miners were
cutting into the toe to obtain material for the crusher
in the weeks prior to Mr. Baier's termination. I also
find that even if Mr. Helmericks did not directly order
his employees to obtain material from the toe, he was
aware of their actions and did not stop them. The
record makes clear that the material at the pit was not
all the same and that it was not uncommon to mix loose
rock with other material, such as clay- bearing
material or sandy material, to obtain feed for the
crusher to meet customer specifications. (Tr. 276-78).
With respect to the events that took place on August 1,
1996, I find Mr. Helmericks' testimony to be more
credible. After observing Helmericks' conduct during
the course of this hearing, I do not believe that he
would have fired Mr. Baier in the manner described in
Baier's testimony. Instead, Helmericks would have
fired Baier at the time he observed Baier using the
loader on the highwall. He would not have waited two
or three days. Mr. Helmericks is a volatile individual
with strong beliefs as to how a pit should be operated.
He prides himself on running a tight ship. If he
observed Baier using the loader to push material off
the highwall, after warning him not to do so, he would
not wait three days to take action. Accordingly, I
find that it is highly likely that Mr. Baier was using
the loader to push material down from the highwall on
August 1. The issue of whether Mr. Helmericks had
ordered Baier to help Jim, Jr., repair the crusher is
discussed in more detail below.
I find that Baier's refusal to dig into the toe of the
highwall was protected activity, but that his decision
to push material from the top of the highwall was not
protected. Baier had the legal right under the Mine
Act to refuse to perform an unsafe act, but he did not
have the right to take a loader to the top of the
highwall to obtain material. A miner cannot refuse to
work because of a difference of opinion over the proper
way to perform a particular task if the refusal is not
safety related. Sammons v. Mine Service Co., 6 FMSHRC
1391, 1398 (June 1984). Mr. Helmericks, as the
owner/operator of the J&J Pit, has the right to direct
his workforce and decide who is going to do what job.
Helmericks decided that he would be the only individual
who would push material off the highwall and that he
would use a bulldozer. He apparently communicated this
information to Baier prior to the incidents that gave
rise to this proceeding. Mr. Baier's refusal to follow
Helmericks' direction not to go up on the highwall with
the loader is not, by itself, protected under the Mine
Act.
B. Was Clay Baier's Termination Motivated in any Part by
the Protected Activity?
In determining whether a mine operator's adverse action
was motivated by the miner's protected activity, the judge
must bear in mind that "direct evidence of motivation
is rarely encountered; more typically, the only
available evidence is indirect." Secretary of Labor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510 (November 1981), rev'd on other grounds, 709 F.2d
86 (D.C. Cir 1983). "Intent is subjective and in many
cases the discrimination can be proven only by the use
of circumstantial evidence." Id. (citation omitted).
Based on the evidence presented at the hearing, I find
that Clay Baier's termination was motivated at least in
part by his protected activity.
A mine operator's knowledge of the protected activity is
one factor to evaluate when determining whether an adverse
action was motivated by protected activity. Mr.
Helmericks knew that Clay Baier had discussed safety
issues with MSHA inspectors and that the inspectors had
advised Mr. Baier not to cut into the highwall with the
loader. Mr. Helmericks also knew that when Mr. Baier
went to the top of the highwall to push material over
the edge of the highwall, he did so on the advice of
Inspector Williams. Baier put Helmericks on notice
that he did not believe that it was safe to dig at the
toe of the highwall.
Another factor is the mine operator's hostility towards
the protected activity, often referred to as "animus." It
is clear that Mr. Helmericks was extremely hostile
towards MSHA in general, as well as Mr. Baier's
conversation with Inspector Williams about safety
issues at the mine. Mr. Helmericks contends that the
inspectors should not have talked with Baier but should
have talked only with Jim, Jr. Mr. Helmericks
considered Mr. Williams' advice to Mr. Baier to be a
direct threat to his supervisory authority. Helmericks
did not approve of Baier's discussion of safety issues
with MSHA. Helmericks also demonstrated animus towards
Baier's actions in response to Mr. Williams' advice.
Finally, the termination of Mr. Baier occurred shortly
after the July 1996 MSHA inspection. The termination also
occurred immediately after Helmericks observed Baier
pushing material off the highwall. While this activity
was not protected, as discussed above, it was related
to the safety concerns Baier raised with Inspector
Williams. This proximity in time is another factor
that indicates that the termination was motivated in
part by the protected activity.
Based on the above, I find that the Secretary established
a prima facie case that Mr. Baier engaged in protected
activity and that his termination from employment was
motivated at least in part by that activity.
C. Durango Gravel's Case
As stated above, a mine operator may rebut the Secretary's
prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part
motivated by the protected activity. I find that Durango
Gravel did not rebut the Secretary's case in this manner.
The preponderance of the evidence presented at the hearing
shows that Mr. Baier engaged in protected activity and that
his termination was motivated, at least in part, by that
activity. I find that Mr. Helmericks decided to terminate
Mr. Baier, in part, because Baier had discussed safety
issues with Inspector Williams in July 1996. The record
shows that Helmericks resented the fact that Baier raised
these issues with the inspector.
The evidence concerning Baier's alleged work refusal merits
further analysis. When evaluating a miner's allegation that
he refused to perform work because he reasonably and good
faith believed that the work was not safe, a judge must
consider whether the miner communicated his concerns to the
mine operator. "When reasonably possible, a miner refusing
to work should ordinarily communicate or at least attempt to
communicate, to some representative of the operator, his
belief in the safety or health hazard at issue." Secretary
of Labor on behalf of Dunmire and Estle v. Northern Coal
Co., 4 FMSHRC 126, 133 (February 1982). I find that Baier
attempted to communicate his concerns about digging into the
highwall to Mr. Helmericks. Whether Helmericks fully
understood that Baier traveled to the top of the highwall
because of his own personal safety concerns is not entirely
clear. Nevertheless, I find that Helmericks understood that
Baier would not dig into the highwall because of his safety
concerns.
Another consideration is whether, after he learned of
Baier's concerns, Helmericks took steps to address the
perceived danger. A mine operator has an obligation to
explain why the work area is safe or explain that any
problems have been corrected. To put it another way, a
miner's work refusal is not protected if the operator
addresses his safety concerns "in a way that his fears
reasonably should have been quelled." Gilbert, 866 F.2d at
1441.
Mr. Helmericks' testimony concerning his prior discussions
with Baier about going up on the highwall center around
issues of authority. Helmericks testified that Baier told
him that he pushed down material from the top of the
highwall because Inspector Williams told him to do so to get
material for the crusher. (Tr. 274-75). Helmericks
testified that Baier was "a little mixed up about who really
had authority to give directives at the pit." (Tr. 275).
Although Helmericks recognized that Inspector Williams "was
responsible for pointing out safety issues," he told Baier
that the inspector had no authority to tell Baier to go up
on the highwall. Id. When Baier repeated what the
inspector had told him, Helmericks replied that "you are not
going to do it [Inspector Williams' way] because it is
unsafe and I told you not to do it." Id.
The credible evidence in the record demonstrates that Mr.
Helmericks did not attempt to explain that he and Inspector
Williams were in agreement that miners should not dig into
the toe of the highwall. Helmericks could have easily
attempted to allay Baier's fears by explaining that he
should not dig into the toe of the highwall and that if more
material was needed to feed the crusher he should wait until
Helmericks was able to push material down from the highwall
using the bulldozer. As stated above, the protected
activity was Baier's refusal to dig into the toe of the
highwall, not his actions in pushing down material from the
top with a loader. Even though there was some loose
material around the pit, Baier still reasonably believed
that he was required to dig into the highwall to get
material.[1] Helmericks did not allay his fears by
explaining to Baier that he would no longer be required to
do that. Instead, he treated Baier's actions as a threat to
his supervisory authority.
Thus, Helmericks was angry that Baier continued to follow
the inspector's advice, but Helmericks did not attempt to
tell Baier why the hazard did not exist or how it would be
eliminated. I find that the evidence demonstrates that the
actions Baier took in response to his safety concerns were a
factor in Mr. Helmericks decision to terminate Mr. Baier.
If the mine operator cannot directly rebut the Secretary's
case, it nevertheless may defend by proving that it was also
motivated by the miner's unprotected activity and would have
taken the adverse action for the unprotected activity alone.
This issue requires further analysis.
The Commission described this defense in Pasula, as follows.
The employer may affirmatively defend ... by
proving by a preponderance of all the
evidence that, although part of his motive
was unlawful, (1) he was also motivated by
the miner's unprotected activities, and (2)
that he would have taken adverse action
against the miner in any event for the
unprotected activities alone.... It is not
sufficient for the employer to show that the
miner deserved to have been fired for
engaging in unprotected activity; if the
unprotected conduct did not originally
concern the employer enough to have resulted
in the same adverse action, we will not
consider it. The employer must show that he
did in fact consider the employee deserving
discipline for engaging in the unprotected
activity alone and that he would have
disciplined him in any event.
2 FMSHRC at 2799-800 (emphasis in original). In Bradley v. Belva
Coal Co., the Commission further refined this analysis, as
follows:
Ordinarily, an operator can attempt to
demonstrate [that it would have terminated
the miner for the unprotected activity alone]
by showing, for example, past discipline
consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory
past work record, prior warnings to the
miner, or personnel rules or practices
forbidding the conduct in question. Our
function is not to pass on the wisdom or
fairness of such asserted business
justifications, but rather only to determine
whether they are credible and, if so, whether
they would have motivated the particular
operator as claimed.
4 FMSHRC 982, 993 (June 1982). See also Chacon, 3 FMSHRC at
2516-17.
Durango Gravel bears the burden of proof on this issue.
Mr. Helmericks proceeded in this case without the benefit of
counsel. Accordingly, I granted Durango Gravel wide latitude in
presenting evidence at the hearing and attempted to provide as
much guidance to Mr. Helmericks as I reasonably could about the
legal issues involved and the evidence he would need to present
to defend against a discrimination complaint. For the reasons
set forth below, I find that he did not establish that he would
have terminated Mr. Baier for his unprotected activities alone.
As stated above, Mr. Baier's actions in taking it upon
himself to push material down from the top of the highwall with a
loader were not protected. Mr. Helmericks was also motivated to
terminate Mr. Baier because of this unprotected activity. I find
that Mr. Helmericks did not establish that he would have
terminated Baier for these actions alone. For purposes of this
discussion, I assume that the events that took place on August 1,
1996, were as Mr. Helmericks described. That is, Helmericks
terminated Baier after he returned from Farmington and observed
Baier pushing material from the top of the highwall rather than
repairing the crusher as he had instructed.
I find that Baier's actions were directly related to his
refusal to dig into the highwall. The only reason presented in
the record for Baier's decision to push material off the highwall
was to avoid having to dig into the highwall. He took these
actions because of advice he received from Inspector Williams.
Although this "self-help" measure was not protected, it arose out
of Baier's safety concerns and, as discussed above, Helmericks
did little to attempt to allay Baier's fear that he could be
seriously injured while working under the highwall. Thus, if
Baier were terminated solely for being up on the highwall, the
termination was too closely related to his protected work
refusal, given that Mr. Helmericks did not reasonably allay his
fears, to conclude that such a termination was for his
unprotected activity alone.
More importantly, I believe that the evidence establishes
that Helmericks' animosity towards MSHA played a significant role
in his decision. If Baier had not raised safety issues with MSHA
during their July inspection and Williams had not provided
guidance to Baier concerning how to safely mine the highwall, it
is unlikely that Helmericks would have terminated Baier for being
up on the highwall on August 1. It is more likely that
Helmericks would simply have chewed him out. As stated above,
Helmericks saw Baier's actions in conjunction with Inspector
Williams' July inspection as a direct threat to his supervisory
authority. Durango Gravel did not establish that it would have
terminated Baier for being on top of the highwall on August 1 if
his activities did not spring from his safety complaints to MSHA.
At the hearing, Durango Gravel presented evidence that it
terminated Mr. Baier for a number of other reasons related to his
work performance. For example, Mr. Helmericks testified that
Baier was an unsafe equipment operator. Helmericks pointed to
the fact that Baier damaged a loader when he backed into the
stacker. (Tr. 27, 267). This accident occurred about 10 days
prior to his termination. (Tr. 312). There is conflicting
testimony as to whether Helmericks was concerned about the
accident at the time. The evidence establishes that there was no
left side mirror on the loader at the time of the accident.
(Tr.28). Mr. Helmericks also stated that Baier damaged his
welding trailer with the loader on another occasion. Mr.
Helmericks did not terminate Baier at the time of either of these
accidents.
Mr. Helmericks also testified that Baier did not respect his
authority or his property at the pit. Helmericks referred to a
number of instances in which Baier was openly disrespectful
towards him and caused damage to his property. For example, on
one occasion Baier taunted Helmericks in front of Sharon
Helmericks, his wife, by stating that she was cute and would
leave him someday. (Tr. 160-62, 246-47). Helmericks referred
to a number of instances where Baier caused damage to property,
such as when his dog wrecked a welder while chasing a chipmunk.
(Tr. 134-35). Helmericks testified that he had previously warned
Baier not to bring his dog to the pit. Until Baier raised safety
concerns following MSHA's inspection, however, none of the
alleged insubordinate and disrespectful actions Helmericks refers
to caused him to terminate Baier's employment with Durango
Gravel.
Durango Gravel spent a significant time at the hearing
attempting to discredit the testimony of Mr. Baier and his
witnesses. Much of this effort was devoted to calling Baier and
his witnesses liars and criminals. Name-calling does not
establish the truth of the allegation. Throughout this
proceeding, Mr. Helmericks sought to introduce evidence of
Baier's alleged criminal activity. In evaluating this issue, I
relied upon Rule 609 of the Federal Rules of Evidence. That rule
provides that evidence that a witness was convicted of a crime
shall be admitted if the crime was punishable by imprisonment in
excess of one year, if the crime involved dishonesty or false
statement, or if the court determines that the probative value of
admitting the evidence outweighs its prejudicial effect. Baier
admitted that he was convicted of a misdemeanor charge in Arizona
in 1986 or 1987. (Tr. 454). He paid a monetary penalty but was
not incarcerated. I find that this conviction does not relate to
Baier's veracity at the hearing.[2]
Mr. Helmericks also maintains that Baier stole tools owned
by him. The record reveals that the tools were in the trunk of
Baier's car on the day he was terminated. They had been put in
his car by Jim, Jr., because he often car pooled to work with
Baier. Jim, Jr., forgot that they were in the car on the day of
Baier's termination. Baier sought to keep the tools until
Helmericks paid him the wages he believed he was owed for his
last week and one-half of work. I find that Baier did not steal
Helmericks' tools and his action in using the tools as leverage
to get his final pay check does not show that his testimony is
not credible.
Helmericks also attempted to show that Baier's testimony was
not credible because of discrepancies in his time cards. Each
employee was responsible for reporting the number of hours he
worked every day to Mr. Helmericks. After Baier was terminated,
Helmericks discovered that Baier reported more hours worked than
Jim, Jr., on days that they car pooled to work. It must be noted
that Helmericks did not discover this fact until after Baier was
terminated and it could not have been a reason for his
termination. Such false reporting of time can be the basis for
the termination of an employee and does bear on a witness's
credibility. I have taken Mr. Helmericks' testimony into
consideration in assessing credibility in this case.
Finally, Mr. Helmericks also contends that the testimony of
Baier and his witnesses contained numerous conflicts and
contradictions. I have reviewed their testimony and cannot find
any significant contradictions. Mr. Baier's testimony is also
reasonably consistent with his interview with the MSHA special
investigator taken on August 26, 1996. More importantly, for
purposes of analyzing whether Durango Gravel would have
terminated Baier for his unprotected conduct alone, I accepted
Mr. Helmericks description of the essential facts that transpired
in the week before Baier's termination.
In conclusion, I find that the Secretary established a prima
facie case of discrimination and Durango Gravel did not rebut the
Secretary's case by showing that it did not fire Baier for his
protected activity or showing that it would have terminated for
his unprotected activity alone. The Secretary seeks the
following remedy: (1) Mr. Baier's pay for the week and three
days that he worked for Durango Gravel but was not paid, that is,
any time he worked July 21 through July 31, 1996; (2) two weeks
of back pay; and (3) a civil penalty of $2,500. Durango Gravel
contends that it does not owe Mr. Baier any back pay because he
caused extensive damage to equipment at the pit. It seeks to
offset any back pay award with the cost of repairing damaged
equipment. As stated above, Durango Gravel did not establish
that it would have terminated Baier for damaging equipment at the
mine. The evidence shows that Baier damaged the door of the
loader when he struck the stacker, but that it was accidental.
Mr. Helmericks did not require Baier to pay for the damage at the
time of the accident. Durango Gravel did not repair the damage
until the week before the trial in this case. Accordingly, I
hold that Durango Gravel is not entitled to withhold the cost of
repairing equipment from any back pay award under the Mine Act.
III. ORDER
Counsel for the Secretary is ordered to file a brief, on or
before, February 16, 1998, setting forth the amount of back pay
she contends Durango Gravel owes Mr. Baier. The brief shall
include any supporting documentation. The brief shall show the
calculations the Secretary used to arrive at a the proposed back
pay award. For the period prior to Baier's termination, the
brief shall show the hours of work on a daily basis. The
Secretary's brief shall also address each of the criteria under
section 110(i) of the Mine Act and cite evidence in the record to
support her proposed penalty in this case.
Durango Gravel shall have ten days after it receives the
Secretary's brief to file a response. In the response, Durango
Gravel shall cite evidence to refute the Secretary's calculation
of back pay and civil penalty. This decision is not final until
I enter a final order awarding a specific amount of back pay and
assess an appropriate civil penalty.
Richard W. Manning
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
Mr. Jim Helmericks, Durango Gravel, 995 Highway 3, Durango, CO 81301
RWM
**FOOTNOTES**
[1]: It was also reasonable for Baier to be concerned about
digging into loose material that was immediately adjacent to the
base of the highwall. Removing such material may weaken a
highwall, especially if the material has been present for a
considerable length of time. In addition, a loader operator
could inadvertently cut into the highwall while trying to remove
such material.
[2]: At the hearing and in its brief, Durango Gravel raised
issues as to the honesty and integrity of Kristi Floyd, counsel
for the Secretary. Mr. Helmericks believes that Ms. Floyd
participated in a conspiracy to withhold information about Mr.
Baier's criminal activity and dishonest actions. (Tr. 350-52,
453-54). He stated that he intends to take steps to have her
disbarred. In his brief, Mr. Helmericks referred to Ms. Floyd as
a "bully." (D.Gr. Br. 6). During discovery, Mr. Helmericks
sought information from the Secretary about Baier's criminal
record and employment history. After reviewing the record, I
find that there is no evidence that Ms. Floyd engaged in any
unethical conduct in this case or that she attempted to withhold
evidence or information from Mr. Helmericks.
As to the criminal record, Ms. Floyd represented in answers
to discovery that Baier did not have a felony conviction. In a
supplemental response, Ms. Floyd stated that Baier had never been
in prison and did not have a criminal record. At the hearing,
Ms. Floyd represented that she had no knowledge of the
misdemeanor conviction until the day before the hearing. Once
she learned about it, she provided such information to the judge.
When Mr. Helmericks continued to raise questions about it, she
voluntarily revealed it in open court. I determined that
information about this conviction would not be admissible under
Rule 609.
The record reveals that Baier was employed by a large number
of companies prior to his employment by Durango Gravel. Baier
worked for some of these employers for only a few weeks. In her
response to interrogatories and her supplemental response, Ms.
Floyd provided a list of his prior employers. At the hearing,
Baier revealed that he worked for a few employers that were not
provided on Ms. Floyd's lists. He stated that he had forgotten
about them. I credit his testimony in this regard.