<DOC>
[DOCID: f:wv3-99121.wais]
CHICOPEE COAL COMPANY, INC.
November 24, 1999
WEVA 99-121-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
November 24, 1999
SECRETARY OF LABOR, MSHA : DISCRIMINATION PROCEEDING
on behalf of :
LEWIS FRANK BATES, : Docket No. WEVA 99-121-D
Complainant :
v. : HOPE CD 99-12
:
CHICOPEE COAL COMPANY, INC., : Lilly Branch Surface Mine
Respondent : Mine ID 46-08723
:
SECRETARY OF LABOR, MSHA : DISCRIMINATION PROCEEDING
on behalf of :
EARL CHARLES ALBU, : Docket No. WEVA 99-122-D
Complainant :
v. : HOPE CD 99-12
:
CHICOPEE COAL COMPANY, INC., : Lilly Branch Surface Mine
Respondent : Mine ID 46-08723
DECISION
Appearances: Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Complainants;
Forest H. Roles, Esq., Mark E. Heath, Esq.,
Heenan, Althen & Roles, Charleston, West Virginia,
for the Respondent.
Before: Judge Feldman
The hearing in the temporary reinstatement cases in these
matters was conducted on June 2, 1999. At the temporary
reinstatement proceeding, the parties advised that they had
reached a settlement agreement with respect to the temporary
reinstatement of Lewis Frank Bates. Specifically, the
respondent, Chicopee Coal Company, Inc., (Chicopee), agreed
to economically reinstate Bates by reinstating Bates' medical
benefits, and paying Bates the weekly salary he was earning
immediately prior to his alleged January 25, 1999,
discriminatory discharge. A hearing on the merits was
conducted with respect to the temporary reinstatement
application of Earl Charles Albu, a/k/a Chuck Albu.
The scope of a temporary reinstatement proceeding was
governed by the provisions of section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977 (the Act), 30 U.S.C.
� 815(c)(2), and Commission Rule 44(c), 29 C.F.R. � 2700.44(c),
that limited the issue to whether the subject discrimination
complaints were "frivolously brought." The rationale for the
frivolously brought standard in temporary reinstatement was
addressed by the Court of Appeals, in Jim Walter Resources v.
FMSHRC, 920 F.2d 738 (11th Cir. 1990). The Court stated:
. . . Congress, in enacting the `not frivolously
brought' standard, clearly intended that employers
should bear a proportionately greater burden of the
risk of an erroneous decision in a temporary
reinstatement proceeding. Any material loss from a
mistaken decision to temporarily reinstate a worker is
slight; the employer continues to retain the services
of the miner pending a final decision on the merits.
Also, the erroneous deprivation of an employer's right
to control the makeup of his work force under section
105(c) is only a temporary one that can be rectified by
the Secretary's decision not to bring a formal
complaint or a decision on the merits in the employer's
favor. 920 F.2d at 748, n.11. (emphasis in original).
Applying this lesser burden of proof, the initial
decision ordered Chicopee to temporarily reinstate Albu to
the position that he held immediately prior to his
January 26, 1999, discharge, or to a similar position, at
the same rate of pay and benefits and with the same, or
equivalent, duties assigned to him. 21 FMSHRC 673, 680
(June 1999). The Commission, intimating no view on the
ultimate merits of Albu's underlying discrimination
complaint, affirmed the initial decision to reinstate
Albu. 21 FMSHRC 717 (July 1999).
The hearing in these discrimination complaints that
gave rise to the temporary reinstatement proceedings was
convened on November 2, 1999, in Charleston, West Virginia.
The scrutiny applicable to a trial on the merits of
the underlying discrimination complaint s entirely different
from the minimal "frivolously brought" statutory standard of
proof in temporary reinstatement matters. Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987). In order to prevail, a
complainant has the burden of proving a prima facie case
of discrimination under section 105(c) of the Mine Act. In
order to establish a prima facie case, a complainant must
demonstrate that he participated in safety related activity
protected by the Act, and, that the adverse action complained
of was motivated, in some part, by that protected activity.
See Secretary on behalf of David 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
Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (April 1981).
A mine operator may rebut a prima facie case by
demonstrating, either that no protected activity occurred,
or, that the adverse action was not motivated in any
part by protected activity. Robinette, 3 FMSHRC at 818
n.20. An operator may also affirmatively defend against a
prima facie case by establishing that it was also
motivated by unprotected activity and that it would have
taken the adverse action for the unprotected activity alone.
See also Jim Walter Resources, 920 F.2d at 750, citing with
approval Eastern Associated 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).
The gravamen of the Bates and Albu discrimination
complaints is that they were terminated immediately after
they expressed safety related concerns at a January 25,
1999, safety meeting. The complaints concerned the
qualifications of Vecellio and Grogan personnel who had
recently been designated by Chicopee to supervise certain
mining operations. Vecellio and Grogan is a company
specializing in road building and mining in the State of
West Virginia. In addition to being Chicopee's subcontractor,
Vecellio and Grogan also has provided substantial financial
resources to support Chicopee's continuing operations.
The evidence appears to support a prima facie case
of discriminatory conduct given the brief period of time
that elapsed between the protected safety complaints and the
Bates and Albu terminations. 21 FMSHRC at 718. However,
Bates' and Albu's apparent disinclination to work with Vecellio
and Grogan may have provided Chicopee with an independent
business justification for their terminations that could
constitute a defense to these discrimination complaints.
For example, there was testimony at the temporary
reinstatement proceeding concerning threats that Albu had
made against Vecellio and Grogan's superintendent, Dale
McGrady. 21 FMSHRC at 676. McGrady had recently been
designated by Chicopee to oversee road construction
activities, responsibilities that were previously assigned
to Bates. This change in Bates' assigned duties caused Bates
to convene the January 25, 1999, safety meeting to "warn"
his fellow employees that he was no longer responsible for
ensuring the safety of the roadways. Id. at 677. At the
safety meeting Albu complained about Vecellio's equipment,
characterizing the equipment as "junk." Id. In short,
the evidence reflects that the conduct of Bates and Albu may
have been detrimental to Chicopee's ongoing relationship
with Vecellio and Grogan, a company that Chicopee relied
on for financial support.
At the hearing, the parties advised that they had
agreed to settle these discrimination cases. The terms
of the parties' settlement were presented and approved
on the record. The settlement terms were committed to
writing in the Secretary's Motions to Approve Settlement
filed on November 15, 1999.
With respect to Bates, in lieu of temporary
reinstatement, Chicopee previously has agreed to economically
reinstate Bates effective May 26, 1999, pending the outcome
of his discrimination complaint. Chicopee now has agreed
to pay Bates a lump sum payment as consideration for Bates'
withdrawal of his complaint. Chicopee also has agreed
to provide Bates with a letter for prospective employers
specifying Bates' dates of employment and reflecting that
Bates was terminated due to a reduction in work force.
Chicopee will provide employment references that are
consistent with the terms of this settlement and all
references to this discrimination matter shall be expunged
from Bates' personnel records. Finally, Chicopee has
agreed to allow Bates to retain medical coverage for his
wife at Bates' expense until Bates finds new employment,
or until Chicopee is no longer permitted by law to cover
Ms. Bates on their company medical insurance policy.
Albu was reinstated effective June 30, 1999, pursuant
to the initial decision granting the Secretary's application
for Albu's temporary reinstatement. 21 FMSHRC at 680.
Chicopee now has agreed to pay Albu a lump sum payment as
consideration for Albu's withdrawal of his complaint.
Chicopee also has agreed to provide Albu with a letter for
prospective employers specifying Albu's dates of employment
and reflecting that Albu was terminated due to a reduction
in work force. Chicopee will provide employment references
that are consistent with the terms of this settlement and
all references to this discrimination matter shall
be expunged from Albu's personnel records.[1]
ORDER
This decision formalizes the approva of the parties'
settlement agreements that were previously approved on the
record. Consistent with their agreement Ms. Bates medical
insurance coverage shall continue without interruption.
IT IS ORDERED that Chicopee Coal Company immediately
provide Bates and Albu with written references for employment
and that Chicopee Coal Company immediately expunge all
references to these temporary reinstatement and
discrimination matters from the personnel records of
Bates and Albu.
IT IS FURTHER ORDERED that Chicopee Coal Company tender
to Bates and Albu the agreed upon lump sum payments no
later than thirty (30) days from the date of this decision.
Upon timely compliance with the terms of the settlement
agreements, the discrimination proceedings in Docket Nos.
WEVA 99-121-D and WEVA 99-122-D ARE DISMISSED.
Jerold Feldman
Administrative Law Judge
**FOOTNOTES**
[1] As part of their settlement, Chicopee has agreed to
pay a civil penalty of $300.00 in satisfaction of Albu's
alleged discriminatory discharge. Pursuant to Commission
Rule 44(b), 29 C.F.R. � 2700.44(b), to impose this $300.00
penalty, the Secretary must file with this Commission,
within 45 days, a pertinent petition for assessment of
civil penalty.
Distribution:
Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Room 516,
Arlington, VA 22203 (Certified Mail)
Forrest H. Roles, Esq., Mark E. Heath, Esq., Heenan,
Althen & Roles, P.O. Box 2549, Charleston, WV 25329-2549
(Certified Mail)
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