<DOC>
[DOCID: f:pen99158.wais]
READING ANTHRACITE COMPANY
September 19, 2001
PENN 99-129-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 19, 2001
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: Verheggen, Chairman; Jordan, Riley and Beatty,
Commissioners
DECISION
BY: Verheggen, Chairman, and Riley, Commissioner
This discrimination proceeding, before us for a second time,
arises under section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 815(c) (1994) ("Mine Act" or "Act"). In
his original decision, Administrative Law Judge Avram Weisberger
concluded that Reading Anthracite Company ("Reading") did not
violate section 105(c)(1) of the Act when it discharged miner
Leonard Bernardyn on November 10, 1998. 21 FMSHRC 819, 824 (July
1999) (ALJ). The Commission vacated Judge Weisberger's decision
and remanded the matter for further analysis. 22 FMSHRC 298
(Mar. 2000) ("Bernardyn I"). On remand, the judge again
concluded that Reading's discharge of Bernardyn did not violate
section 105(c)(1). 22 FMSHRC 951, 955 (Aug. 2000) (ALJ). The
Commission granted the Secretary's petition for discretionary
review ("PDR") of the judge's remand decision. For the following
reasons, we vacate that decision and remand for further analysis.
I.
Factual and Procedural Background
A. Facts and Initial ALJ Decision
Bernardyn had worked for Reading for nineteen years,
including working as a haulage truck driver at Reading's Pit 33,
a coal mine in Wadesville, Pennsylvania, for approximately four
and a half to five years before his discharge. 22 FMSHRC at 299.
Around 7:00 a.m. on November 10, 1998, Bernardyn began driving
his 190-ton Titan haulage truck on his usual route. Id.
Overall, the road has a grade of approximately 8%, and parts of
it are as steep as 10.3%. Id. When Bernardyn began driving, the
weather was foggy and misty, and slippery road conditions caused
Bernardyn to drive slower than usual. Id.
After prompting from Reading's general manager Frank
Derrick, who had seen the Titan driving slowly, mine
superintendent Stanley Wapinski stopped Bernardyn and asked him
why he was driving slowly. Id. Bernardyn responded that the
roads were getting slippery. Id. Wapinski told Bernardyn to
drive faster. Id. Approximately 20 minutes later, Derrick again
noticed a Titan truck driving slowly and asked Wapinski whether
it was the same truck. Id. When Wapinski answered yes and
identified Bernardyn as the driver, Derrick told him to remove
Bernardyn from the haulage run. T. Tr. at 85-86.[1] Wapinski
met 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. 22 FMSHRC at 299.
After the second conversation with Wapinski, Bernardyn used
the C.B. radio in his truck to call Thomas Dodds, the United Mine
Workers of America ("UMWA") safety committeeman. Id. Dodds was
driving a truck on the same shift as Bernardyn. Id. Bernardyn
told Dodds he was being asked to drive at a higher speed than he
believed was safe given the poor road conditions. Id. During
his 8-10 minute complaint to Dodds, Bernardyn repeatedly cursed
and, referring to Wapinski, said "I'll get the little f----r."
Id. Derrick overheard Bernardyn's complaints and profanity on
the C.B. radio, but he testified that "it never crossed my mind
to pick up the CB and tell him to stop." T. Tr. 116. Derrick
fired Bernardyn after he had dumped the load in his truck,
assertedly for profanity and threatening a supervisor over the
C.B. radio. 22 FMSHRC at 299-300.
Within 30 minutes after Bernardyn's termination, road
conditions worsened, and a layer of ice had formed on the road.
Id. at 300 n.2. After a foreman's truck slid down the haulage
road, the road was shut down due to the slippery conditions. Id.
On November 12, 1998, Bernardyn filed a discrimination
complaint with MSHA alleging that he was discharged unlawfully.
Id. at 300. The Secretary's application for temporary
reinstatement was granted, and Bernardyn was ordered temporarily
reinstated to his former position on March 19, 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
consistent with the road conditions, 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. The judge
rejected the Secretary's argument that in discharging Bernardyn,
Reading treated him disparately when compared with other
employees who had cursed but had only received warnings. Id. at
822-23. The Secretary petitioned the Commission for review of
the judge's decision.
B. Bernardyn I
On review, the Commission concluded that the judge failed to
properly analyze evidence relevant 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. 22 FMSHRC at 302-03
(citing Sec'y of Labor on behalf of Cooley v. Ottawa Silica Co.,
6 FMSHRC 516, 521 (Mar. 1984)). The Commission also ordered the
judge to resolve the issue of which of two different disciplinary
policies was in effect at the time of Bernardyn's discharge.[2]
22 FMSHRC at 303-04. The Commission further instructed the judge
to resolve the inconsistency between his finding that Bernardyn
did not believe he threatened Wapinski, and his statement that
Derrick terminated Bernardyn because he threatened Wapinski. Id.
at 304-05. The Commission also ordered the judge to analyze "how
Bernardyn's words could constitute a threat when Wapinski . . .
did not hear Bernardyn's supposedly threatening language;"
"whether Wapinski perceived any threat at all - let alone a
threat of physical harm;" and "whether the general words
Bernardyn used, which named no person in particular, constituted
a threat against Wapinski." Id. at 305. Finally, the Commission
instructed the judge to determine whether Bernardyn's cursing and
alleged threat were provoked by Reading's response to his
protected refusal to drive faster, and, if so, "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.'" Id. at
307-08.
C. The ALJ's Remand Decision
In his remand decision, the judge found that the 1987
disciplinary policy was in effect at the time of Bernardyn's
discharge. 22 FMSHRC at 952-53. Although taking "cognizance"
of, and briefly discussing, four other incidents of miners
cursing without being discharged, the judge concluded that,
"based on Derrick's testimony, . . . I find credible, inasmuch as
it was not impeached or contradicted, that, in contrast to these
individuals who just received warnings, Bernardyn used
threatening language over the C.B. radio . . . ." Id. at 953
(emphasis in original). The judge also found that "the other
individuals made a profane remark only once, whereas Bernardyn
used profanity `non-stop' for approximately 8 to 10 minutes," and
that Bernardyn's conduct was "more egregious, and thus not in the
same category as the others who were merely warned." Id.
(citations omitted).
In finding that Bernardyn threatened Wapinski, the judge
found Bernardyn's "general statement [that he had never
threatened anybody in his life] insufficient to contradict or
impeach Derrick' testimony regarding the specific language used
by Bernardyn." Id. at 952 (emphasis in original). The judge
found Bernardyn's state of mind was not dispositive of whether
Bernardyn threatened Wapinski. Id. Rather, he stated that he
relied on "the objective context in which Bernardyn uttered the
statement at issue" - namely that Bernardyn made the statement
over the C.B. radio in an attempt to contact his union
representative, and that he admitted he cursed, thereby
exhibiting a degree of animus. Id. (emphasis in original). The
judge concluded that Bernardyn's statement "constituted a threat,
i.e., an expression of an intent to inflict harm on another."
Id.
The judge also found that the record does not contain "any
actions or conduct on the part of any of Reading's agents that
might constitute an act of provocation," and concluded that "the
Secretary has failed to establish that Reading provoked Bernardyn
into using profanity and issuing a threat over a C.B. radio."
Id. at 953 (emphasis in original). He also found that Wapinski's
statements to Bernardyn "are devoid of any threat or expression
of animus toward Bernardyn or his protected activity." Id.
Finally, the judge also determined that Bernardyn's unprotected
activities were "out of proportion to the one-time, brief
statements Wapinski made to him." Id. at 953-54.
II.
Disposition
The Secretary submits that the judge erred in finding that
Reading would have discharged Bernardyn for using profanity and
making a threat even if Bernardyn had not engaged in protected
activity. PDR at 8.[3] She argues that the judge failed to give
any consideration to the fact that, in discharging Bernardyn,
Reading departed from the plain terms of its 1987 disciplinary
policy. Id. at 15. She also asserts that the judge's conclusion
is erroneous because Bernardyn did not make a threat, cursing was
prevalent among employees and management at Reading, and
Bernardyn's 8-10 minute cursing episode was not more serious than
other employees' histories of cursing. Id. at 18-19. The
Secretary also argues that the judge erred in basing his
conclusion that there was no provocation on his finding that
Reading's actions did not contain a threat or expression of
animus. Id. at 23-24. The Secretary also maintains that
Bernardyn's utterance of his statement that he would "get" a
member of management is outweighed by Reading's provocative act
of ignoring Bernardyn's expression of legitimate safety concerns.
Id. at 25. The Secretary characterizes as without legal or
logical basis the judge's finding that Reading did not provoke
Bernardyn's cursing and alleged threat because Reading's
allegedly provocative behavior consisted only of statements and
not actions. Id. at 23.
Reading responds that the judge correctly found that
Bernardyn's conduct was distinguishable from the conduct of
Reading employees who had only received warnings for cursing in
that Bernardyn's statements were broadcast over the C.B. radio,
continued for eight to ten minutes, and contained a threat aimed
at Wapinski, and that the operator would have discharged
Bernardyn even if he had not engaged in protected activity. R.
Br. at 6, 12. Reading disagrees with the judge's conclusion that
the 1987 policy was in effect at the time of Bernardyn's
discharge. Id. at 12. Reading submits that substantial evidence
supports the judge's finding that Bernardyn threatened Wapinski.
Id. at 11. Reading argues that none of Bernardyn's testimony
supports the Secretary's assertion that his outburst was provoked
by Reading or that he believed he was in danger of being
disciplined. Id. at 15-19. Finally, Reading claims that, even
though Bernardyn's statements arguably expressed a feeling that
he was not comfortable driving as fast as Reading officials asked
him to drive, his "extreme" and "disproportionate" response
stripped him of the protection of the Mine Act. Id. at 17.
A. The Pasula-Robinette Framework
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. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec'y of Labor on behalf of Pasula v. Consol. Coal Co., 2
FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Sec'y 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 E. Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987)
(applying Pasula-Robinette test).
Here, Reading does not dispute the judge's finding that the
Secretary established a prima facie case. The analysis therefore
shifts to whether substantial evidence[4] supports the judge's
conclusion that Reading would have terminated Bernardyn even if
he had not engaged in protected activity. To make out its
affirmative defense, the operator must prove by a preponderance
of the evidence that it would have taken the adverse action in
any event because of unprotected activity alone. Sec'y of Labor
on behalf of Price & Vacha v. Jim Walter Res., Inc., 14 FMSHRC
1549, 1556 (Sept. 1992) (citing E. Assoc. Coal Corp., 813 F.2d at
642).
The affirmative defense may be challenged on the ground that
it is pretextual. See Sec'y of Labor on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2516 (Nov. 1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir. 1983). The Commission has
stated that, in considering an employer's business justification,
"pretext may be found, for example, where the asserted
justification is weak, implausible, or out of line with the
operator's normal business practices." Sec'y of Labor on behalf
of Price & Vacha v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534
(Aug. 1990) (citing Haro v. Magma Copper Co., 4 FMSHRC 1935,
1937-38 (Nov. 1982)). The Commission held in Secretary of Labor
on behalf of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833
(May 1997) that, "[i]n reviewing affirmative defenses, the judge
must determine whether they are credible and, if so, whether they
would have motivated the particular operator as claimed." Id. at
838 (citation omitted). The Commission has cautioned that this
affirmative defense should not be "examined superficially or be
approved automatically once offered." Haro, 4 FMSHRC at 1938.
However, "[o]nce it appears that a proffered business
justification is not plainly incredible or implausible, a finding
of pretext is inappropriate." Chacon, 3 FMSHRC at 2516.
B. Disparate Treatment
In Chacon, the Commission indicated that disparate treatment,
in addition to serving as one of the possible bases of a prima
facie case, may also be established by a complainant to refute an
operator's affirmative defense. 3 FMSHRC at 2512-13, 2517. In
analyzing whether a complainant was disparately treated in the
context of termination for using offensive language, the
Commission has looked to whether the operator had prior
difficulties with the complainant's profanity, whether the
operator had a policy prohibiting swearing, and how the operator
treated other miners who had cursed. See Cooley, 6 FMSHRC at
521; Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 532-33 (Apr.
1991).
Notwithstanding the Commission's conclusion in Bernardyn I
that the judge "failed to adequately analyze the evidence
relevant to the Cooley factors," 22 FMSHRC at 303, on remand the
judge did not rely on Cooley and again failed to correctly apply
the Cooley factors. Accordingly, we are constrained once more to
vacate the judge's decision and remand for application of
Commission precedent. On remand, the judge must reconsider his
reiteration of his initial determination that Bernardyn did not
suffer disparate treatment and discrimination under section
105(c), according to the principles set forth below.
1. Complainant's Prior Use of Profanity
In concluding in Bernardyn I that the judge had failed to
adequately analyze evidence relating to the Cooley factors, we
found that "the record does not contain any evidence of prior
difficulties Reading may have had with Bernardyn swearing."
22 FMSHRC at 303. Yet in the two paragraphs he devoted to the
disparate treatment issue on remand, the judge made no reference
to this finding, which was dispositive of one of the Cooley
factors and weighs against a finding that Reading established its
affirmative defense. On remand, we direct the judge to apply
this prong of the Cooley test in determining whether Reading
treated Bernardyn disparately and would have terminated him
solely for his unprotected conduct.
2. Disciplinary Policy on Cursing
The judge found that Reading's 1987 disciplinary policy was in
effect at the time of Bernardyn's discharge. As the judge
pointed out, an August 4, 1998 letter from Reading's attorney to
a UMWA executive board member states 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." 22 FMSHRC at 952. At the
hearing, the UMWA District Executive Board Member testified that
the new collective bargaining agreement was not ratified until
November 16, 1998, after Bernardyn's November 10 discharge. M.
Tr. 45-46. Moreover, a November 17, 1998 letter from Reading's
attorney stated that Reading accepted the terms of the new 1998
code of conduct proposed by the UMWA, subject to a handful of new
provisions described in the letter. Gov't Ex. A. Accordingly,
we conclude that substantial evidence supports the judge's
finding that the 1987 policy was in effect at the time of
Bernardyn's discharge.
Having found that the 1987 disciplinary policy was in effect,
however, the judge inexplicably failed to apply this finding to
the issue of disparate treatment. In remanding this proceeding
to the judge, we stated:
**FOOTNOTES**
[1]: Hearings on Bernardyn's temporary reinstatement
application and on the merits of his discrimination complaint
were held on March 16 and May 18, 1999, respectively. References
to the transcript of the temporary reinstatement hearing are in
the form "T. Tr." References to the transcript of the merits
hearing are in the form "M. Tr." The judge incorporated the
transcript and exhibits from the temporary reinstatement hearing
into the record of the merits proceeding. M. Tr. 9-10.
[2]: Reading's 1987 disciplinary policy established a
system of progressive discipline for most offenses, and did not
include cursing or insubordination among the four offenses
subjecting employees to "immediate suspension subject to
discharge." Gov't Ex. B at 1. Its 1998 disciplinary policy
provided for immediate discharge for insubordination. R. Ex. 2
at 1.
[3]: The Secretary designated her PDR as her opening brief.
[4]: 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)). In reviewing the
whole record, an appellate tribunal must consider anything in the
record that "fairly detracts" from the weight of the evidence
that supports a challenged finding. Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).
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.
22 FMSHRC at 303 (emphasis supplied).
There is simply no provision in Reading's 1987 code of conduct
establishing either cursing or threatening language as an offense
warranting immediate termination. Gov't Ex. B. The 1987 policy
classifies offenses into three groups. Id. Misconduct falling
under the heading "Discharge for Just Cause" subjected employees
to "immediate suspension subject to discharge." Id. at 1. Only
four offenses were listed in this classification:
1. Stealing.
2. Possessing or using intoxicants or drugs in the area
of work.
3. Carrying weapons on Company property.
4. Physical fighting.
Id.
Another group of offenses subjected employees to "discharge
following complete exhaustion of disciplinary warning and
suspensions." Id. at 2. Under Reading's 1987 policy, the
penalty for the first act of misconduct for these offenses was "a
verbal warning."[5] Id. Neither cursing nor threats was listed
as an offense under this category. Id. Nevertheless, Reading
administered progressive discipline to several employees who
cursed or verbally abused members of management. However, the
four other reported incidents of cursing at Reading also involved
other acts of misconduct or insubordination. Gov't Ex. C; M. Tr.
29. Specifically, in addition to cursing, other miners who
cursed and were disciplined by Reading also 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. In none of these cases was the employee
discharged.[6] Gov't Ex. C; M. Tr. 29. Thus, Reading had no
established practice of disciplining workers for cursing in the
absence of accompanying insubordinate acts, or of treating
cursing as conduct warranting immediate discharge. Cf. Cooley, 6
FMSHRC at 521 ("[T]here is no evidence that anyone had ever been
disciplined by [the operator] for swearing . . . ."); Knotts, 19
FMSHRC at 838, 840 (finding that operator failed to establish an
affirmative defense because it "offered no evidence of past
discipline, prior work record, or personnel practices showing
that it would have terminated [complainant] regardless of his
protected activity").
The judge failed to address the 1987 policy, or the policy
prong of the Cooley standard, in his brief discussion of
disparate treatment. 22 FMSHRC at 953. In his conclusion, the
judge appeared to acknowledge that, under the terms of Reading's
1987 disciplinary policy and under its application of that policy
prior to Bernardyn's discharge, Reading did not prohibit cursing
or threats and did not permit immediate termination of miners who
cursed or uttered a threat. The judge stated:
The disciplinary policy of 1987 in effect when
Bernardyn was terminated did not specifically
grant Respondent the right to terminate an
employee based upon the latter's use of
profanity, and the issuance by the latter of a
threat against a supervisor.
Id. at 955.
Based on the judge's findings that the 1987 disciplinary
policy was in effect, that the policy did not permit summary
termination for profanity or using threatening language, and that
Reading nevertheless immediately discharged Bernardyn for those
offenses, the conclusion is inescapable that Reading violated its
policy in terminating Bernardyn. Yet the judge failed to apply
these findings in deciding that Reading did not subject Bernardyn
to disparate treatment. We direct the judge to do so when he
revisits the disparate treatment issue on remand.
3. Treatment of Similarly Situated Miners
The judge distinguished Bernardyn's cursing from prior
incidents of cursing at Reading on the following grounds: (1)
Bernardyn's cursing was broadcast over the C.B. radio, (2)
Bernardyn cursed for approximately 8 to 10 minutes, whereas other
miners cursed only once, and (3) only Bernardyn threatened a
supervisor. 22 FMSHRC at 953. We must decide whether the judge
properly distinguished Bernardyn's cursing episode from prior
cursing episodes at Reading that were either not cited at all as
the basis for discipline, or resulted only in warnings.
a. Use of C.B. Radio
We understand the judge's finding regarding Bernardyn's use of
the C.B. radio to mean that, because other people at the mine
could hear his profane outburst, his case was distinguishable
from prior cursing incidents. In this regard, Reading claimed at
the hearing that the fact that other employees could hear
Bernardyn's cursing influenced Derrick's decision to discharge
Bernardyn. T. Tr. 127. However, like Bernardyn's cursing
episode, other incidents of cursing at Reading involved miners
who directed profanity at supervisors in the presence of other
employees. Gov't Ex. C at 1, 4. For instance, one miner told a
supervisor in front of other employees to "kiss his Irish a--,"
and received only a verbal warning. Id. at 1. In another
instance, at the same time the production foreman talked with
other employees in front of the "Mine Comm. Chairman," an
employee ignored the production supervisor, walked away from him
and said, "Ah - f--- you, I'm sick of this f---in s--t." Id. at
4. This employee was given a one-day suspension for verbal abuse
and failing to listen to a supervisor. Id. Accordingly, we
conclude that substantial evidence does not support the judge's
finding that Bernardyn's broadcast of his cursing over the C.B.
radio materially distinguished his cursing episode from previous
cursing incidents.
b. Duration of Cursing
The judge cited no authority for his assertion that the
duration of Bernardyn's outburst was a factor distinguishing his
from others. Commission precedent establishes that it is not the
duration of various single incidents that is most relevant to
disparate treatment analysis, but rather whether there was a
prior problem with misconduct involving the complainant. See
Cooley, 6 FMSHRC at 521. In addition, we note Derrick's
concession that he could have contacted Bernardyn on the C.B. and
told him to stop cursing, but "it never crossed [his] mind" to do
so. T. Tr. 116. Thus, the record establishes that Reading could
have terminated Bernardyn's outburst at any time.
Moreover, in comparing Bernardyn's cursing to prior cursing
incidents, the judge found that the other miners who cursed at
Reading had done so "only once." 22 FMSHRC at 953. Substantial
evidence does not support this finding. One miner received at
least two warnings for three separate incidents of verbal abuse
within a two-month period, and yet was not terminated for
cursing. See Gov't Ex. C at 2-3.[7] Bernardyn had no such
history of cursing.
c. Bernardyn's Alleged Threat
We note at the outset that, even if Bernardyn's statement
could be construed as a threat, it would not be dispositive of
the disparate treatment issue because, under Reading's 1987
disciplinary policy, threats are not among the offenses
justifying immediate discharge. That said, we are satisfied that
substantial evidence does not support the judge's finding that
Bernardyn threatened his supervisor.
Although the Commission instructed the judge to re-examine his
holding that Bernardyn threatened Wapinski, given that Wapinski
did not hear Bernardyn's statement, and in view of Bernardyn's
use of only general words, the judge did not address either
circumstance on his way to reiterating his initial finding that a
threat was made. We find this lapse troubling. See Dolan v. F&E
Erection Co., 23 FMSHRC 235, 240-41 (Mar. 2001) (reiterating that
judges must strictly follow Commission's remand instructions).
While delineating the parameters of a threat appears to be a
question of first impression for the Commission, we now hold that
a single, general statement that mentions no person by name,
unaccompanied by coercive conduct or warning of specific harm,
made in the course of a safety complaint to a safety
representative, and not directed to any possible subject of the
statement, does not constitute a threat. Our holding is
consistent with decisions of the National Labor Relations Board
("NLRB" or "Board") and courts, which have looked to the words
uttered, as well as the circumstances surrounding an alleged
threat.[8] For example, in Vought Corp., 273 N.L.R.B. 1290,
1292, 1295 (1984), aff'd, 788 F.2d 1378 (8th Cir. 1986), the NLRB
held that an employee who, upon being ordered to sign a
disciplinary statement the employee believed to be based on
erroneous facts, said to his supervisor, "I'll have your a--" did
not issue a physical threat, but rather made a threat to file an
unfair labor practice charge or to report the supervisor to
higher management. In Heck's Inc., 280 N.L.R.B. 475, 479 (1986),
the Board found that a discharged employee's statement that the
employer "will get his, I guaran-d--n-tee you" was not a threat
of bodily harm and was made when he was discussing with co-
workers alleged grievances against management. In Anaconda
Insulation Co., 298 N.L.R.B. 1105, 1112-13 (1990), the Board
determined that conduct of an employee who called a
superintendent a "son of a b----" and threatened to "get" him did
not constitute a threat of immediate harm or cause damage to
property.
The Tenth Circuit's decision in Midwest Solvents, Inc. v.
NLRB, 696 F.2d 763 (10th Cir. 1982), is also instructive. In
that case, an economic striker went to a non-striking employee's
apartment and stated that he had better "watch" himself, and that
"some of the boys might get rowdy." Id. at 766. The Tenth
Circuit stated that "[i]n the absence of other threatening state-
ments or of some coercive action, this statement is too ambiguous
to be considered a threat." Id.
However, threats have been found where employees threaten to
kill or harm employees. For instance, in NLRB v. R.C. Can Co.,
340 F.2d 433, 434, 436 (5th Cir. 1965), the Fifth Circuit found
that a wrongfully fired employee's statement to his supervisor
that he "would kick the hell out of him the first chance I got,"
was deemed serious enough to justify the employer's refusal to
reinstate the employee. In Associated Grocers of New England,
Inc. v. NLRB, 562 F.2d 1333, 1336-37 (1st Cir. 1977), an
employee's statement to three job applicants that they should not
cross the picket line "if they valued their lives," was described
by the First Circuit as a threat.
The substance and context of Bernardyn's statement closely
parallels situations in which the NLRB and courts have concluded
that no threat occurred. Here, as in Midwest Solvents, Vought,
and Heck's, Bernardyn's statement that he would "get" an unnamed
person was general and vague, and it was not repeated or
accompanied by any threatening action. Moreover, like the
complainant in Heck's, Bernardyn did not speak directly to any
possible object of his statement, and made his statement in the
course of complaint to a union safety committeeman about
management actions. Bernardyn's statement is distinguishable
from those of the employees in Associated Grocers and R.C. Can
in that his words were not spoken directly to Wapinski, and his
vague statement lacked the evidence of a threat of bodily harm
exhibited by the employees in those cases.
Reading cites NLRB v. Bin-Dicator Co., 356 F.2d 210, 212-14
(6th Cir. 1966), for the proposition that an employee's statement
that he would "get" his manager was deemed a threat. The
employee in Bin-Dicator stated "[t]his is a personal feud between
you and me. I don't know when, but some day we are going to
meet, and I am going to get you." Id. at 212. However, unlike
the present case, the employee went on to threaten that "[w]hen I
get you, you can expect to spend some time in a wheelchair," made
a physical threat with a leather work mitten, the back of which
was covered in metal staples, and subsequently threatened to
strike the supervisor with a six and a half pound casting. Id.
at 212-13. Moreover, in contrast to the instant matter, the
employee verbally and physically threatened the supervisor in a
direct confrontation. Id.
Finally, in support of his finding that Bernardyn threatened
Wapinski, the judge stated that Bernardyn's cursing evidenced "a
degree of animus." 22 FMSHRC at 952. However, as suggested by
Vought, Heck's and Anaconda, an employee's expression of anger
towards a supervisor is not tantamount to a threat.
In light of our determination that Bernardyn's use of the C.B.
radio and the duration of the cursing incident do not
meaningfully distinguish Bernardyn from other Reading employees
who were not terminated for cursing, we conclude that substantial
evidence does not support the judge's finding that Bernardyn was
not similarly situated to those employees. Consequently, as to
the third Cooley factor, we conclude that substantial evidence
fails to support the judge's finding that Reading did not treat
Bernardyn more harshly than similarly situated employees. The
record evidence that Reading merely warned other miners for
engaging in conduct similar to Bernardyn's further detracts from
the judge's finding that Reading did not treat Bernardyn
disparately. Given our conclusions that the record evidence on
the first two Cooley factors, past incidents of Bernardyn cursing
and Reading's policy concerning profanity, also detract from the
judge's negative disparate treatment finding, we direct the judge
on remand to reanalyze, consistent with Cooley, whether Bernardyn
was the victim of disparate treatment.
C. Provocation
If the judge determines on remand that Reading disparately
treated Bernardyn by firing him, he need not reach the issue of
whether Reading provoked Bernardyn's conduct. However, we
address the problems with the judge's analysis of provocation in
the hopes of avoiding further appellate proceedings in this
matter.
The Commission has held that an employer may not provoke an
employee and then rely on the employee's provoked unprotected
activity as grounds for discipline. Moses v. Whitley Dev. Corp.,
4 FMSHRC 1475, 1482 (Aug. 1982). The complainant in Moses was
accused on three occasions of reporting an accident at the mine
to MSHA. Id. at 1476-77. Subsequently, a heated and profanity-
laden exchange occurred between the complainant and his foreman,
after which the foreman terminated the complainant. Id. at 1478.
The Commission 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." Id. at 1482.
In Bernardyn I, the Commission noted that courts have excused
employee outbursts when they are provoked by unjustified employer
action. 22 FMSHRC at 306. Courts have recognized that
unprotected actions will inevitably occur during otherwise
protected activity, and that "not every impropriety is grounds
for discharge." NLRB v. W.C. McQuaide, Inc., 552 F.2d 519, 527
(3d Cir. 1977). In NLRB v. Thor Power Tool Co., 351 F.2d 584.
587 (7th Cir. 1965), the court stated that if an employee's
conduct is not egregious, there is "some leeway for impulsive
behavior."[9]
The leeway provided to employees whose unprotected behavior
was provoked by the employer is fairly broad. In Trustees of
Boston University v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977), the
First Circuit stated that "the leeway [afforded employees for
impulsive behavior] is greater when the employee's behavior takes
place in response to the employer's wrongful provocation." In
that case, the court upheld an NLRB decision excusing an
employee's brandishing of a pair of scissors as provoked by the
employer's own wrongful conduct. Id. at 392-93. In NLRB v.
M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965), the Fourth
Circuit 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." The court upheld the reinstatement of a complainant
who, after her discriminatory layoff, threatened a supervisor and
was rude to a vice-president. Id. The court noted that "the
unjust and discriminatory treatment of [the complainant] gave
rise to the antagonistic environment in which these remarks were
made." Id. In Coors Container Co. v. NLRB, 628 F.2d 1283, 1285,
1288 (10th Cir. 1980), 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. In NLRB v.
Steinerfilm, Inc., 669 F.2d 845, 852 (1st Cir. 1982), the First
Circuit upheld a decision of the 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.
Here, Wapinski ordered Bernardyn to drive faster under highly
unsafe driving conditions. Because Bernardyn was driving slowly,
Derrick ordered Wapinski to remove Bernardyn from the haulage
run. Twenty minutes after first ordering Bernardyn to drive
faster, Wapinski again approached Bernardyn at the pit, told him
he was holding things up, and directed him to meet Wapinski at
the dump after his current run. Absent Wapinski's response to
Bernardyn's protected refusal to drive faster, Bernardyn would
not have had any reason to make the complaint to Dodds during
which he used profanity. These facts in the record detract from
the judge's conclusion that Reading did not provoke Bernardyn's
outburst.
In his remand decision, the judge attempted to distinguish
the cases discussed in Bernardyn I. The judge stated that the
court's decision in Steinerfilm was inapposite because
"Bernardyn's use of excessive profanity did not follow any
unlawful warning or other unlawful act on the part of
Respondent." 22 FMSHRC at 954 n.1. The judge also declined to
follow Trustees of Boston University because, according to the
judge, "the plain meaning of the words used by Wapinski in
response to Bernardyn's driving slowly due to slippery
conditions, do not contain any threat or animus toward Bernardyn
relating to his protected activity under the Act, i.e., driving
slow due to slippery conditions, and hence were not `wrongful.'"
Id.
We are at a loss to understand the reasoning in support of
these statements. In his initial decision, the judge stated:
"Based on the essentially uncontroverted evidence I find that
Bernardyn engaged in protected activities by driving at a speed
consistent with the road conditions . . . ." 21 FMSHRC at 822
(emphasis supplied). This finding was not before the Commission
in Bernardyn I, was not remanded to the judge, and is the law of
the case. See Lion Mining Co., 19 FMSHRC 1774, 1777 (Nov. 1997)
(holding that on remand, judge may not revisit on appeal portions
of initial decision). The Secretary's mandatory safety standards
require that "[e]quipment operating speeds shall be prudent and
consistent with conditions of roadway, grades, clearance,
visibility, traffic, and the type of equipment used." 30 C.F.R.
� 77.1607(c). It is undisputed that the roadway was not only
pitched at a grade of 8%, ranging in places up to 10.3%, but that
conditions were foggy and misty, the roadway was slippery,
conditions were worsening, a layer of ice later formed on the
road, and the road was shut down within 30 minutes of Bernardyn's
termination after a foreman's truck slid down the haulage road.
Moreover, once Bernardyn communicated to Reading his
reasonable concern about driving faster on the slippery roads,
Reading was obligated to address the perceived danger in a manner
that his fears reasonably should have been quelled. Gilbert v.
FMSHRC, 866 F.2d 1433, 1441 (D.C. Cir. 1989); Metric
Constructors, Inc., 6 FMSHRC 226, 230 (Feb. 1984), aff'd sub nom.
Brock on behalf of Parker v. Metric Constructors, Inc., 766 F.2d
469 (11th Cir. 1985); Sec'y of Labor on behalf of Pratt v. River
Hurricane Coal Co., 5 FMSHRC 1529, 1534 (Sept. 1983). Here, far
from addressing Bernardyn's legitimate safety concerns in a
manner that should have allayed them, Reading exacerbated the
situation by directing Bernardyn to drive faster and then
removing him from the haulage run when he refused. Based on
these uncontroverted facts, if the judge finds it necessary to
reach the provocation issue on remand, he must revisit his
determination that Reading's instruction to Bernardyn to speed up
was not wrongful.
Further, Wapinski's order that Bernardyn drive faster, his
accusation that Bernardyn was holding things up, and his
directive, in compliance with Derrick's instruction to remove
Bernardyn from the haulage run, that Bernardyn meet him at the
dump, were all in response to what the judge found to be
Bernardyn's protected activity - driving at a speed consistent
with road conditions. Whether Wapinski's order to Bernardyn to
essentially operate the haulage truck in an unsafe manner is
itself a "threat" or constitutes "animus" is entirely beside the
point. The judge does not cite any authority for the novel
proposition that an order to work unsafely is insufficient to
constitute provocation.[10]
If the judge addresses the provocation issue on remand, he
must also revisit his characterization of Bernardyn's conduct as
"most egregious." 22 FMSHRC at 955 n.1 (emphasis in original).
The judge based this conclusion on his findings on the duration
of Bernardyn's cursing over the C.B. radio, and the "threat"
uttered by Bernardyn. But as we have already found, substantial
evidence in the record does not support the finding that
Bernardyn threatened anybody, the duration of the episode was due
in part to Derrick's unexplained failure to stop the outburst,
and the fact that others heard the outburst does not materially
distinguish this case from others involving Reading miners.
Bernardyn's conduct was no more serious than the actions of
employees found to have been provoked under the NLRA. See, e.g.,
M & B Headwear, 349 F.2d at 174 (involving employee provoked into
threatening a supervisor and being rude to a vice-president);
Blue Jeans Corp., 170 N.L.R.B. 1425, 1425 (1968) (holding that
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, were
provoked by employer's discriminatory treatment of her).
Moreover, contrary to the judge's finding, neither Commission
precedent nor other case law draws a distinction between
provocative "words" and provocative "actions." In any event, the
direct order by Bernardyn's supervisor to drive faster under poor
road and weather conditions gave Bernardyn the unfortunate choice
of either complying with the order and risking the consequences
to life and limb of driving faster, or disobeying the order and
risking discipline for insubordination. See Anaconda Insulation
Co., 298 N.L.R.B. at 1111, 1113 (holding that supervisor giving
employee "Hobson's choice" to either cross picket line or quit
justified complainant's unprotected cursing and alleged threat).
This order, and indeed the order removing Bernardyn from the
haulage run, effected management action.
In Bernardyn I, the Commission instructed the judge to
consider "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.'" 22 FMSHRC at 307-08. The judge did not directly
address the "leeway" question. 22 FMSHRC at 953-54. On the
other hand, he determined that Bernardyn's statement was "out of
proportion to the one-time, brief statements Wapinski made to
him." Id. at 954.
We observe initially that the judge's reference to "one-time"
statements is puzzling. The record establishes that Wapinski
spoke to Bernardyn on two occasions, during which he ordered
Bernardyn to speed up and directed him to meet Wapinski at the
dump for the purpose of removing Bernardyn from the haulage run.
Further, the judge's characterization is contradicted by the
record in two other respects. As already noted, Wapinski's
response to Bernardyn's protected activity was not only a
"statement," it was a direct order to drive faster under
hazardous road conditions. In addition, the judge's finding
ignores the factual setting in which Bernardyn's outburst
occurred. The Commission specifically noted that it was during
"the complaint to Dodds [when Bernardyn] cursed and made the
allegedly threatening remark." 22 FMSHRC at 307. Yet, in his
discussion of the provocation issue, the judge failed to address
the crucial context in which this incident took place, namely,
the making of a safety complaint by a miner to his committeeman
over an order from management to drive a truck in a manner that
the miner legitimately considered to be unsafe.
We do not mean to suggest that we approve of the profanity
used by Bernardyn, or that he could not have chosen a more civil
(and effective) means of communicating his legitimate safety
concerns to his safety representative. Nevertheless, the
occurrence of this incident in the course of a safety complaint
is a significant factor that the judge should not have ignored.
We conclude that Bernardyn's cursing in the midst of a safety
complaint to his safety committeeman is a factor which mitigates
the seriousness of his cursing and detracts from the judge's
conclusion that Bernardyn's use of profanity was not excusable.
In sum, the record as a whole casts considerable doubt on the
judge's conclusion that Bernardyn's actions were not provoked by
Reading.
**FOOTNOTES**
[5]: A third category of misconduct under the 1987 policy
involved "willful safety violation[s]." Gov't Ex. B at 3.
[6]: Four of the cases involved oral or written warnings.
Gov't Ex. C. In one case, two miners were "fired for refusing to
do a job out of their classification," not for cursing, but were
returned to work one day after a grievance meeting. M. Tr. 28-
30, 36-37.
[7]: This same miner had previously been given two verbal
warnings and a written warning. Gov't Ex. C.
[8]: The Commission has looked to law developed under the
National Labor Relations Act, 29 U.S.C. � 141 et seq. (1994)
("NLRA"), for guidance in interpreting similar provisions of the
Mine Act. See, e.g., Delisio v. Mathies Coal Co., 12 FMSHRC
2535, 2542-45 (Dec. 1990) (recognizing 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").
[9]: Decisions addressing the question whether an employee's
unprotected conduct provides an employer justification for
disciplining the miner have utilized an objective standard. See,
e.g., McQuaide, 552 F.2d at 527 (adopting objective standard
which looks at the relevant circumstances to determine whether
strikers' statements and actions directed towards non-strikers
are sufficiently egregious to justify denying reinstatement of
the strikers); Associated Grocers, 562 F.2d at 1336 (applying
objective standard enunciated in McQuaide).
[10]: The judge also stated that, in contrast to the facts in
M&B Headware, in the present case "there is no evidence of any
unjust and discriminatory treatment of Bernardyn to lead to a
conclusion that any wrongful provocation existed." 22 FMSHRC at
954 n.1. As we have already held, however, the judge's analysis
of the disparate treatment issue was erroneous.
III.
Conclusion
For the foregoing reasons, we vacate the judge's determination
that Reading's discharge of Bernardyn did not violate section
105(c) of the Mine Act. This matter is remanded for further
proceedings consistent with this opinion.
________________________________
Theodore F. Verheggen, Chairman
________________________________
James C. Riley, Commissioner
Commissioner Beatty, concurring:
While I concur in the result reached by my colleagues in the
majority, I write separately to indicate a slightly different
focus on how I would reach this result.
In my view, the resolution of this case should turn on the
judge's finding that Reading's 1987 disciplinary policy was in
effect at the time of Bernardyn's discharge. The 1987 policy
lists only four offenses that warrant an employee's immediate
discharge: stealing, possessing or using intoxicants in the area
of work, carrying weapons on company property, and physical
fighting. Since Bernardyn's cursing incident, which the operator
claims is the reason for his discharge, does not fall within one
of those categories, it is my opinion that the discharge was per
se discriminatory because it violated the company's 1987
disciplinary policy with respect to conduct that warrants
immediate termination of an employee. Therefore, in my view,
this case does not require, in order to show disparate treatment,
a comparison of Bernardyn's cursing with other incidents of
cursing on the job by Reading employees. In a "mixed motive"
analysis, as we have in this case, the judge is required to
examine Reading's affirmative defense (cursing on the job) to
determine if the company's actions were out of line with their
normal business practices. Since Bernardyn was discharged
immediately - a practice that violates Reading's own disciplinary
policy - I see no need to compare him to the other employees to
determine disparate treatment. Indeed, I cannot think of any
situation that more clearly illustrates an operator being "out of
line with normal business practices" than one where the company
ignores its own disciplinary policy in the discharge of an
employee.
In accordance with this alternative approach, I would instruct
the judge, on remand, to consider his finding that Reading's 1987
disciplinary policy was then in effect in deciding whether
Bernardyn was discharged in violation of section 105(c) of the
Mine Act. Although I would normally go no further than this
single instruction, I nevertheless join Chairman Verheggen and
Commissioner Riley in their remand instructions so that we may
dispose of this case with a clear majority.
Robert H. Beatty, Jr., Commissioner
Commissioner Jordan, dissenting:
I stated in Bernardyn I that section 105(c) of the Mine Act
precludes an operator from firing a miner for peripheral
statements made while reporting a hazardous condition to a safety
committeeman, unless the complaint was made in such a
reprehensible manner that the miner is no longer entitled to the
protection afforded by that statutory provision. 22 FMSHRC 298,
309-16 (Mar. 2000). In reaching that conclusion, I relied on
Caterpillar Inc., 322 N.L.R.B. 674 (1996) in which the National
Labor Relations Board ruled 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.'" Id. at 677 (quoting
Crown Cent. Petroleum Corp. v. NLRB, 430 F.2d 724, 731 (5th Cir.
1970)) (emphasis in original) (citation omitted). My opinion
also referred to Secretary of Labor on behalf of Knotts v.
Tanglewood Energy, Inc., 19 FMSHRC 833, 840 (May 1997), in which
the Commission held that, because a discharged miner's protected
safety concerns were expressed in the same conversation as his
disparaging views about mine management, the employer bore the
risk that the influence of legal and illegal motives could not be
separated.
In Bernardyn I, I wrote that one could not reasonably conclude
from the record in this case that Bernardyn's conduct, in the
context of the safety complaint involved here, was so
indefensible as to deprive him of the protection afforded under
the Act. 22 FMSHRC at 311. Accordingly, I stated my view that
Reading's affirmative defense failed and that the judge's
decision should be reversed. Id. at 315. That conclusion is now
bolstered by the judge's finding that the 1987 disciplinary
policy was in place at the time of Bernardyn's termination, 22
FMSHRC 951, 952-53 (Aug. 2000) (ALJ), and by my colleagues'
finding that Reading violated this policy in terminating
Bernardyn, slip op. at 9, 18. Moreover, my colleagues' rejection
of several of the findings upon which the judge based his
decision on remand serves to reinforce my earlier view as to the
conclusions that could reasonably be drawn from the evidence in
this case.[1]
**FOOTNOTES**
[1]: Chairman Verheggen and Commissioner Riley reject the
judge's finding that because Bernardyn's cursing episode took
place over the CB radio, it was materially distinguished from
previous cursing incidents involving other employees. Slip op.
at 9-10. They also reject his finding that Bernardyn threatened
his supervisor, id. at 11, and that Reading did not treat
Bernardyn more harshly than other employees who were not
terminated for cursing, id. at 12. They have also determined
that several facts in the record detract from the judge's
conclusion that Reading did not provoke Bernardyn's cursing. Id.
at 14. Indeed one wonders why, given these findings, my
colleagues find it necessary once again to remand this case to
the judge instead of reversing his decision.
For the foregoing reasons, I again conclude that a remand in
this case would serve no purpose, and I would therefore reverse
the judge's decision and find in favor of Bernardyn.
________________________________
Mary Lu Jordan, Commissioner
Distribution
Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
450 West Market St.
P.O. Box 450
Pottsville, PA 17901
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