.
READING ANTHRACITE COMPANY
March 16, 2000
PENN 99-129-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 16, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of :
LEONARD BERNARDYN :
:
v. : Docket Nos. PENN 99-129-D
: PENN 99-158-D
READING ANTHRACITE COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
In this discrimination proceeding, Administrative Law Judge
Avram Weisberger concluded that Reading Anthracite Company
("Reading") did not violate section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 815(c) (1994) ("Mine
Act" or "Act"), when it discharged employee Leonard Bernardyn on
November 10, 1998. 21 FMSHRC 819, 824 (July 1999) (ALJ). The
Commission granted the Secretary's petition for discretionary
review challenging the judge's determination. For the reasons
that follow, we vacate the judge's determination and remand for
further analysis.
I.
Factual and Procedural Background
Reading owns and operates Pit 33, a coal mine in Wadesville,
Pennsylvania. T. Tr. 10.[1] Bernardyn worked for Reading for
nineteen years, including working as a haulage truck driver at
the Wadesville mine for approximately four and a half to five
years before his discharge. T. Tr. 10-11.
Between 7:00 and 7:10 a.m. on November 10, 1998, Bernardyn
began driving his haulage truck - a 190-ton Titan truck - on his
usual route between the shovel in the pit and the dump area. T.
Tr. 11-12, 15-16, 83. Overall, the road has a grade of
approximately 8%, and parts of it are as steep as 10.3%. T. Tr.
82, 107. When Bernardyn began driving, the weather was foggy and
misty, and slippery road conditions caused Bernardyn to drive
slower than usual. T. Tr. 15-18, 47-48, 114.
When Frank Derrick, the general manager of Reading, observed
a Titan truck driving slowly, he called mine superintendent
Stanley Wapinski to find out why. T. Tr. 83. Wapinski stopped
Bernardyn and asked him why he was driving so slowly, to which
Bernardyn responded the roads were getting slippery. T. Tr. 20-
21. Wapinski told Bernardyn to drive faster. T. Tr. 20-21, 140-
42. Approximately 20 minutes later, Derrick again noticed a
Titan truck driving slowly and asked Wapinski whether it was the
same truck. T. Tr. 84-85, 143-44. When Wapinski indicated that
the truck was the same one and that Bernardyn was the driver,
Derrick told him to tell Bernardyn to park the truck. T. Tr. 86.
Wapinski approached and talked with Bernardyn at the pit and told
him he was holding things up, and directed him to meet Wapinski
at the dump after his current run. T. Tr. 24-25, 143-44.
After the second conversation with Wapinski, Bernardyn used
the CB radio in his truck to call Thomas Dodds, the United Mine
Workers of America ("UMWA") safety committeeman. T. Tr. 29-30,
53. Dodds was driving a truck on the same shift as Bernardyn.
T. Tr. 45-46. Bernardyn told Dodds he was being asked to drive
at a higher speed than he believed was safe given the poor road
conditions. T. Tr. 29-31, 53-54. During his 8-10 minute
complaint to Dodds, Bernardyn repeatedly cursed and, referring to
Wapinski, said "I'll get the little f----r." 21 FMSHRC at 823;
T. Tr. 31-32, 54, 63, 88-91, 134-35; M. Tr. 71. Derrick
overheard Bernardyn's complaints and profanity on the CB radio
and fired him after he had dumped the load in his truck,
assertedly for profanity and threatening a supervisor over the
CB radio. T. Tr. 87-91, 95-96, 145; M. Tr. 65-66.[2]
On November 12, Bernardyn filed a discrimination complaint
with MSHA alleging that he was discharged unlawfully. The
Secretary's application for temporary reinstatement was granted,
and Bernardyn was ordered temporarily reinstated to his former
position on March 22, 1999. 21 FMSHRC 339, 342 (Mar. 1999)
(ALJ).
On the merits of the complaint, the judge found that
Bernardyn engaged in protected activity when he drove at a speed
he felt the road conditions warranted, that Reading's discharge
of Bernardyn constituted adverse action, and that, based on the
coincidence in time between Derrick's order to Wapinski to stop
Bernardyn twice for driving too slowly, and Derrick's discharge
of Bernardyn, the Secretary established a prima facie case of
discrimination. 21 FMSHRC at 822. However, the judge determined
that Reading would have fired Bernardyn in any event for the 8-10
minute cursing episode over the CB radio and his threatening
language directed towards Wapinski. Id. at 823.[3]
II.
Disposition
The Secretary asserts that the judge failed to evaluate
whether Bernardyn's protected activity and his profanity were
inextricably intertwined such that the profanity cannot be
isolated as an independent and legitimate reason for the
discharge. PDR at 8-14.[4] The Secretary also maintains that
Bernardyn's impulsive and vague statement to a safety officer
does not constitute a threat against his supervisor. Id. at 14-
17. Finally, the Secretary submits that substantial evidence
does not support the judge's finding that Reading's discharge of
Bernardyn did not subject him to disparate treatment. Id. at
17-19.
Reading responds that the judge correctly found that Reading
established its affirmative defense, and that Bernardyn's
profanity was not inextricably linked to his protected activity.
R. Br. in Resp. to PDR at 4-9.[5] Reading further argues that
Bernardyn's statements threatened Wapinski. Id. at 5. Reading
also claims that the judge's finding that it did not subject
Bernardyn to disparate treatment is supported by substantial
evidence. Id. at 9-11.
A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 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 (Apr. 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.
See Robinette, 3 FMSHRC at 818 n.20. 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 for the unprotected activity alone. See id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-
Robinette test).
Reading does not directly dispute that the Secretary proved
a prima facie case of discrimination. However, the operator
suggests that nothing in the record indicates that Derrick knew
that Bernardyn drove slowly because of his concern regarding the
road conditions. R. Br. in Resp. to PDR at 7. Insofar as this
contention may be seen as calling the prima facie case into
question, we address the issue. The judge found that the
Secretary made out a prima facie case, but made no explicit
finding regarding Derrick's knowledge. 21 FMSHRC at 822. The
Commission has stated that "an operator may not escape
responsibility by pleading ignorance due to the division of
company personnel functions." Metric Constructors, Inc., 6
FMSHRC 226, 230 n.4 (Feb. 1984), quoted in Wiggins v. Eastern
Associated Coal Corp., 7 FMSHRC 1766, 1771 (Nov. 1985). Here,
Wapinski testified that Bernardyn, in response to Wapinski's
inquiry into why he was driving slowly, informed him that the
road was slippery. T. Tr. 141-42, 153-54. In any event, Derrick
understood that Bernardyn's conversation on the CB was with his
safety committeeman, and he admitted he heard Bernardyn say that
Wapinski "was forcing him to drive faster and he didn't feel that
he should." T. Tr. 88-89. To the extent Reading's argument is
viewed as a challenge to the judge's finding of a prima facie
case, we conclude the judge's finding is supported by substantial
evidence.[6] Accordingly, we affirm that finding.
Having found that Bernardyn established a prima facie case,
the judge nevertheless found that Reading successfully asserted
the affirmative defense that it would have fired Bernardyn
without regard to his protected activity because he swore over
the CB radio and used threatening language towards Wapinski. 21
FMSHRC at 823. As we explain further below, we find the judge's
analysis of Reading's affirmative defense problematic in several
respects. Furthermore, as discussed infra, at section II.B, we
find that the judge failed to address the possibly dispositive
issue of whether the conduct on which Reading purportedly based
its firing of Bernardyn was provoked and therefore protected.[7]
A. Reading's Affirmative Defense
We set forth the general principles for evaluating an
operator's affirmative defense within the Pasula-Robinette
framework in Bradley v. Belva Coal Co.:
[T]he operator must prove that it would
have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an
operator can attempt to demonstrate this 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 Secretary of Labor on behalf
of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833 (May 1997).
In Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6
FMSHRC 516, 521 (Mar. 1984), the general principles of Bradley
were tailored specifically to situations involving the use of
profanity. In Cooley, we looked to whether the operator had
prior difficulties with the complainant's profanity, whether the
operator had a policy prohibiting swearing, and the operator's
treatment of other miners who had cursed or used threats. Id.;
see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 532-33 (Apr.
1991) (applying the factors announced in Cooley).
We conclude that the judge failed to adequately analyze the
evidence relevant to the Cooley factors. First, we note that the
record does not contain any evidence of prior difficulties
Reading may have had with Bernardyn swearing. See Cooley, 6
FMSHRC at 521 (noting lack of evidence that the operator
considered complainant to have difficulties involving profanity).
Regarding Reading's disciplinary policies, we note that there was
a dispute at the hearing as to which disciplinary policy was in
effect at the time of Bernardyn's discharge: a 1987 policy which
provided that the offending miner would be discharged after
"complete exhaustion of disciplinary warnings and suspensions,"
or a 1998 policy providing that insubordination provided just
cause warranting immediate discharge. Gov't Ex. B; R. Ex. 2. We
also note that neither of the policies contained any written rule
specifically prohibiting cursing. Nor did the 1998 policy define
"insubordination."
The Secretary argued below that the 1987 policy was in
effect at the time of Bernardyn's discharge. S. Post Hearing Br.
at 8. Particularly, she pointed to one of Reading's own exhibits
- an August 4, 1998 letter from a Reading attorney to a UMWA
attorney which stated: "This letter confirms that the Company
will implement the attached Code of Conduct following the
conclusion of the current negotiations and ratification of the
new collective bargaining agreement." Id. (citing R. Ex. 2
(emphasis added)). Jay Berger, a UMWA district executive board
member who was involved in the 1998 collective bargaining
agreement negotiations, testified that the bargaining agreement
was not ratified until November 16, 1998 - a date which falls
after Bernardyn's discharge - and also testified that the 1987
policy was in effect at the time of Bernardyn's discharge. M.
Tr. 43, 45-46.
Reading contended below that the 1998 policy was in effect
at the time of Bernardyn's discharge. R. Post Hearing Br. at 6.
Berger testified that the disciplinary policy was "separate and
apart from the collective bargaining agreement."[8] M. Tr. 56.
Derrick testified that the UMWA's chief negotiator said that the
disciplinary policy was not a contractual issue, and also stated
that, when the UMWA negotiator signed a copy of the August 4,
1998 letter on August 11, 1998, the new disciplinary policy came
into effect. M. Tr. 75-77.
The judge did not address this dispute in his decision.
Determining which disciplinary policy was in effect on November
10 is a crucial factor to consider in deciding whether
Bernardyn's discharge subjected him to disparate treatment and,
more broadly, whether Reading established that it would have
terminated Bernardyn for his unprotected activity alone. The
record suggests that prior cursing incidents at Reading occurred
under the 1987 policy. Gov't Ex. C. Thus, if the 1987 policy
was in effect at the time of Bernardyn's discharge, the
circumstances surrounding Bernardyn's discharge could be compared
with prior cursing incidents in determining whether Reading
subjected Bernardyn to disparate treatment. See Schulte v. Lizza
Indus., Inc., 6 FMSHRC 8, 17 (Jan. 1984) (finding that the
operator's treatment of the complainant was consistent with its
treatment of other employees disciplined under the same
disciplinary policy). If, however, prior to Bernardyn's
discharge, insubordination had become grounds for immediate
discharge pursuant to the 1998 policy, previous incidents of
cursing at Reading become less easy to compare to Bernardyn's
case. In sum, the judge should have determined which
disciplinary policy was in effect in analyzing the disparate
treatment issue.
Regarding the judge's discussion of disparate treatment,
we note that the record contains several prior instances of
employees being disciplined for cursing at Reading, none of which
resulted in discharge. M. Tr. 27-31; Gov't Ex. C at 1-4. The
other cursing incidents also involved various failures to obey
work orders, including miners who left assigned work areas early,
arrived for work late, argued with foremen about job assignments,
ignored a supervisor giving work assignments, and refused to
perform a job out of classification as ordered. Gov't Ex. C; M.
Tr. 29. Thus, Reading had no established practice of
disciplining workers for cursing alone and in the absence of
accompanying insubordinate acts, or of treating cursing as a form
of insubordination. On remand, the judge needs to analyze
whether Reading established that it would have discharged
Bernardyn for his cursing episode alone even though it had never
before levied such a severe penalty on a cursing employee, and
had no established policy of discipline for cursing. Although
cursing is unprotected activity under the Mine Act, it is not
sufficient for an employer to show that a miner deserved to be
fired for unprotected conduct; rather, the employer "must show
that he did in fact consider the employee deserving of discipline
for engaging in the unprotected activity alone and that he would
have disciplined him in any event." Pasula, 2 FMSHRC at 2800
(emphasis in original).
While the record contains several prior instances of cursing
at Reading, none of which resulted in discharge, Bernardyn's
episode of cursing included what the judge characterized as a
threat against Wapinski. The Secretary claims here, as she did
below, that Bernardyn's words did not constitute a threat against
Wapinski. S. Post Hearing Br. at 8; PDR at 14-17. The judge
made contradictory findings on this question.[9] On the one
hand, he stated that, based on the Secretary's failure to rebut
Derrick's testimony regarding the specific words Bernardyn used
over the CB, it was "reasonable to draw an inference that he used
these words [`I'll get the little fucker'], but did not consider
them to constitute a threat." 21 FMSHRC at 823 & n.9.[10] On
the other hand, the judge held that Derrick terminated Bernardyn
because he "cursed and threatened his supervisor." Id. at 823
(emphasis added).
On remand, the judge must resolve this inconsistency.
Clearly, he concluded that Bernardyn did not intend to threaten
Wapinski. Id. at 823 n.9. The next question he must analyze is
the impact of Bernardyn's words, specifically, how Bernardyn's
words could constitute a threat when Wapinski, the person he
allegedly threatened, did not hear Bernardyn's supposedly
threatening language, and whether Wapinski perceived any threat
at all - let alone a threat of physical harm. In this
connection, we note that Reading does not dispute that
Bernardyn's allegedly threatening language was directed to his
safety committeeman over the CB radio, rather than to any
management official. T. Tr. 88-89. The judge must also consider
whether the general words Bernardyn used, which named no person
in particular, constituted a threat against Wapinski.[11]
B. Provocation
Even if the judge determines that Reading has established
the elements of its affirmative defense, the question remains
whether that defense must nevertheless fail because Bernardyn's
conduct was provoked. Although we have recognized that cursing
is opprobrious conduct unprotected by the Mine Act, Cooley, 6
FMSHRC at 520-21, and would find threats all the more
opprobrious, in many cases decided under the National Labor
Relations Act, 29 U.S.C. � 141 et seq. (1994) ("NLRA"),[12]
courts have recognized that an employer cannot provoke an
employee into an indiscretion and then rely on that indiscretion
as grounds for discipline.[13] In Trustees of Boston Univ. v.
NLRB, the First Circuit stated, "at least so long as the
employee's indiscretions are not major, it is immaterial that the
employee's misconduct would constitute a sufficient reason for
discharge if the actual reason for discharge is the employee's
participation in [protected] activity." 548 F.2d 391, 393 (1st
Cir. 1977). That court also indicated that employees are to be
given some leeway for impulsive behavior, and that "the leeway is
greater when the employee's behavior takes place in response to
the employer's wrongful provocation." Id. The Fourth Circuit
has recognized that "[t]he more extreme an employer's wrongful
provocation the greater would be the employee's justified sense
of indignation and the more likely its excessive expression."
NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965).
Whether an employee's indiscrete reaction upon being
provoked is excusable is a question that depends on the
particular facts and circumstances of each case. Interpreting
the NLRA, the Seventh Circuit stated that an "employee's right to
engage in concerted activity may permit some leeway for impulsive
behavior, which must be balanced against the employer's right to
maintain order and respect." NLRB v. Thor Power Tool Co., 351
F.2d 584, 587 (7th Cir. 1965).
In applying this test, some courts interpreting the anti-
discrimination provision of the NLRA have found that an
employee's egregious conduct was sufficient to strip the employee
of that Act's protection, thereby justifying the employee's
discharge. For example, in NLRB v. Louisiana Mfg. Co., the
Eighth Circuit denied reinstatement to a complainant who was
"openly abusive in his language [towards a supervisor] and
obviously insubordinate in his conduct." 374 F.2d 696, 706 (8th
Cir. 1967). In NLRB v. Soft Water Laundry, Inc., the Fifth
Circuit denied reinstatement to an employee who cursed at a
supervisor loudly and in the presence of other employees. 346
F.2d 930, 934-35 (5th Cir. 1965). And in Timpte, Inc. v. NLRB,
the Tenth Circuit found that the termination of an employee who
refused to stop using foul language and disparaging other
employees after being warned not to do so was not discriminatory.
590 F.2d 871, 873-74 (10th Cir. 1979).
Other courts, however, have found layoffs, based ostensibly
on vulgar employee outbursts to be improper where the employee's
conduct was provoked by unjustified employer action. For
instance, in Trustees of Boston University, the First Circuit
upheld an administrative law judge's excusing of an employee's
misconduct because it was stimulated by the employer's own
wrongful conduct. 548 F.2d at 392-93. In Coors Container Co. v.
NLRB, the Tenth Circuit held that the complaining employees'
unprotected behavior - cursing at employer-hired security guards
who attempted to prevent the employees from engaging in protected
activity - was excusable impulsive behavior which did not justify
discharge. 628 F.2d 1283, 1285, 1288 (10th Cir. 1980). In NLRB
v. Steinerfilm, Inc., the First Circuit upheld a decision of the
National Labor Relations Board ("NLRB") excusing a complainant's
offensive and abusive language which occurred during a
confrontation with a supervisor in reaction to the supervisor's
unjustified warning of the complainant. 669 F.2d 845, 852 (1st
Cir. 1982). And in M & B Headwear, the Fourth Circuit upheld the
reinstatement of a complainant who, after her discriminatory
layoff, threatened a supervisor and was rude to a vice-president,
because "the unjust and discriminatory treatment of [the
complainant] gave rise to the antagonistic environment in which
these remarks were made." 349 F.2d at 174.[14]
Here, the judge failed to make any findings regarding
whether Bernardyn's cursing and alleged threats were provoked by
Reading's response to his protected refusal to drive at a higher
speed. In this connection, we note that when Bernardyn explained
to Wapinski that he was driving slowly because the poor road
conditions warranted it, Wapinski responded by telling Bernardyn
to "get the thing moving and get going" or "pick it up when and
where you can." T. Tr. 20-21, 140-42. Had Bernardyn complied
with Wapinski's instruction to drive faster, it would have put
him in harm's way. But for Wapinski's reaction to Bernardyn's
protected refusal to drive faster, Bernardyn would not have had
any reason to make the complaint to Dodds during which he cursed
and made the allegedly threatening remark.
The question thus remains for the judge to determine on
remand whether Bernardyn's cursing (including the alleged threat)
was provoked by Reading's response to his protected refusal to
drive faster. The judge must also determine whether the
particular facts and circumstances of this case, when viewed in
their totality, place Bernardyn's conduct within the scope of the
"leeway" the courts grant employees whose "behavior takes place
in response to [an] employer's wrongful provocation."[15]
Trustees of Boston Univ., 548 F.2d at 393. If Bernardyn's
conduct was provoked and excusable, Reading's affirmative defense
must fail.
III.
Conclusion
For the foregoing reasons, we vacate the judge's dismissal
of Bernardyn's discrimination complaint and remand this matter
for further analysis consistent with this decision.
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
**FOOTNOTES**
[1] A hearing on Bernardyn's temporary reinstatement
application was held on March 16, 1999. Some witnesses testified
at the temporary reinstatement hearing; others testified at the
merits hearing on May 18, 1999. Citations to testimony from the
temporary reinstatement hearing are referred to as "T. Tr."
Citations to testimony from the merits hearing are referred to
as "M. Tr." The judge incorporated the transcript and exhibits
from the temporary reinstatement hearing into the record of the
instant merits proceeding. M. Tr. 9-10.
[2] Within 30 minutes after Bernardyn's termination, road
conditions worsened, including a layer of ice that had formed on
the road. T. Tr. 103-05. After a foreman's truck slid down the
haulage road, the road was shut down due to the slippery
conditions. T. Tr. 56-57, 103-04.
[3] The judge also "dissolved" his previously issued
temporary reinstatement order. 21 FMSHRC at 824. The
Commission, finding that the express language of Mine Act section
105(c)(2), 30 U.S.C. � 815(c)(2), requires that a temporary
reinstatement order remain in effect until the decision on the
merits becomes a final Commission decision pursuant to section
113(d)(1), 30 U.S.C. � 823 (d)(1), vacated the judge's
dissolution of the temporary reinstatement order. 21 FMSHRC 947,
949, 951 (Sept. 1999).
[4] Pursuant to Commission Procedural Rule 75(a)(1), 29
C.F.R. � 2700.75(a)(1), the Secretary designated her PDR as her
brief.
[5] Reading designated its brief in response to the PDR as
its brief.
[6] When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C.
� 823(d)(2)(A)(ii)(I). "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[7] We view this case as presenting the issue of
provocation. The Secretary's alternative argument that
Bernardyn's protected activity and his swearing were inextricably
intertwined does not fit the facts of this case, and we therefore
decline to apply that mode of analysis in this particular
context.
[8] The operator did not directly address the Secretary's
argument that the implementation of the 1998 disciplinary policy
was subject to ratification of the bargaining agreement.
[9] Our dissenting colleagues conclude that "a reasonable
person would not have considered Bernardyn's words to constitute
a threat." Slip op. at 15. Commission precedent, however, is
clear on this point: it is not within our power to reweigh the
evidence in this case or to enter de novo findings of fact based
on an independent evaluation of the record - which is precisely
what our colleagues do. Island Creek Coal Co., 15 FMSHRC 339,
347 (Mar. 1993); see also Wellmore Coal Corp., No. 97-1280, 1997
WL 794132, at *3 (4th Cir. 1997) ("`[T]he ALJ has sole power to
. . . resolve inconsistencies in the evidence'") (citations
omitted).
[10] We note that Bernardyn testified that when he uttered
the purported threat, he was "not trying to describe anybody. I
was just blowing some steam off after what I thought [I] was
harassed." T. Tr. 32.
[11] The dissent implies that anything Bernardyn said over
the company radio system is protected because he "invoked the
protection of the Mine Act in a classic sense - voicing concern
about safety issues to a union official." Slip op. at 12. We
believe, however, that safety is not a four letter word nor that
miners are so primitive as to be unable to express themselves on
important safety issues except through epithets or threats. As
even our dissenting colleagues recognize, the Act does not
protect a "safety complaint . . . made in . . . a reprehensible
manner." Id. at 13.
[12] In Delisio v. Mathies Coal Co., we recognized that
"cases decided under the NLRA - upon which much of the Mine Act's
antiretaliation provisions are modeled - provide guidance on
resolution of discrimination issues under the Mine Act." 12
FMSHRC 2535, 2542-43 (Dec. 1990).
We also note that the National Labor Relations Board case on
which the dissent relies extensively, Caterpillar, Inc., 322 NLRB
674 (1996), was ultimately vacated by the NLRB on March 19, 1998.
Unpublished NLRB Order dated March 19, 1998. We question whether
a vacated case provides any authority, even persuasive authority,
in this or any other legal forum.
[13] Although the issue of provocation is one of first
impression before the Commission, in Moses v. Whitley Dev. Corp.,
we found that the operator failed to establish its affirmative
defense in part because "much of the language and improper
attitude [which the operator alleged motivated the complainant's
discharge] arose in response to [the operator's] unlawful and
provocative attempts to determine if [the complainant] had called
the inspectors." 4 FMSHRC 1475, 1482 (Aug. 1982).
[14] The complainant in M & B Headwear was terminated for
her organizing activities, and, when her applications for job
openings at the company were rejected, she became upset and
threatened to harm the supervisor who had conducted surveillance
of her organizing activities. 349 F.2d at 171-74. The court
held that "when a layoff is discriminatory a rehiring of the
injured employee cannot be avoided by reliance on her later
unpremeditated and quite understandable outburst of anger that in
no way harms or inconveniences the employer." Id.
[15] The dissent first concludes that Bernardyn was
provoked, stating "we are hard pressed to identify any other
reason why Bernardyn would have cursed." Slip op. at 16. They
then conclude that "Bernardyn's actions are excusable and fall
within this leeway." Id. But as we pointed out above, these
factual determinations are not ours to make, but rather must be
made - as a matter of law - in the first instance by the trier of
fact. Island Creek Coal Co., 15 FMSHRC at 347. That this task
belongs in the judge's hands is all the more apparent in this
case where he has not even reviewed the record and facts under
the provocation doctrine we adopt today.
Chairman Jordan and Commissioner Marks, dissenting:
We agree with our colleagues in the majority that the
judge's analysis of Bernardyn's discrimination complaint is
deficient in several respects. However, because we believe that
the record compels the conclusion that Reading Anthracite failed
to prove its affirmative defense, we would reverse the judge's
decision, and thus respectfully dissent.[1]
The salient factor in this case is that Bernardyn was fired
for statements he made during a conversation with his safety
committeeman. Because that conversation constituted protected
activity (see Phillips v. IBMA, 500 F.2d 772, 778 (D.C. Cir.
1974)), and because Bernardyn's comments during that conversation
were not so flagrant that they eviscerated the protections of the
Mine Act, Reading cannot rely on them to discipline Bernardyn.
Consequently, Reading's affirmative defense must fail.
By calling his safety committeeman to complain that he was
being forced to drive a truck on slippery roads at an unsafe
speed, Bernardyn invoked the protection of the Mine Act in a
classic sense -- voicing concern about safety issues to a union
official. This was first deemed protected under the Mine Act's
predecessor, the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. � 801 et seq. (1976) ("Coal Act"), by the D.C. Circuit
in Phillips. In that case the Court reversed a decision of the
Interior Board of Mine Operations Appeals which had held that a
miner had not engaged in protected activity by lodging a safety
complaint with his foreman and mine safety committee because the
Coal Act only protected complaints made to the Secretary or his
authorized representative. The Court recognized that "[o]nly if
the miners are given a realistically effective channel of
communication re health and safety, and protection from reprisal
after making complaints, can the Mine Safety Act be effectively
enforced." 500 F. 2d at 778. Subsequently, when Congress was in
the process of enacting the Mine Act, the Senate Report cited
Phillips favorably, stating that the Senate Committee intended
"to insure the continuing vitality of the various judicial
interpretations of . . . the Coal Act which are consistent with
the broad protections of the bill's provisions," and emphasizing
that the Act's anti-discrimination provision should be "construed
expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the legislation." S.
Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Resources, Legislative History of the
Federal Mine Safety and Health Act of 1977, at 624 (1978).
Discharging a miner for peripheral statements made while
complaining to a safety committeeman may inhibit the frequency
and manner in which miners make safety complaints, resulting in a
chilling effect on their ability to point out safety problems. A
miner must feel free to communicate about such issues - with a
management safety director, a foreman, or a union official -
without undue concern about whether the complaint is couched in
an acceptable format, and thus should not be fired for the manner
in which he states them except in extreme circumstances. These
conversations occur within a framework that Congress wished to
encourage - the protected activity of making safety complaints -
and in making them, a miner enjoys the protection of the Mine
Act's shield against retaliatory actions by the operator.
That shield is not absolute, however. A miner may lose the
protection of the Mine Act in circumstances where his safety
complaint is made in such a reprehensible manner that he no
longer deserves the Act's protections because his actions cross a
certain line. See Caterpillar Inc., 322 NLRB 674 (1996).[2] The
facts in Caterpillar are strikingly similar to the instant case.
Caterpillar fired its employee because during a grievance
meeting, in front of other workers, he said to a supervisor:
"`You're a motherfucking liar.' . . . `You know what you said.'
. . . `If you're man enough to admit it once, you ought to be
man enough to admit it now.'" Id. at 676. He also gestured at
the supervisor with the forefinger of one hand and repeated "`You
motherfucker.' . . . `I'll deal with you on the outside,'"
striking the supervisor with his finger in the top part of his
body. Id. The National Labor Relations Board ("NLRB")
nevertheless ruled that his discharge violated the NLRA. Id. at
677.[3]
The NLRB acknowledged that "`[t]he Act has ordinarily been
interpreted to protect the employee against discipline for
impulsive and perhaps insubordinate behavior that occurs during
grievance meetings, for such meetings require a free and frank
exchange of views and often arise from highly emotional and
personal conflicts.'" Id. (quoting United States Postal Service
v. NLRB, 652 F.2d 409, 411 (5th Cir. 1981)). Recognizing that
such protection is not without limits, the NLRB held that when
"an employee is discharged for conduct occurring during a
grievance meeting, the inquiry must focus on whether the
employee's language is `indefensible in the context of the
grievance involved,'" 322 NLRB at 677 (quoting Crown Central
Petroleum Corp. v. NLRB, 430 F.2d. 724, 731 (5th Cir. 1970))
(emphasis in original) (citation omitted); see also NLRB v.
Vought Corp.-MLRS Sys. Div., 788 F.2d 1378, 1384 (8th Cir. 1986)
(when analyzing employer discipline of employees for protected
activity where the employee used intemperate language, the
standard is whether the employee's improper conduct was so
indefensible as to forfeit the protection of the NLRA). We
consider this standard to be equally pertinent when we must
decide whether a miner's conduct during the course of making a
protected safety complaint exceeds the protection of the Mine
Act.
There is an unmistakable similarity between the lodging of
employee grievances under the NLRA and the filing of safety
complaints under the Mine Act. As the Board recognized in
Caterpillar, "the filing and prosecution of employee grievances
is a fundamental, day-to-day part of collective bargaining and is
protected by [the NLRA]." 322 NLRB at 676-77 (citation omitted).
Similarly, the reporting of safety complaints is a crucial
activity protected by the Mine Act, where candor is essential and
disputes may arise.
Our adoption of the approach taken by the Board in
Caterpillar is consistent with our decision in Secretary of Labor
on behalf of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833
(May 1997). In Knotts, a miner was discharged after engaging in
a conversation with a representative of the mine landowner. The
Commission found that this conversation was protected, because it
included complaints about unsafe mine equipment. Id. at 837.
The operator claimed that it would have fired him in any event
because he expressed disparaging views about mine management
during the conversation, including a statement he allegedly made
that the mine manager "sets outside with his feet on the desk and
acts like a bigshot coal operator." Id. at 839. The Commission
found that "a significant portion of the conversation . . .
concerned safety issues," (id.) and because these protected
safety concerns were expressed in the same conversation as the
unprotected statements "`[i]t is fair that . . . [the employer]
bear the risk that the influence of legal and illegal motives
cannot be separated.'" Id. at 839, 840 (quoting NLRB v. Transp.
Mgmt. Corp., 462 U.S. 393, 403 (1983)). Consequently, we held
that the operator had failed to meet its affirmative defense.
We conclude that the undisputed facts of this case compel
the finding that Bernardyn's conduct was not so indefensible as
to cause him to fall outside the protective confines of the Act.
In fact, Bernardyn's behavior is similar to the behavior the
Board considered in Caterpillar, and we find it appropriate to
adopt its analysis in the instant case:
[W]e find that [the employee's] statement was
a spontaneous and impulsive outburst that was
triggered by [the employer's] own
inflammatory conduct. There is no evidence
that during his 20 years with the Company,
[the employee] was a violent or dangerous
person. In light of the emotionally charged
events that had just occurred, it is apparent
to us that [the employee] simply lost his
temper (or, as [the supervisor] so aptly put
it, "blew up") and made the spontaneous,
emotional outburst at issue here. . . .
. . . [W]e conclude that [the
employee's] conduct during the grievance
meeting was not of such a flagrant or serious
character as to be "indefensible in the
context of the grievance involved," thereby
depriving him of the protections of the Act
and rendering him unfit for further service.
322 NLRB at 677.
In determining that Bernardyn's behavior was not
indefensible, we find it noteworthy that, as the majority points
out, the record contains several other examples of employees who
cursed, but who were not discharged. Slip op. at 7. Unlike
Bernardyn, these employees not only cursed directly at their
supervisors but also displayed other conduct warranting
disciplinary action. See Gov't Ex. C. In all four reported
incidents, however, the workers received only verbal or written
warnings. Id. In one case, an employee was given a verbal
warning for cursing the plant superintendent in March 1994, and a
month later, when he cursed his production foreman, he was only
given a written warning.[4] Id. at 2-3.
In determining that Bernardyn's conduct was not
"indefensible," we have also considered the operator's assertion
that Bernardyn was fired for threatening Wapinski. R. Br. in
Resp. to PDR at 5, 10. We believe, however, that when the entire
context is considered, a reasonable person would not have
considered Bernardyn's words to constitute a threat. We are
mindful that his comments were extremely general, and were not
uttered directly to the alleged "victim."[5] Bernardyn suggested
no specific means of hurting Wapinski, but spoke only in a very
vague, angry manner to a co-worker, his safety committeeman.[6]
He did "fly off the handle," and spoke in a coarse and
disparaging manner, but his words reflected his agitation and
extreme frustration with Wapinski. In sum, the record compels
the conclusion that his actions here cannot be classified as
"indefensible."
In Caterpillar, the NLRB also reaffirmed the well-
established principle, adopted by our colleagues in the majority,
that an affirmative defense must fail if the complainant's
conduct was provoked by the employer. 322 NLRB at 678; slip op.
at 8-9.[7] The majority remands the case for the judge to consider
whether Bernardyn's cursing was provoked by his supervisor's
response to his protected refusal to drive faster. Slip op. at 10.
Based on this record, we are hard pressed to identify any
other reason why Bernardyn would have cursed. In describing his
conversation with the safety committeeman, Bernardyn testified
that he told him that management had asked him to drive faster,
that he thought he should be able to use his own discretion, and
that, in terms of the curse words he used, he "was just blowing
some steam off after what I thought was harassed [sic]." T. Tr.
30, 32. The operator has offered no other reason for Bernardyn's
cursing.
As the majority points out, under a "provocation" doctrine,
a determination must also be made as to whether Bernardyn's
conduct comes within the scope of the "leeway" granted by courts
to employees who were wrongfully provoked. Trustees of Boston
Univ. v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977); see slip op. at
9. Our review of Bernardyn's actions (see supra text
accompanying nn. 2-7) and of the relevant case law in the area of
"provocation," leads us to the conclusion that, as a matter of
law, Bernardyn's actions are excusable and fall within this
leeway. Bernardyn's conduct was no more egregious than the
actions at issue in NLRB v. M & B Headwear Co., 349 F.2d 170 (4th
Cir. 1965) (cited by the majority, slip op. at 10), as well as
other cases following the principles articulated in that
decision. See, e.g., Blue Jeans Corp., 170 NLRB 1425, 1425
(1968) (employee's statement that she "would kill the S.O.B." who
told the company about her union activities, and her actions in
threatening the plant manager with scissors in hand, provoked by
the employer's discriminatory treatment of her); Vought Corp.-
MLRS Sys. Div., 788 F.2d at 1380, 1384 (employee's direct use of
abusive, profane, and threatening language toward his supervisor
was unreasonably provoked by repeated company violations of his
rights under the NLRA).
In deciding to remand this matter, our colleagues cite to
cases in which courts have found that the employee's conduct
negated the protections of the Act. These cases, however, are
readily distinguishable from the matter at hand. In NLRB v.
Louisiana Manufacturing Co., the complainant was rude to his
supervisor and cursed at him directly. 374 F.2d 696, 705 (8th
Cir. 1967). Bernardyn, of course, did not speak directly to his
supervisor during the conversation at issue. In NLRB v. Soft
Water Laundry, Inc., the court denied reinstatement to an
employee who admitted using "extreme profanity" in a conversation
with her supervisor. 346 F.2d 930, 934, 936 (5th Cir. 1965).
The court found that the employee's language and conduct, carried
out in the presence of other employees, constituted
insubordination, because it was in direct defiance of superior
authority, and amounted to a refusal to follow reasonable
instructions. Id. at 934. There is no claim by the operator in
the instant case that Bernardyn refused to follow orders.
Moreover, in neither of these two cases relied on by the majority
did the court utilize a "provocation" analysis. See NLRB v.
Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974)
(distinguishing Soft Water Laundry and Louisiana Mfg., because
"both involved unprovoked outbursts of abusive and threatening
language by the discharged employees").
Finally, in Timpte, Inc. v. NLRB, 590 F.2d 871, 872 (10th
Cir. 1979), the employee was not discharged when he circulated a
controversial letter in the plant, but only after he refused to
agree that in the future he would not circulate material with
vulgar and indecent language. Again, this conduct is a far cry
from Bernardyn's.
Even under the traditional disparate treatment analysis
discussed by the majority, we believe that reversal, and not
remand, is warranted here. Keeping in mind that Reading must
prove its affirmative defense by a preponderance of the evidence,
(Secretary of Labor on behalf of Price v. Jim Walter Resources,
Inc., 14 FMSHRC 1549, 1556 (Sept. 1992)), our review of the
record evidence on prior cursing incidents shows that Reading
cannot meet its burden of showing that it would have fired
Bernardyn based solely on his cursing. The majority remands the
case so that the judge may consider whether Reading proved that
it would have discharged Bernardyn for his cursing alone, even
though Reading had never fired an employee for this behavior in
the past. As we have demonstrated above, however, the record
compels the conclusion that Bernardyn was the victim of disparate
treatment, as other employees who cursed were not fired, and the
operator's claim that he was fired for threatening Wapinski is
not supported by record evidence.[8]
Our colleagues decline to compare the previous cursing
incidents to the one at issue here, because of the possibility
that Bernardyn's actions fell under a new 1998 disciplinary
policy. Accordingly, they remand to the judge the question of
which disciplinary policy was in effect at the time of
Bernardyn's termination. Slip op. at 6-7. We believe, however,
that under either policy, cursing of the kind that occurred here
cannot reasonably be considered an offense warranting immediate
dismissal.
For purposes of this case, the only relevant difference
between the two policies is that the 1998 policy permits
immediate discharge for work refusal and insubordination, while
the earlier policy called for progressive discipline when such
conduct occurred. Under the 1998 policy, the following
misconduct constitutes grounds for immediate dismissal:
(1) Refusal to obey orders, refusal to
perform work assignment after
instruction, failure to carry out
instructions or assignments or act of
insubordination.
(2) Stealing.
(3) Possession or using intoxicants or drugs
in the area of work.
(4) Carrying weapons on Company property.
(5) Physical fighting.
R. Ex. 2, at 3. It is apparent that the behaviors described in
this list involve actions so serious that they must be stopped
immediately, and the perpetrator removed from the mine. It is
significant, however, that in Bernardyn's case, he was permitted
to continue his behavior, even though management was aware of it
and could have stopped it. We find it telling that when Derrick
was asked why he didn't get on the CB radio and tell Bernardyn to
stop cursing, he replied: "It never dawned on me to do it. . . .
[I]t never crossed my mind to pick up the CB and tell him to
stop." T. Tr. 116.
Under the 1987 policy, misconduct considered a "serious
offense," meriting discharge only after the exhaustion of other
disciplinary remedies, included "[r]efusal to obey orders or
failure to carry out instructions or assignments.
(Insubordinations)." Gov't Ex. B at 2. Reading viewed the 1998
policy as simply moving this provision from the progressive
discipline section in the 1987 policy to the immediate discharge
section in the 1998 policy. See R. Ex. 2 at 1 (letter from
Howard A. Rosenthal). The wording under the 1987 policy makes
clear that insubordination was defined as work refusal, and that
cursing would not fall under this rubric.
Consequently, we believe that remanding the disciplinary
policy issue to the judge is unnecessary, because the record
supports only one reasonable conclusion: even if the later policy
were in effect, under the terms of its provisions, cursing was
not cause for immediate dismissal. Bernardyn's termination,
therefore, may properly be compared to the discipline previously
received by other workers under the 1987 policy, discipline
which, as we have stated, was far less severe.
Because we believe that the record in this case compels the
conclusion that Reading failed to prove its affirmative defense,
we would reverse the judge's finding of no discrimination. See
Donovan v. Stafford Construction Co., 732 F.2d 954, 961 (D.C.
Cir. 1984) (although neither the Commission nor the judge had
reached the issue of an affirmative defense, the D.C. Circuit
recognized that "[s]ince all the evidence bearing upon the issue
is contained in the record before us . . . a remand on this issue
would serve no purpose. This is particularly so in light of our
ultimate holding that only one conclusion would be
supportable."); Brown v. East Miss. Elec. Power Ass'n., 989 F.2d
858, 862 (5th Cir. 1993) (evidence permitted only one result -
that the employer failed to meet its burden of proving that it
would have removed employee if the illegal consideration of race
had not played a role); Secretary of Labor on behalf of Bowling
v. Mountain Top Trucking Co., 21 FMSHRC 265, 277 (Mar. 1999),
appeal docketed, No. 99-4278 (6th Cir. Oct. 22, 1999) (remand on
constructive discharge claim was unnecessary where the record as
a whole admitted to only one conclusion); see also Walker Stone
Co. v. Secretary of Labor, 156 F.3d 1076, 1085 n.6 (10th Cir.
1998), aff'g 19 FMSHRC 48, 52-53 (Jan. 1997); Secretary of Labor
on behalf of Hyles v. All Am. Asphalt, 21 FMSHRC 119, 137 (Feb.
1999).
For the foregoing reasons, we believe that a remand in this
case would serve no purpose, and we would therefore reverse the
judge's decision and find in favor of Bernardyn.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
Distribution
Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
P.O. Box 450
Pottsville, PA 17901
Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1] We agree with the majority that the judge properly
found that Bernardyn had made out a prima facie case of
discrimination. Slip op. at 4.
[2] While Caterpillar was decided under the National Labor
Relations Act ("NLRA"), 29 U.S.C. � 141 et seq., we have often
looked for guidance to case law interpreting similar provisions
of the NLRA in resolving questions about the proper construction
of Mine Act provisions. Berwind Natural Resources Corp., 21
FMSHRC 1284, 1309 (Dec. 1999); Delisio v. Mathies Coal Co., 12
FMSHRC 2535, 2542-45 (Dec. 1990). In Delisio, the Commission
emphasized that it "has recognized . . . that . . . cases decided
under the NLRA - upon which much of the Mine Act's
antiretaliation provisions are modeled - provide guidance on
resolution of discrimination issues under the Mine Act." Id. at
2542-43.
[3] The NLRB, on the joint motion of the parties,
subsequently vacated its decision in Caterpillar in order to
effectuate a settlement agreement (see Unpublished NLRB Order
dated Mar. 19, 1998), but the NLRB has nonetheless continued to
cite it. See Central Illinois Public Serv. Co., 326 NLRB No. 80,
159 LRRM (BNA) 1217, 1218 n.8 (Aug. 27, 1998); Shell Electric,
325 NLRB No. 156, 1998 WL 280365, at *4 (May 29, 1998).
[4] The April employee warning and disciplinary report
reflects that he had received the previous verbal warning in
March, and that he had received three other previous warnings
(for unspecified actions) since 1989. Gov't Ex. C at 3.
[5] Because he used the only means of communication at
hand, the company-provided CB radio in his truck, Bernardyn's
complaint to his safety committeeman did wind up being overheard
by Wapinski, as well as other drivers.
[6] The judge's finding that Bernardyn himself did not
intend his words as a threat is also relevant. See 21 FMSHRC
819, 823 & n.9 (July 1999) (ALJ).
[7] In Caterpillar, the Board found that the employee's
discharge was illegal because the employer had provoked the
alleged insubordination by cursing at him and imposing an
unlawful gag order. 322 NLRB at 678-79.
[8] It is also significant that supervisors had previously
used profanity toward miners. M. Tr. 17-19, 30-31; see also
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1366
(11th Cir. 1999) (emphasizing prior circuit holding that
"evidence demonstrating that the decision-maker engaged in the
same policy violation proffered for an employee's termination is
`especially compelling' evidence of pretext") (citation omitted).