<DOC>
[DOCID: f:west93336.wais]
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
January 29, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket Nos. WEST 93-336-DM
ADMINISTRATION (MSHA) : WEST 93-337-DM
on behalf of JAMES HYLES, : WEST 93-338-DM
DOUGLAS MEARS, DERRICK : WEST 93-339-DM
SOTO, and GREGORY DENNIS : WEST 93-436-DM
: WEST 93-437-DM
v. : WEST 93-438-DM
: WEST 93-439-DM
ALL AMERICAN ASPHALT : WEST 94-021-DM
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY: Jordan, Chairman; Marks, Riley and Beatty, Commissioners
These discrimination proceedings, arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq. (1994) ("Mine Act" or "Act"), are before the
Commission for a second time on cross-petitions for
discretionary review filed by All American Asphalt ("AAA")
and the Secretary of Labor. Both parties seek review of a
decision on remand by Administrative Law Judge August Cetti
involving two layoffs of miners James Hyles, Douglas Mears,
Derrick Soto, and Gregory Dennis. In his first decision in
this proceeding, the judge found that a failure to recall
the complainants following a 1992 layoff and a subsequent
layoff in 1993, after complainants had been reinstated, were
discriminatory and violated section 105(c) of the Mine Act,
30 U.S.C. � 815(c). 16 FMSHRC 2232 (Nov. 1994) (ALJ).
The Commission granted AAA's petition for discretionary
review of the judge's decision, and the Secretary thereafter
moved to remand the case to the judge for further findings
and conclusions. The Commission issued its decision in which
it vacated the judge's decision and remanded the case for
further consideration. 18 FMSHRC 2096 (Dec. 1996) ("All
American Asphalt I"). The judge subsequently issued his
second decision, in which he concluded that AAA's failure to
recall the complainants following the 1992 layoff was
violative; however, he reversed his prior determination that
the 1993 layoff violated the Act. 19 FMSHRC 855 (May 1997)
(ALJ). The Commission granted petitions for discretionary
review ("PDRs") of the judge's remand decision filed by AAA
and the Secretary.
For the reasons that follow, we affirm the judge's
determination that AAA's refusal to recall the complainants
following the July 1992 layoff violated section 105(c) of the
Mine Act. However, we reverse the judge's determination that
the March 1993 layoff did not violate section 105(c).
I.
Factual and Procedural Background
AAA is a general contractor in Corona, California that
operates an asphalt plant, a quarry, and a plant that produces
rock-based aggregates for its own use and for sale to other
contractors. Tr. 1136-39. In April 1991, AAA was in the
process of completing an addition to its rock finishing plant.
16 FMSHRC at 2235. On Thursday, April 18, Hyles, a leadman
on AAA's third ("graveyard") shift, learned that AAA intended
to start running the new plant even though some safety
equipment was not in place. Id. Hyles voiced his concern
about safety conditions in the plant to Mike Ryan, plant
supervisor and a vice-president at AAA. Tr. 314-16, 319,
1131, 1231. Hyles also spoke to Patrick McGuire, business
representative of Local 12 of the International Union of
Operating Engineers ("Operating Engineers"), which represented
AAA's employees. 19 FMSHRC at 856; 16 FMSHRC at 2235; Tr.
175. Thereafter, McGuire visited the plant and observed it
running without numerous pieces of safety equipment in place.
16 FMSHRC at 2235; Tr. 177-78.
During the weekend of startup operations, Ryan assigned
Hyles to work as leadman on a combined second and third shift.
16 FMSHRC at 2235-36. When Hyles reported to work on Friday,
April 19, at 7:00 p.m., he saw equipment lacking guards,
ladders, catwalks, decks, handrails, and trip cords. Id.
Dennis, Mears, and Soto, who worked under Hyles on the
temporary combined production shift during the startup weekend,
complained to Hyles and Gerald Richter, the other leadman on
the combined shift, concerning plant conditions. Tr. 338, 370,
685, 826, 957, 2257. Hyles warned them to be careful. Tr. 339.
On the evening of Saturday, April 20, Hyles videotaped the
plant in operation and spoke to Dennis, Mears, and Soto, among
others, about the conditions at the plant. 16 FMSHRC at 2236;
Tr. 339, 365-66. Numerous employees, including leadman
Richter, observed Hyles openly videotaping the plant.
Tr. 365-66.
On Sunday night, Hyles was involved in a minor accident
when he fell through a gap in the decking. Tr. 367-70; Gov't
Ex. 23. Later during the shift, Hyles spoke to Dennis, Mears,
and Soto about taking the videotape to the field office of the
Department of Labor's Mine Safety and Health Administration
("MSHA"). They all agreed that the plant's condition posed
dangers to employees and that the tape should be turned in
to MSHA. 16 FMSHRC at 2236; Tr. 370. On Monday morning,
after his shift ended, Hyles went to the MSHA field office
and turned in the videotape. 16 FMSHRC at 2236; Gov't Ex. 54;
Tr. 370, 373. After viewing the videotape, MSHA inspectors
went to the AAA plant and saw it in operation. 16 FMSHRC
at 2236. Subsequently, MSHA issued numerous citations,
including 29 citations alleging unwarrantable failure, and
shut down the plant for nearly a week. Id.; Tr. 55, 375, 1187.
Later that day, Ryan called Hyles at home and told him not
to report to work that evening because someone had reported
the condition of the plant to MSHA. 16 FMSHRC at 2236.
On April 27, the day the plant reopened, Ryan asked Hyles
and leadman Gerry White "if they had any idea who `turned him
in' and . . . told them he wanted to find out who it was and
that he would make it so miserable for them, they would be
happy to go work someplace else." 19 FMSHRC at 856-57, 862;
see Tr. 375. While AAA president William Sisemore was in the
plant office, Hyles heard him say he would like to "find out
who was causing him all the problems and that he would make
it worth their while to seek employment elsewhere." 19 FMSHRC
at 862. While operating the plant, AAA miner William Smillie
overheard Ryan and Sisemore say that they "would like to know
who filed the hazard complaint so they could make it worthwhile
for them to leave." Id.; Tr. 504.
In June 1991, during a subsequent MSHA investigation,
Hyles, Dennis, Mears, and Soto, in addition to other employees,
were interviewed in an investigation into Ryan's conduct under
section 110(c), 30 U.S.C. � 820(c).[1] 16 FMSHRC at 2237;
Gov't Exs. 2-5.
In October 1991, Hyles was demoted from his position of
leadman to that of loader operator. 16 FMSHRC at 2237; Tr.
130-31. When he asked Ryan why he was being demoted, Ryan
responded that they "didn't see eye to eye anymore." Tr. 394.
On or about July 8, 1992, due to an equipment move, AAA
laid off 16 of its 27 employees, including Hyles, Dennis,
Mears, and Soto. See Gov't Exs. 14, 15; Tr. 403, 704. On
July 24, MSHA issued its proposed penalty assessment, which
was addressed to Ryan, with fines in excess of $45,000. Gov't
Ex. 53; Tr. 1600. Sometime after the initial layoff, Ryan
purportedly decided that he needed to cut back the workforce
for economic reasons. Tr. 1295-96. By the end of August,
AAA had recalled every employee but the four complainants.
16 FMSHRC at 2238. In addition, some employees worked overtime
during the period the complainants were on layoff.[2] Id. When
Hyles and Soto went to the plant and saw less senior employees
working, all four complainants filed grievances under the
collective bargaining agreement between AAA and the Operating
Engineers. Id. The complainants contended that AAA failed
to comply with the contract requirement that it conduct a
"bumping" meeting prior to layoffs, where employees could bid
on jobs held by less senior employees and bump those employees
out of jobs for which a more senior employee was qualified.
Id. at 2238-39. The grievances went to arbitration, and, in
December, the arbitrator found that AAA had violated the
contract by laying off employees without conducting a bumping
meeting. Id. at 2238. However, the arbitrator concluded that
only Hyles possessed the qualifications to bump a less senior
employee, and only granted relief to Hyles. Id.; Gov't Ex. 51
at 11-14.
In September 1992, while the grievances were being
processed, Hyles, Dennis, Mears, and Soto filed
discrimination complaints with MSHA. 16 FMSHRC at 2239;
Gov't Exs. 20, 33, 38, 43. Following the institution of
temporary reinstatement proceedings, AAA reinstated the four
complainants on February 11, 1993. 16 FMSHRC at 2239-40.
Upon their reinstatement, the complainants were assigned
to perform production work on the day shift. Id. at 2240.
In early March 1993, AAA reestablished a third shift as a
result of decreased production due to wetness of material
that was being processed through the plant. Id. AAA
temporarily assigned four of its most senior plant repairmen
to perform production work, while paying them at the higher
rate of pay they had received as repairmen. 19 FMSHRC at 858.
AAA then moved the primary production shift to the day shift,
and moved the maintenance shift to the night shift. See Tr.
990. Three weeks later, on March 23, AAA discontinued the
third shift and announced a layoff. 16 FMSHRC at 2240. Rather
than reassigning the four repairmen to their prior positions,
AAA required the repairmen to participate in a bumping meeting.
Id. Instead of bumping into repair positions, they bumped
each of the complainants, selecting the production positions
held by Hyles, Dennis, Mears, and Soto. Id. at 2240-41.
AAA subsequently hired new employees to fill the vacant
repairman positions. Id. at 2242; Tr. 457, 480-81, 1693.
The following day, the four complainants were called into
a layoff meeting and told that each of them had been bumped by
a more senior employee and that they would be permitted to bid
on jobs held by less senior employees. 16 FMSHRC at 2241.
They were reluctant to exercise their bumping rights at the
meeting for fear that Ryan would treat them as unqualified and
refuse to allow them to bump into other jobs. Id. Hyles and
Soto requested that they be given time to consult with counsel
from the Solicitor's office because of the pendency of their
discrimination complaints. Id. They were permitted to speak
with counsel, but were not informed that, by delaying the
exercise of their bumping rights, they had forfeited those
contractually protected rights. See id. Shortly after the
meeting, Operating Engineers business agent McGuire called Ryan
to inform him that Hyles had decided to bump into the plant
operator position. Id. Ryan refused the request, stating that
it was untimely. Id. AAA refused to accept any of the
complainants' subsequent written requests to bump for the
same reason. Id.
Following the second layoff, Hyles, Dennis, Mears, and
Soto each filed a second discrimination complaint. Id. at
2242; Gov't Exs. 21, 34, 39, 44. On April 26, 1993, after
MSHA had initiated temporary reinstatement proceedings, the
complainants were reinstated by agreement of the parties;
however, after their reinstatement, management frequently
gave the complainants reduced working hours. 16 FMSHRC at
2242. In April 1993, AAA began hiring ten new employees and
increased its output of finished material. Id. In August
1993, AAA posted a seniority list indicating that Dennis,
Mears, and Soto had seniority dates of January 1993. Id.
When Mears asked why the seniority list did not reflect his
original hire date, Ryan responded that Mears had no
seniority. Id. This was the first time the complainants
were told that AAA had removed their seniority.
A. Judge's Decision
The Secretary issued four complaints for each of the two
layoffs, and an eight-day hearing was held. At the close of
the hearing, the judge issued a bench decision granting the
complainants temporary reinstatement, and a written decision
followed. 16 FMSHRC 31 (Jan. 1994) (ALJ). Thereafter, the
judge issued his decision on the merits of the complaints.
Initially, the judge dismissed several procedural defenses
raised by AAA, including its argument that the complainants'
discrimination claims were time barred under the Mine Act and
that the discrimination complaints were preempted by the
National Labor Relations Act, 29 U.S.C. � 141 et seq. (1994).
16 FMSHRC at 2233-35.
The judge then addressed Hyles' October 1991 demotion from
his leadman position to a journeyman loader position. Id. at
2247. The judge found that, at the time of the demotion, AAA
had no knowledge that Hyles had "turned in" Ryan and AAA to
MSHA, but that Ryan "had received credible substantiation of
the rumors of Hyles' on the job misconduct," including "sleeping
on the job and possible time card fraud." Id. Accordingly,
the judge determined that AAA did not violate section 105(c)
when it demoted Hyles from his leadman position. Id.
With regard to AAA's July 1992 layoff and its subsequent
recall of the entire workforce except the four complainants,
the judge found that sometime prior to the layoff, AAA became
aware of the complainants' protected activity. Id. He also
found that AAA's failure to recall the complainants constituted
adverse action, and he concluded that AAA's refusal to recall
the complainants was "to obscure its discriminatory animosity
towards the Complainants." Id.
Finally, the judge considered the circumstances surrounding
AAA's unusual post-reinstatement manipulation of job shift
assignments which culminated in the bumping of the complainants
from their positions in March 1993. Id. at 2248. The judge
found that "this convoluted series of work assignments was
contrived by Respondent to terminate the Complainants, while
appearing to comply with the contractual requirement of holding
a meeting with the union." Id. The judge concluded that,
based upon reasonable inferences drawn from the record, AAA
discriminated against the complainants in March 1993 in
violation of section 105(c) of the Mine Act. Id. at 2249.
AAA petitioned the Commission for review of the judge's
decision.
B. All American Asphalt I
The Commission remanded the judge's decision and ordered
him to address specified issues and evidence not considered or
enunciated in his initial decision. All American Asphalt I,
18 FMSHRC 2096. We instructed the judge to explain the
extent to which he relied on the arbitration decision to
reach his determinations concerning the first set of layoffs
and AAA's failure to recall the complainants. Id. at 2101.
We also instructed the judge to apply the Commission's
Pasula-Robinette discrimination framework: whether the
complainants established a prima facie case, and whether AAA
rebutted or affirmatively defended against the prima facie
case. Id. at 2102. We called upon the judge to make
findings regarding the nature of the complainants' protected
activity preceding each of the layoffs, and to state whether
there was a nexus between the protected activity and the
layoffs. Id. We directed him to reconcile his finding that
AAA was unaware of Hyles' protected activity prior to his
October 1991 demotion with his finding that AAA was aware of
the protected activity of all four complainants prior to the
July 1992 layoff. Id. We further ordered the judge to
address, with regard to both the 1992 and the 1993 layoffs,
AAA's asserted defenses and any related evidence to
determine whether the defenses were valid or merely
pretextual. Id. Finally, we ordered the judge to render
credibility determinations related to "alleged statements
and inquiries of AAA officials concerning miners' protected
activities, AAA's asserted economic and contractual
defenses, and the complainants' qualifications for available
jobs." Id. at 2102-03.
C. Judge's Remand Decision
On remand, the judge addressed the existence of protected
activity, whether the operator was aware of the protected
activity, and whether there was a nexus between the protected
activity and the subsequent layoff. 19 FMSHRC at 855. With
regard to the July 1992 layoff, the judge concluded that the
protected activity consisted of Hyles' videotaping of the plant
conditions; the safety complaints of Soto, Mears, and Dennis to
Hyles and leadman Richter; and Soto, Mears, and Dennis agreeing
that Hyles should turn the videotape in to MSHA. Id. at 860,
864. The judge found that AAA was aware of the complainants'
protected activity. Id. at 860. He also determined that the
threats of retaliation directed towards the individuals whose
complaints led to the citations against AAA, coupled with the
layoffs of the four complainants, constituted the nexus required
to support a finding of a 105(c) violation. Id. at 860, 863,
865. He further concluded that AAA's claim that it did not call
back the complainants to work because they were not qualified
was pretextual. Id. at 866. Because he found that the initial
layoff was discriminatory, he held that it did not affect the
complainants' seniority. Id. at 865.[3]
In addressing the propriety of the March 1993 layoffs, the
judge described the complainants' protected activity as "taking
an active part in the Section 110(c) investigation of the plant
supervisor, Ryan," as well as their "April 1991 protected
activity." Id. at 861. He found that AAA was aware of this
protected activity. Id. He concluded that the second set of
layoffs was not motivated by the complainants' involvement in the
section 110(c) investigation or filing their second set of
discrimination complainants. Id.[4] He concluded instead that
it was motivated by the protected activity which led to the first
set of layoffs. Id. Because the judge concluded that there was
no nexus between the second set of layoffs and the complainants'
role in the 110(c) investigation, he found no discrimination and
dismissed the complaints. Id.
In a separate section of his decision, the judge addressed
credibility. Id. at 861-62. He broadly credited miner Smillie's
testimony, specifically finding that Smillie heard AAA president
Sisemore and vice-president Ryan discuss their desire to find out
who turned them in so that they "could make it worthwhile for
[those responsible] to leave" AAA. Id. at 862. The judge
credited Hyles' testimony that both Ryan and Sisemore threatened
to make the working conditions more difficult for the individuals
who notified MSHA of safety violations at the plant. Id. The
judge credited the testimony of all four complainants, including
their testimony as to their respective qualifications for
available positions, and discredited Ryan's testimony regarding
the complainants' qualifications. Id. The judge also broadly
credited the testimony of McGuire and Martin Collins, the
business representatives for the Operating Engineers. Id.
Finally, the judge addressed the arbitrator's decision and
indicated that he accorded it no weight. Id. at 863.
Accordingly, he did not consider the arbitrator's findings on the
issue of the complainants' qualifications for available
positions. Id.
II.
Disposition
A. Parties' Arguments
The Secretary appeals from the judge's dismissal of the
complaints relating to the March 1993 layoffs. S. PDR at 1-2.[5]
The Secretary submits that the Commission should, as a matter of
law, reverse the judge's finding that the 1993 layoff did not
violate section 105(c). Id. at 10-11. The Secretary notes that
the judge specifically found that AAA manipulated the seniority
list in March 1993 for the purpose of terminating the
complainants in retaliation for their protected activities that
resulted in the plant shutdown, the 29 unwarrantable failure
citations, and the subsequent section 110(c) investigation
against Ryan. Id. at 7. Further, the Secretary argues that,
because she never alleged that the March 1993 layoff was
motivated solely by the complainants' participation in the
section 110(c) investigation, the judge incorrectly relied on the
lack of a causal nexus between that participation and the layoff
in dismissing the second set of dockets. Id. at 9.
In its petition for discretionary review,[6] AAA contends
that the judge did not comply with the Commission's remand
instructions by failing to make key factual findings and by
failing to explain the basis for his credibility resolutions. A.
PDR at 7-13. The operator further asserts that the Secretary
failed to show that AAA knew of Hyles' protected activity. Id.
at 6-7. AAA also alleges that the complaints of Dennis, Soto,
and Mears to leadmen Hyles and Richter do not constitute
protected activity because leadmen are not supervisors or members
of management. Id. AAA argues that the fact that every other
employee was interviewed by MSHA investigator Mesa without
suffering retaliation weighs against a finding that AAA
retaliated against the complainants. Id. at 24. In addition,
AAA asserts that the judge failed to reconcile his finding of
discrimination related to the July 1992 layoff with the
arbitration decision under the collective bargaining agreement.
Id. at 27-29, 47-48, 67, 69. Finally, AAA objects to the civil
penalties ordered by the judge. Id. at 73-74.
In response, the Secretary argues that leadmen Hyles and
Richter were agents of the operator within the meaning of section
105(c), and that the concerns voiced by complainants Mears, Soto,
and Dennis to the leadmen constitute protected Mine Act activity.
S. Resp. Br. at 15-18 & n.6. The Secretary submits that analysis
of the circumstances surrounding both layoffs
establishes that the bumping procedure of March 1993 violated
section 105(c). Id. at 19-22. The Secretary asserts that, while
AAA's defenses should be rejected, the judge's failure to analyze
AAA's affirmative defenses warrants a remand for further
analysis. Id. at 22-24 & nn.7-8. The Secretary also contends
that the judge's failure to address the complainants'
qualifications for available positions requires a remand to
analyze this issue. Id. at 24-25. Further, the Secretary argues
that, while AAA's economic defense is unconvincing, the
Commission should remand this question to the judge with
instructions to make specific findings on this issue. Id. at 25-
26. Finally, the Secretary requests a remand to allow the judge
to explain the bases for his credibility determinations. Id. at
26-27.
AAA replies that the Secretary has failed to rebut AAA's
evidence of inconsistencies in the complainants' hearing
testimony. A. Reply Br. at 1-2, 14-15. AAA also claims that the
15-month delay between the alleged protected activity in April
1991 and the alleged adverse action against the complainants in
July 1992 is too long a period to establish the nexus required
for a finding of discrimination. Id. at 10-11 & n.7. AAA
submits that the ALJ's finding that it "manipulated the shift and
job assignments in March of 1993" to terminate the complainants
is "based upon nothing more than supposition and speculation" and
contradicts his prior finding that the March 1993 discharge was
not in retaliation for the complainants filing discrimination
complaints. Id. at 12-13. AAA contends that, even assuming the
Secretary is able to establish a prima facie case of
discrimination, the complainants declined to exercise their
bumping rights and were unqualified to fill the open positions.
Id. at 13. Finally, AAA argues that the Secretary failed to
rebut AAA's economic justification for the March 1993 layoff.
Id. at 14 & n.10.
B. Discrimination
1. Governing Principles
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 Secretary of Labor on behalf of Pasula v. Consolidation 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); 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 (4th Cir.
1987) (applying Pasula-Robinette test).
Under the Mine Act, an administrative law judge's findings
of fact are to be affirmed if they are supported by substantial
evidence. 30 U.S.C. � 823(d)(2)(A)(ii)(I); Secretary of Labor on
behalf of Price v. Jim Walter Resources, Inc., 14 FMSHRC 1549,
1555 (Sept. 1992).[7] In addition, the Commission has held that
"the substantial evidence standard may be met by reasonable
inferences drawn from indirect evidence." Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984). The
"possibility of drawing either of two inconsistent inferences
from the evidence [does] not prevent [the judge] from drawing one
of them." NLRB v. Nevada Consolidated Copper Corp., 316 U.S.
105, 106 (1942). The Commission has emphasized that inferences
drawn by the judge are "permissible provided they are inherently
reasonable and there is a logical and rational connection between
the evidentiary facts and the ultimate fact inferred." Mid-
Continent, 6 FMSHRC at 1138.
2. July 1992 Layoff
a. Prima Facie Case
The judge found that the complainants engaged in protected
activity, that AAA learned of the complainants' protected acts
and that AAA expressed hostility to this activity before failing
to recall them in July or August 1992, and concluded that a nexus
existed between the protected activity and AAA's failure to
recall. 19 FMSHRC at 860-65. However, he did not frame his
analysis in a manner consistent with the Commission's Pasula-
Robinette analytical framework. Previously, we have excused a
judge's failure to apply our discrimination framework, provided
the judge's analysis was consistent with this framework.
Secretary of Labor on behalf of Dunmire v. Northern Coal Co., 4
FMSHRC 126, 130 n.11 (Feb. 1982) (holding that, because judge's
analysis was consistent with the Commission's discrimination
framework, his failure to organize his analysis within that
framework did not require a remand for express application of
that analysis).[8] Although the judge's analysis in his remand
decision was not formulated within our Pasula-Robinette
framework, he has provided us with findings sufficient to render
a remand unnecessary.
In July 1992, AAA laid off sixteen employees due to an
equipment move. 16 FMSHRC at 2238. Over the course of the next
several weeks, AAA recalled all of the laid-off workers except
the complainants. Id. Thus, what started as a temporary layoff
for AAA's employees became, in effect, a permanent layoff of
Hyles, Mears, Dennis, and Soto. See All American Asphalt I, 18
FMSHRC at 2098. It is undisputed that the four suffered an
adverse employment action. The main issue on review is whether
that employment action was linked to protected activity under the
Mine Act.
Based on our review of the credited record evidence,
substantial evidence supports the judge's conclusion that each
of the complainants engaged in protected activity. Initially,
Hyles, while assigned to work as a leadman for a combined
production shift during the weekend of the plant startup
operation, complained to Ryan about plant conditions he
perceived as dangerous. Tr. 316, 319. He also discussed the
plant conditions with Richter. Tr. 338. The record further
shows that he openly videotaped the plant startup in the presence
of numerous other employees, turned in the tape to MSHA, and
complained to MSHA about the hazards the plant conditions posed
to himself and others. Gov't Exs. 1, 54. Thus, Hyles instigated
the events that led to the plant shutdown by MSHA and the
issuance of $45,000 in penalties in July 1992. Later, Hyles
cooperated as a witness during MSHA's section 110(c)
investigation of Ryan. Gov't Ex. 2.
Similarly, the actions of complainants Dennis, Mears, and
Soto constitute protected activity under the Act. Dennis, Mears,
and Soto were on Hyles' crew, working under his supervision in
the finishing plant during the startup weekend. 16 FMSHRC at
2236. Each of them conferred with Hyles and supported his
efforts to complain to MSHA about unsafe plant conditions. Tr.
338, 366, 370. Furthermore, each of them complained directly to
leadman Richter regarding the plant conditions. Tr. 685, 826,
957, 2257. In Hyles' initial statement to MSHA, he identified,
inter alia, Dennis, Mears, and Soto as witnesses.[9] Gov't Ex. 2
at 1. Finally, these three complainants, along with other AAA
employees, gave statements to the MSHA investigator when he came
to interview miners at AAA's facility. 16 FMSHRC at 2237; Gov't
Exs. 2-5. In short, substantial evidence supports the judge's
finding that the four complainants engaged in activities
protected under section 105(c) of the Mine Act. See 30 U.S.C.
� 815(c)(1).
AAA's assertion that the complaints of Dennis, Mears, and
Soto to leadmen Richter and Hyles do not constitute protected
activity because leadmen are not supervisors or members of
management conflicts with our precedent. In determining whether
a miner is an operator's agent, we have examined such factors as
whether the miner was exercising managerial or supervisory
responsibilities at the time the allegedly violative conduct
occurred (U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct. 1995)) and
whether the miner to whom a safety complaint was made
was in a position to affect mining operations and, hence, safety.
Secretary of Labor on behalf of Knotts v. Tanglewood Energy,
Inc., 19 FMSHRC 833, 837 n.5 (May 1997). Here, Hyles described
the duties of leadmen as including being "responsible for the . .
. shift . . . and in charge of the employees to see that they did
their assigned jobs." Tr. 278-79. As leadmen, Richter and Hyles
acted in a supervisory capacity and were in a position to affect
safety, and, therefore, were "agents" of the operator to whom
employees would logically voice their complaints. Thus, the
safety complaints of Mears, Dennis, and Soto to Hyles and Richter
were protected activity under the Act. See Knotts, 19 FMSHRC at
837 n.5.
We also find that substantial evidence supports the judge's
finding that AAA's failure to recall the complainants was in
retaliation for their protected acts. As the judge noted,
"[d]irect evidence of actual discriminatory motive is rare." 19
FMSHRC at 860. "[M]ore typically, the only available evidence is
indirect. . . . `Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence.'" Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) (quoting NLRB v.
Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)), cited
in 19 FMSHRC at 860; see also Bradley v. Belva Coal Co., 4 FMSHRC
982, 992 (June 1982) ("[C]ircumstantial evidence . . . and
reasonable inferences drawn therefrom may be used to sustain a
prima facie case of discrimination.").
Against the backdrop of AAA's pronounced hostility to
employees' protected acts (19 FMSHRC at 862-63), the record
fully supports the judge's inference that AAA ascertained the
complainants' identities. See id. at 864. Many of Hyles'
protected acts, including his complaints to Ryan and his
videotaping of the plant were open and highly visible to AAA.
Indeed, Hyles did not try and hide his videotaping, and conversed
with leadman Richter, inter alia, as he videotaped. See Gov't
Ex. 54. In this regard, leadman White, who testified on behalf
of AAA at the hearing, stated that it was generally known that
Hyles had turned in his videotape to MSHA. Tr. 2077-79. In
addition, Richter, another one of AAA's witnesses, testified that
he told Ryan that Hyles had a video camera present at the plant
during startup weekend. Tr. 2163. Even more significantly, Ryan
testified that he knew that Hyles had videotaped the plant and
that he suspected that Hyles had turned in the tape to MSHA. Tr.
1535, 1539. Moreover, given the small size of the AAA plant, and
management's desire to discover the identities of those who
turned AAA in, it is reasonable to infer that the operator knew
about Hyles' role in turning in the videotape and complaining to
MSHA. See Chauffeurs, Teamsters and Helpers, Local 633 v. NLRB,
509 F.2d 490, 497 (D.C. Cir. 1974) (holding that existence of
only six employees in bargaining unit is circumstantial evidence
that protected activities would come to the attention of
management).[10] In sum, credited record evidence supports the
judge's inference that AAA knew of Hyles' protected activity
under the Mine Act by the time of the July 1992 layoff.[11]
It was also reasonable for the judge to infer that AAA knew
of the protected activity of Dennis, Mears, and Soto. Id. Each
had worked under Hyles in the finishing plant during the weekend
before MSHA shut down the plant on the morning of April 22. 19
FMSHRC at 864-65. Each had complained about plant conditions to
Richter. Tr. 685, 826, 957, 2257. Indeed, by the time of the
investigation, they, along with leadman Richter, were the only
employees still employed at AAA who had worked with Hyles during
the start-up operations in the finishing plant. See Tr. 337,
379, 548, 2248-54. Richter, to whom they had voiced their
complaints, testified on behalf of AAA at the hearing. Tr. 2118-
88. Further, there is nothing in the record indicating that any
AAA employees other than Dennis, Mears, Soto, and Hyles
complained to Richter about the plant conditions during the
startup weekend. Finally, Ryan's knowledge of the pivotal role
that statements from the three played in the MSHA investigation
is borne out by the fact that Ryan solicited Dennis to write a
letter to MSHA, while he was on layoff in May 1991, that would
support Ryan's claim that no employees were exposed to unguarded
equipment during the startup weekend.[12] Tr. 841-44. In view
of these facts, we find that it was reasonable for the judge to
infer that AAA had determined that, in addition to Hyles,
complainants Dennis, Mears, and Soto had engaged in the protected
activity that caused it so much trouble. 19 FMSHRC at 865; see
Teamsters v. NLRB, 509 F.2d at 497.
We reject AAA's argument that the lapse of time between the
April 1991 complaint to MSHA and the July 1992 layoff undercuts
any finding that its failure to recall the complainants was in
response to protected activity. A. Reply Br. at 10-11 & n.7. We
"appl[y] no hard and fast criteria in determining coincidence in
time between protected activity and subsequent adverse action
when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such
coincidence in time." Hicks v. Cobra Mining, Inc., 13 FMSHRC
523, 531 (Apr. 1991). Significantly, in reviewing the record in
response to this argument, we note an element of timing on which
the judge did not rely in making his determination of
discrimination.[13] On July 24, 1992, four days after AAA began
recalling employees it had laid off (see Gov't Ex. 15), MSHA
issued a proposed penalty of $45,000 against AAA in an assessment
addressed to Ryan.[14] Gov't Ex. 53. By August 3, 1992, Ryan
had signed a notice of contest that was returned to MSHA. Gov't
Ex. 57. These penalties provide the proverbial "straw that broke
the camel's back," and coincide in time with the transformation
of a temporary layoff for an equipment move to a layoff of
unlimited duration for only the complainants. As we noted in
Chacon, "[a]dverse action under circumstances of suspicious
timing taken against the employee who is [a] figure in protected
activity casts doubt on the legality of the employer's motive
. . . ." 3 FMSHRC at 2511.
In sum, substantial evidence supports the judge's finding
that the complainants engaged in protected activity, that AAA
knew of this activity prior to the July 1992 layoff, and that
this layoff was implemented in response to the complainants'
protected activity. The judge's ultimate finding of
discrimination necessarily implied a finding that the Secretary
established a prima facie case of discrimination. See Boswell
v. National Cement Co., 14 FMSHRC 253, 259-60 (Feb. 1992)
(recognizing from judge's conclusion of discrimination an
implicit finding that complainant's disqualification constituted
adverse action). Accordingly, we find that substantial evidence
supports the judge's implicit finding that the Secretary
established a prima facie case of discrimination regarding
AAA's failure to recall the complainants. See Dunmire, 4 FMSHRC
at 130 n.11.
b. Affirmative Defense
AAA argues that it did not recall the complainants -
effectively terminating their employment - because they were
not qualified for any positions held by less senior employees.[15]
The judge rejected this defense and concluded that AAA's refusal
to recall the complainants violated section 105(c). 19 FMSHRC
at 860-61. Substantial evidence supports the judge's conclusion.
"[P]retext may be found, for example, where the asserted
justification is weak, implausible, or out of line with the
operator's normal business practices." Secretary of Labor on
behalf of Price v. Jim Walter Resources, Inc., 12 FMSHRC 1521,
1534 (Aug. 1990) (citing Haro v. Magma Copper Co., 4 FMSHRC 1935,
1937-38 (Nov. 1982)). As we stated in Price, "[u]ltimately, the
operator must show that the justification is credible and would
have legitimately moved it to take the adverse action in
question." Id.
It is undisputed that each of the complainants contacted AAA
on numerous occasions regarding the duration of and reasons for
the layoff. Tr. 403, 706-07, 848, 976-77. It is also undisputed
that AAA never told any of the complainants at the time of the
layoff that lack of qualification prevented any of them from
being recalled. Tr. 407, 708, 849, 978, 1600-03. In fact, the
record does not indicate that AAA's management ever told the
complainants that they were disqualified from available
positions. See Tr. 1601, 2085 (testimony of Ryan and White that
they never told complainants that they had been disqualified from
available positions).[16] Further, as the judge found (19 FMSHRC
at 863), in implementing the July 1992 layoff, AAA violated its
collective bargaining agreement and thereby avoided holding a
contractually mandated bumping meeting where AAA would have been
required to address the complainants' qualifications. AAA's
consistent failure to tell the complainants, upon repeated
inquiry by each of them during the July-August 1992 layoff
period, that they were unqualified for available work supports
the judge's conclusion (id. at 866) that lack of qualification
was not the real reason for AAA's refusal to recall them, but
rather a pretext. See Price, 12 FMSHRC at 1534.
Substantial record evidence also supports the judge's
finding that the complainants were, in fact, qualified for
available positions. First, each of the complainants testified
that he had completed the union's apprenticeship training program
and had performed a variety of operations
at AAA. See Tr. 280-92, 658-60, 796-801, 934-45;[17] see also
Tr. 199-201, 236-38 (McGuire testifying that the complainants had
performed numerous other tasks at AAA and were qualified to
perform tasks outside their respective classifications). Second,
in refusing to recall the complainants, AAA inexplicably deviated
from its routine practice of allowing its employees to become
qualified for various job classifications through on-the-job
training. See, e.g., Tr. 299, 500, 662, 799-800, 946-47, 1656-59
(discussing AAA's practice of training employees on the job to
qualify for various positions). Compare Tr. 1649 (Ryan denying
that dozer operators learned on the job at AAA), with Tr. 2262-64
(Hyles testifying that miner Bob Christenson, after bumping into
miner Melvin's dozer operator position after the plant shutdown,
learned to operate the dozer on the job "to some extent").[18]
Third, the judge credited each of the complainants' testimony as
to their respective qualifications to operate various types of
equipment.[19] 19 FMSHRC at 862. In light of "Ryan's blatant
hostility to the [complainants'] protect[ed] activity," the judge
also discredited Ryan's testimony that the complainants were
unqualified. Id. Despite the very general nature of the judge's
credibility determinations, the judge nonetheless complied with
our remand instruction to render appropriate credibility
determinations. All American Asphalt I, 18 FMSHRC at 2102-03.
We also note that the judge was in the best position to make
credibility determinations, and that abundant evidence in the
record supports these determinations. In short, we see no basis
for reversing the judge's credibility findings. See In re:
Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995).
Furthermore, the judge did not err in his remand decision
by according no weight to the arbitration decision and the
credibility determinations made therein. The Commission's
holding in Pasula firmly places the decision whether to defer to
an arbitrator's decision in the sound discretion of the judge.
Pasula, 2 FMSHRC at 2795. As we held in Pasula, "[a]rbitral
findings, even those addressing issues perfectly congruent with
those before the judge, are not controlling upon the judge."
Id., citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
In the instant matter, the judge made different credibility
determinations than the arbitrator, discrediting Ryan (19 FMSHRC
at 862-63), whose testimony the arbitrator credited. Gov't Ex.
51 at 12, 14 n.6. In addition, the arbitrator did not consider
Ryan's expressed hostility to the complainants' protected
activity. See id. at 1-14. Finally, the arbitrator was not
asked or permitted under the collective bargaining agreement to
consider whether AAA's claim that the complainants lacked
necessary qualifications was a pretext to keep the complainants
on layoff because of their protected activities under the Mine
Act. See Resp. Ex. at 23-24. We see no reason to disturb the
judge's exercise of discretion in declining to accord weight to
the arbitrator's decision.
There is additional record evidence supporting the judge's
rejection of lack of qualifications as a defense to AAA's refusal
to recall the complainants. By the end of August 1992, in
addition to the four complainants, one other employee, Hodgeman,
was on layoff. Gov't Ex. 15; Gov't Ex. 51 at 4. Hodgeman, who
was classified as a loader operator, as were Hyles and Soto, was
allowed to bump a junior employee, Melvin, who was classified as
a dozer operator. 16 FMSHRC at 2238; Gov't Ex. 14; Tr. 1889-90.
Although Ryan allowed Hodgeman to bump, he did not afford any of
the complainants the same opportunity. Tr. 423-25, 1316-18.
Despite Melvin's layoff after he was bumped by Hodgeman, he was
later rehired to work at AAA's asphalt plant, which adjoined the
rock finishing plant but was under a separate collective
bargaining agreement. Tr. 1955-57, 1965, 2013-14. Thus, even
though Melvin was initially bumped out of a job, unlike the
complainants, he did not remain out of work.
AAA's disparate treatment of these complainants with respect
to employee classifications and bumping further supports the
judge's conclusion that the operator's failure to recall the
complainants in July and August 1992 was not based upon their
alleged lack of qualifications. In short, substantial evidence
supports the judge's finding that the complainants' purported
lack of qualifications for available work was pretextual. 19
FMSHRC at 862, 865, 866; see Price, 12 FMSHRC at 1534.
AAA also argues that it had a valid economic reason for the
cutback in its operations that resulted in the permanent layoff
of the four complainants. A. PDR at 25-26, 32-33, 66. In light
of the judge's rejection of AAA's assertion that the complainants
were not qualified for positions held by less senior employees,
he did not reach the issue of whether AAA's economic
justification for the initial layoff was proper. We agree with
the judge's approach. Thus, the issue presented by the July 1992
layoff and failure to recall is not whether there was a valid
economic need for a layoff, but rather whether AAA improperly
failed to recall the four complainants while recalling all other
employees, including employees less senior than the complainants.
Accordingly, our rejection of AAA's qualifications argument does
not require us to reach AAA's economic defense.[20]
Accordingly, we find that substantial evidence supports
the judge's determination that AAA violated section 105(c) by
refusing to recall the complainants, while recalling every
other employee laid off because of the July 1992 equipment
move.
3. March 1993 Layoff
In his remand decision, the judge limited his analysis
of the complainants' second layoff to a determination of
whether the layoff was connected to the complainants'
participation in MSHA's section 110(c) investigation of Ryan.
19 FMSHRC at 861. Because the judge concluded that there
was no nexus between the second set of layoffs and the
complainants' role in the section 110(c) investigation,
he found no discrimination and dismissed the second set
of complaints. Id.
We find that the judge erred in limiting his analysis
to the complainants' participation in the section 110(c)
investigation. The Secretary did not base her claims
of discrimination regarding the second set of layoffs
solely upon this participation.[21] See Compl. dated
June 2, 1993. Therefore, the judge erred in failing to
consider the complainants' other protected activities
in analyzing the legality of the March 1993 layoff.
See Carmichael v. Jim Walter Resources, Inc., 20 FMSHRC
479, 486-87 (May 1998) (vacating judge's determination
that operator did not violate section 105(c) based on
judge's error in construing argument asserted by
complainant). Further, his conclusion that there was
no nexus between the layoffs and the complainants'
involvement in MSHA's section 110(c) investigation is
contrary to his own findings. See 19 FMSHRC at 866
(finding that AAA manipulated shift and job assignments
in March 1993 for the specific planned purpose of
terminating the complainants in retaliation for, inter
alia, their participation in the section 110(c)
investigation of Ryan).
Although both AAA and the Secretary assert that a
remand would be appropriate on certain issues related to
the March 1993 layoff, the judge has made sufficient
factual findings upon which we can decide this issue
without remanding to the judge. In our view, the
record viewed as a whole compels only one conclusion:
that the March 1993 layoff of the complainants violated
section 105(c). Accordingly, we need not remand this
issue to the judge. See American Mine Servs., Inc., 15
FMSHRC 1830, 1834 (Sept. 1993) (citing Donovan v.
Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir.
1984) (remand would serve no purpose because evidence
could justify only one conclusion)).
a. Prima Facie Case
As the judge found, by the time of the July 1992 layoff,
AAA's management had learned the identity of those employees
who participated in the protected activity that it so deeply
resented.[22] 19 FMSHRC at 865. The judge also concluded that,
in March 1993, AAA "manipulated the shift and job assignments"
to terminate the complainants in retaliation for their protected
activity "that resulted in the shutdown of the plant, the 29
unwarrantable failure citations and the 110(c) investigation
of Ryan . . . ." Id. at 866. Thus, the judge explicitly found
a nexus between the March 1993 layoffs and the complainants'
protected activity.
The judge's finding of a nexus between the complainants'
1991 protected activity and the 1993 layoff finds abundant
support in the record. First, when the events occurring between
July 1992 and March 1993 are reviewed, a continuing pattern of
discrimination is evident. AAA's conversion of a temporary
layoff to a permanent layoff with respect to only the four
complainants occurred about the same time Ryan signed and dated
the notice of contest regarding MSHA's July 1992 issuance of over
$45,000 in proposed penalties stemming from the plant conditions
leading to the shutdown.[23] See Gov't Ex. 57. The complainants
remained on layoff until their reinstatement in February 1993.
16 FMSHRC at 2240. Less than one month after their
reinstatement, the complainants were again laid off. 19 FMSHRC
at 858.
Second, the circumstances surrounding the March 1993 bumping
meetings compel a finding that the complainants established a
prima facie case. In early March - less than one month after the
complainants were reinstated - Ryan reestablished a new graveyard
shift for production - purportedly because of the extra time
needed to mine wet materials from the pit[24] - and unilaterally
assigned four of AAA's most senior repairmen to staff the new
shift despite Ryan's prior acknowledgment that placing repairmen
on the production shift would decrease production. Tr. 382,
1390-97; see Resp. Ex. 9 at 7-8. The graveyard shift is
generally considered the least desirable shift; employees with
highest seniority normally choose the day shift when bidding on
jobs. 16 FMSHRC at 2240; Tr. 447. Soon after Ryan's assignment
of the senior repairmen to the third shift, AAA moved the primary
production shift to the day shift, and moved the maintenance
shift to the night shift, an arrangement not present at AAA for
at least three years. See Gov't Ex. 15; Tr. 990. Just prior to
the March 1993 layoff, Ryan remarked to union business
representative McGuire that he had "four operators too many" and
that he had "four problem children."[25] Tr. 203-04. McGuire
understood Ryan's comments to refer to the complainants.
Tr. 204. On March 24, only three weeks after the
creation of the third shift, Ryan eliminated that shift,
announced a layoff, and allowed the repairmen to exercise their
bumping rights.[26] 16 FMSHRC at 2240. Notwithstanding that
there were repair positions available, each of the repairmen
bumped one of the complainants and was eventually reclassified as
a production worker. Gov't Ex. 16; Tr. 211-17.
AAA's inversion of the production and maintenance shifts
so that production would be performed on the more desirable
day shift for the first time in at least three years; Ryan's
assignment to the temporary graveyard shift of four senior
repairmen accustomed to working the day shift; and AAA's
subsequent elimination of the temporary shift created a situation
in which the four repairmen almost certainly would bump into the
day shift when given the opportunity. See Tr. 1946 (testimony of
senior repairman assigned by Ryan to the temporary third shift
that he wanted to return to working the day shift). In fact,
prior to the meeting, Ryan admitted that he knew that the senior
repairmen would bump into day jobs (Tr. 1687-90) even though they
had performed primarily repair work for many years and had not
worked production during Hyles' tenure at AAA. Tr. 447.
At the subsequent bumping meeting, Hyles and Soto each
requested that he be allowed to consult with the Solicitor's
office because of their recent temporary reinstatement and the
pendency of their discrimination complaints. 19 FMSHRC at 858;
Tr. 452, 995-96. All the complainants believed that Ryan would
disqualify them for any position into which they attempted to
bump.[27] 19 FMSHRC at 858. In fact, at the December 1992
arbitration, Ryan argued that the complainants were not qualified
to perform any available duties at AAA. Gov't Ex. 51 at 10
(arbitrator indicating that Ryan believed that the complainants
were unable to perform available work); see Tr. 453. Ryan's
testimony also leaves no doubt that he was the sole arbiter of an
employee's qualification for a given position. See Tr. 1420,
1459, 1613 ("I am the judge [of whether an employee is
qualified]."). As the judge found, animus tainted Ryan's
judgment as to the complainants' qualifications. 19 FMSHRC at
863. These facts lend credence to the complainants' belief that
Ryan would have summarily rejected any attempt by them to
exercise their bumping rights at the March 1993 bumping meeting.
See Tr. 452-53, 721, 857, 996 (testimony of complainants that
they did not attempt to bump because Ryan would have
disqualified them to prevent the bump). When all of the
complainants sought to exercise their bumping rights after
consulting with the Secretary's counsel, Ryan refused to consider
them for any position. 19 FMSHRC at 858. The complainants were
the only employees left without a job after the March 1993
bumping process was completed, and AAA subsequently hired new
employees to fill the vacant repairman positions. 16 FMSHRC at
2240-41; Tr. 481, 1429, 1693.
Evidence supporting AAA's knowledge of the complainants'
protected activities, the timing and circumstances surrounding
the bumping of the complainants, and AAA's subsequent refusal to
permit the complainants to bump junior employees persuades us
that substantial evidence supports the judge's finding that AAA
"manipulated the shift and job assignments . . . for the specific
planned purpose of terminating the [complainants] . . . ." 19
FMSHRC at 866. Accordingly, we conclude that the record compels
a finding that the complainants established a prima facie case
that their March 1993 layoff was discriminatorily motivated.
b. Affirmative Defense
AAA asserts that the March 1993 layoff was not
discriminatory because the complainants chose not
to avail themselves of the bumping procedure after
they were bumped by the senior employees. A.
Reply Br. at 12-13. AAA also alleges that the
judge failed to find that permitting the
complainants to bump after job assignments already
had been rearranged would cause "commotion" and
the filing of grievances by the bumped employees.
A. PDR at 45.
In finding that AAA used the March 1993 bumping
procedure to retaliate against the complainants for
their protected activity, the judge implicitly rejected
AAA's argument that the complainants' attempts to
bump were untimely. We agree that ample record
evidence supports rejection of AAA's argument.
Bumping requests were made by three of the
complainants approximately one week after the
bumping meeting, and the remaining complainant
three weeks after the meeting. See Gov't Exs. 21,
45, 52; Tr. 721, 857. Nothing in the collective
bargaining agreement dictates a deadline by which
bumping rights must be exercised. Tr. 1699-701.
Even Ryan admitted that nothing in the bargaining
agreement requires that a miner must bump at the
bumping meeting or immediately thereafter. Tr.
1700. Furthermore, nobody from AAA objected to
Hyles' or Soto's request to consult with their
attorney before deciding whether to bump, nor did
anyone inform the complainants that by taking the
time to consult an attorney, they were forfeiting
their bumping rights under the bargaining
agreement. Tr. 218, 244-45, 452. The
complainants' decision to bump only after
considering the repercussions of doing so was
reasonable in light of their unanimous belief that
Ryan would disqualify them from any position into
which they sought to bump, and their uncertainty
regarding whether attempting to bump would
jeopardize their previous reinstatement. Thus, we
reject AAA's defense that the complainants'
bumping requests were untimely.
AAA further defends on the ground that the complainants
id not seek to bid on a plant operator job that was
posted on March 24, 1993 - the same day as the
bumping meeting. A. PDR at 38. After assertedly
being laid off on March 24, Crowell, the employee
who successfully bid on the job, was temporarily
placed in the job on the same day by Ryan. The
job was posted on the afternoon of the day the
complainants were laid off, and, not surprisingly,
Crowell was the only employee to bid on the job.
Resp. Ex. 18A; Tr. 1400-06. AAA's claim that the
complainants' failure to bid on the job filled by
Crowell indicates their lack of interest in
bumping into an available position was presented
to the judge (A. Br. at 77 n.67) who nonetheless
found that the bumping procedure violated section
105(c). The judge's implicit rejection of AAA's
argument is reasonable. There is no evidence in
the record that the complainants were even aware
of the posting, because, unlike Crowell, when they
were bumped on March 24, they were not placed in another
job.[28] Accordingly, we find that AAA's arguments fail
to establish an affirmative defense to the Secretary's
prima facie case.
In sum, the record compels a finding of discrimination
regarding the second set of layoffs in March 1993.
Ryan was able to manipulate the seniority/job
classification so that the complainants were the
only employees laid off. In addition to the
judge's pertinent findings in his remand decision,
he made strong factual findings of discrimination
in his initial decision. 16 FMSHRC at 2248-49.
Moreover, when the two layoffs and the
circumstances surrounding them are viewed
together, a clear pattern of discrimination by
Ryan and AAA to retaliate against Hyles, Mears,
Dennis, and Soto for their protected activity
under the Mine Act emerges. We conclude that the
credited record evidence compels the conclusion
that AAA discriminatorily laid off the
complainants in violation of section 105(c).
Accordingly, we reverse the judge's determination that
the March 1993 layoffs were not discriminatorily motivated.
C. Penalties
In the judge's initial decision, in which he found both
layoffs unlawful, he did not reach the issues of backpay or
penalties. 16 FMSHRC at 2249. In a subsequent decision,
the judge accepted a stipulation submitted by the parties,
referred to previously (slip op. at 7 n.3), on the amount of
backpay due the complainants, while AAA continued to argue
against a finding of liability. 17 FMSHRC 799, 800 (May
1995) (ALJ). The parties also stipulated that the penalties
should be levied in the amount of $3,500 per individual
violation. Id. at 800-01. AAA now objects to the judge's
imposition of $14,000 in penalties as contrary to the
stipulation. AAA PDR at 73.
In making his penalty assessment, the judge failed to
properly apply the penalty criteria set forth in section
110(i)[29] in his penalty assessment. See 17 FMSHRC at 801.
Likewise, the supporting stipulation of the parties, which
the judge attached to his decision, does not address the
penalty criteria or offer any supporting rationale for the
agreed upon penalty of $3,500 per violation. Id. at 803-08
(Ex. A). In the judge's remand decision, he cited to the
parties' earlier stipulation on penalties and stated that,
"after consideration of the relevant statutory criteria," a
penalty of $14,000 ($3,500 per violation for each of the
four discrimination violations he found) was appropriate.
19 FMSHRC at 861. The judge did not specifically analyze
any of the penalty criteria or offer any supporting reasons
for the penalty in accordance with statutory requirements.
See Sellersburg Stone, 5 FMSHRC at 290-94. Accordingly, we
vacate the penalties imposed for the two layoffs and remand
to the judge solely for the narrow purpose of reassessment
of penalties through application of the section 110(i)
penalty criteria. See Secretary of Labor on behalf of
Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1539
(Sept. 1997).
**FOOTNOTES**
[1]: Section 110(c) of the Mine Act provides that, whenever
a corporate operator violates a mandatory health or safety
standard, a director, officer, or agent of such corporate
operator who knowingly authorized, ordered, or carried out the
violation shall be subject to an individual civil penalty. 30
U.S.C. � 820(c).
[2]: There was initially a fifth employee, Martin Hodgeman,
referred to in the arbitrator's decision, who was not called
back. Gov't Ex. 15; Gov't Ex. 51 at 4. However, Ryan allowed
Hodgeman, who was classified as a loader operator and was junior
to Hyles, Dennis, and Mears,
to change his classification to dozer operator and bump a more
junior employee, Greg Melvin. See Gov't Exs. 14, 15. Melvin,
who was junior to all the complainants, subsequently was hired at
the asphalt plant owned by AAA, while the complainants remained
on layoff. Gov't Exs. 13, 14; Tr. 1956, 1965, 2014.
[3]: Attached to the judge's May 1997 decision is a
stipulation between the parties, in which they agree on back pay
and interest due each complainant through the December 1993
hearing. 19 FMSHRC at 870-71 (Ex. A). Assuming liability on the
part of AAA, the parties agreed that a civil penalty of $3,500
would be appropriate for each of the eight alleged
discrimination violations. Id. at 871-72. The judge accepted
this amount for the set of dockets in which he found AAA liable
under section 105(c). Id. at 861.
[4]: We note that the second set of layoffs could not
possibly have been motivated by the complainants' filing their
second set of discrimination complaints since those complaints
were filed in response to the second set of layoffs.
Furthermore, the judge erroneously stated that the "second set of
dockets . . . arose out of the second set of discrimination
complaints that the four complainants filed . . . in September
1992." Id. In fact, the first set of discrimination complaints
(relating to the July 1992 layoffs) were filed in September 1992.
[5]: The Secretary designated her petition for
discretionary review as her opening brief.
[6]: AAA submitted a 95-page PDR challenging the judge's
initial decision, after which we admonished AAA that Commission
Procedural Rule 70(d), 29 C.F.R. � 2700(d) requires that "each
issue [in a PDR] shall be . . . plainly and concisely stated."
In apparent disregard of this warning, AAA's present PDR spans 75
pages.
[7]: "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)).
[8]: In addressing a similar situation, the National Labor
Relations Board affirmed a judge's decision where the judge's
findings satisfied the analytical objectives of its
discrimination framework expressed in Wright Line, A Div. of
Wright Line, Inc., 251 NLRB 1083 (1980), enforced sub nom. NLRB
v. Wright Line, a Div. of Wright Line, Inc., 662 F.2d 899 (1st
Cir. 1981). Limestone Apparel Corp., 255 NLRB 722 (1981),
enforced sub nom. NLRB v. Limestone Apparel Corp., 705 F.2d 799
(6th Cir. 1982).
[9]: Of the six witnesses Hyles identified to MSHA, the
three witnesses other than Dennis, Mears, and Soto had been laid
off prior to MSHA's section 110(c) investigation of Ryan. See
Gov't Ex. 2 at 1.
[10]: The Commission occasionally has looked for guidance
to case law interpreting similar provisions of the National Labor
Relations Act, 29 U.S.C. � 151 et seq. (1994) ("NLRA") in
resolving questions arising under the Mine Act. See, e.g.,
Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990)
(deciding discrimination case in part through reference to NLRA
case law).
[11]: AAA may well have known of Hyles' protected activity
by the time of his demotion in October 1991. Indeed, the
arguably discriminatory circumstances surrounding his demotion
presented a close case. In addition to AAA's knowledge of and
hostility towards the protected activity, the record shows that
Ryan told Hyles that he and Hyles no longer saw "eye-to-eye,"
that Ryan did not rely on the reasons that he subsequently gave
to MSHA at the time he demoted Hyles, and that the major
misconduct on which Ryan purportedly relied in demoting Hyles -
sleeping during work hours - was long condoned both for Hyles and
other AAA employees. Tr. 64, 394, 402, 1568, 1574-75, 1584-85,
2153. While the demotion is consistent with a pattern of
recrimination towards the complainants because of their protected
activities, the Secretary did not challenge the judge's finding
of no discrimination in the demotion, and the issue, therefore,
has not been preserved for review.
[12]: Shortly after Dennis wrote the letter, he was
recalled from temporary layoff. Tr. 841-42.
[13]: In other circumstances, we have considered record
evidence upon which a judge has not expressly relied.
Sellersburg Stone Co., 5 FMSHRC 287, 293-95 & n.9 (Mar. 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984) (finding that evidence upon
which the judge did not expressly rely supported his imposition
of penalty). Here, while the judge did not expressly consider
the coincidence in time between Ryan's receipt of MSHA's proposed
penalty and the adverse action taken against the complainants, we
find it appropriate to consider this uncontroverted evidence in
light of its probative value.
[14]: On cross-examination, Ryan testified that he did not
recall when he reviewed the penalty assessments, but he did not
deny having received them around the time they were issued. Tr.
1597-1602. Ultimately, the dockets involving the citations
against AAA and Ryan were settled, and the judge ordered Ryan to
pay $7,600 in satisfaction of his section 110(c) liability and
ordered AAA to pay $36,000 in penalties. Order Approving
Settlement, dated February 22, 1994.
[15]: AAA's refusal to recall the complainants - until they
were voluntarily reinstated in February 1993 - resulted in the
complainants' loss of seniority under the collective bargaining
agreement. 16 FMSHRC at 2239-40, 2247.
[16]: The first record evidence of AAA offering lack of
qualification as its motivation for not recalling the
complainants appears in the arbitration decision, which was
litigated beginning on December 16, 1992 - over three months
after AAA's recall of all laid off employees except the
complainants. See Gov't Ex. 51.
[17]: Union business representative McGuire testified that
"[g]enerally, after completion of an apprenticeship program, [a
miner] should be able to perform any duties at the mine." Tr.
196.
[18]: Given the extent of the credited evidence of the
complainants' qualifications, it is apparent that Hyles, Mears,
and Soto were each eligible to bump into the dozer position
occupied by Melvin, who was junior to all the complainants, and
subsequently occupied by miner Hodgeman, who was junior to all
the complainants except Soto. See Gov't Exs. 14, 15.
Furthermore, Dennis and Mears were eligible to bump into the
shovel positions occupied by Sean and Barry Laycock and Danny
Stinson, all of whom were junior to the complainants. See Gov't
Exs. 14, 15.
[19]: Hyles stated at the hearing that he is qualified to
run a dozer and that he considers himself "qualified to be a
plant repairman." Tr. 286, 299. Hyles further testified that he
could run the new plant if he was afforded the same training
opportunities as those given to AAA employees White, Bobby
Crowell, and Rick McLane for that position. Tr. 296-97. It
perplexes us that Ryan allowed Hyles, as leadman, to train other
employees, yet did not consider him a candidate for on-the-job
training for any available position. Dennis testified that he
had received three weeks of training on a shovel and that, if
afforded the same duration of shovel training as Allen Richter,
he could have become as proficient as Richter on the shovel. Tr.
807-08. Dennis also testified that he was qualified to be a
plant operator and could run the new plant if trained. Tr. 800-
01. Mears testified that he was capable of operating a dozer and
a shovel. Tr. 671. He also stated that if he was allowed the
opportunity to train on the job, he could perform any plant
repairman duty. Tr. 777. In fact, through on-the-job training,
Mears became qualified to operate a crusher and a loader and to
perform plant operation and repair. Tr. 660, 1654. Soto stated
that he could perform the same dozer work as dozer operators
Christenson, Hodgeman, and Melvin. Tr. 945. Soto also indicated
that in May 1991, Ryan offered to allow him to bump into a dozer
position. Tr. 966. Soto testified that he could learn to be a
plant repairman if given the same on-
the-job training as AAA gave to Richter and McLane. Tr. 946,
948. Ryan testified that he did not "know of any reason that
[Soto] couldn't" learn on the job to perform reclamation, grade
work or pioneering on the dozer (Tr. 1653), and didn't know of
any reason that Mears could not learn other equipment on the job
as well. Tr. 1655.
[20]: Nonetheless, based on facts found by the judge and
other evidence from AAA's own witnesses, we believe that AAA's
economic defense is suspect. AAA expert witness Dr. Michael
Phillips' admission that production increased in July and August
1992, severely undermines the relevance of his assessment that
declining economic conditions in California's construction
industry as a whole in 1992 necessitated AAA's economic layoff.
Resp. Ex. 40A; Tr. 1750-51; see Gov't Exs. 25, 50; Resp. Ex. 38A-
G; Tr. 1604, 1753, 1760. Moreover, Dr. Phillips had neither been
to AAA's facility, nor had he advised AAA concerning the
advisability of an economic layoff in 1992. Tr. 1760, 1768,
1771. Also, several employees worked overtime hours outside
their classifications while the complainants were on layoff.
Gov't Ex. 25; Tr. 1605, 1717-20. While Phillips testified that
employers often utilize existing employees to work overtime to
save costs, (Tr. 1760), he admitted that he had not reviewed the
wage and benefit package in AAA's collective bargaining
agreement, so as to know whether that was the situation at AAA.
Tr. 1796. In sum, testimony that an economic layoff became
necessary at some unspecified date after the temporary layoff is
at odds with the testimony of AAA's own witnesses and documentary
evidence in the record.
[21]: In the second discrimination complaint, the Secretary
alleges that AAA discriminated against the complainants for
"their protected safety activity, including the filing [of] their
initial complaints of discrimination with MSHA." Compl. dated
June 2, 1993 at 5.
[22]: Ryan admitted that, by the time of the second layoff,
he knew that it was Hyles who had gone to MSHA prior to the
inspection that led to the plant shutdown. Tr. 1690.
[23]: We also note that the $9,500 proposed assessment for
Ryan's alleged 110(c) violations is dated October 22, 1992.
Ryan's notice of contest is dated October 30, 1992. See WEST 93-
65-M.
[24]: We assume the need for an additional shift because of
the increased production time required to process the wet
material in the pit. Thus, our disposition of the March 1993
layoff does not require us to reach the issue of the need for the
shift or its rapid elimination.
[25]: The complainants testified that, following their
reinstatement in February 1993, they were subjected to
discriminatory working conditions, including increased scrutiny
by management and verbal harassment. Tr. 444-45, 468-70, 714
(Mears' testimony that Ryan kept closer tabs on the complainants
after the February 1993 reinstatement), 987-90 (testimony of Soto
that he was given reduced working hours and that Ryan purposely
caused Soto to miss his ride with Hyles). However, the judge
made no findings in this area.
[26]: Although Ryan testified that the Operating Engineers
and the contract forced him to have a bumping meeting when he
eliminated the temporary third shift (Tr. 1396-97), the contract
exempts temporary jobs from the bidding and bumping procedures.
See Resp. Ex. 9 at 19-20; Tr. 241.
[27]: Moreover, the Operating Engineers filed grievances
against AAA on behalf of Soto and Dennis, as a result of the
March 1993 layoff, assertedly because Ryan violated the
contractual provision regarding layoff of Operating Engineers'
stewards. Tr. 258, 1420-22. The
grievances were withdrawn when Soto and Dennis were temporarily
reinstated by agreement of the parties. 16 FMSHRC at 2242; Tr.
258.
[28]: Further, Ryan's actions in placing Crowell in the job
before it was even posted - and thus before the complainants had
an opportunity to bid on it - indicates that any efforts by them
to bid on the job and be reclassified would have been futile.
[29]: Section 110(i) sets forth six criteria to be
considered in the assessment of penalties under the Act:
[1] the operator's history of
previous violations, [2] the appropriateness
of such penalty to the size of the business
of the operator charged, [3] whether the
operator was negligent, [4] the effect on the
operator's ability to continue in business,
[5] the gravity of the violation, and [6] the
demonstrated good faith of
the person charged in attempting to achieve
rapid compliance after notification of a
violation.
30 U.S.C. � 820(i).
III.
Conclusions
For the foregoing reasons, we affirm the judge's
determination that the July 1992 layoff and failure to
recall complainants was violative of section 105(c). We
reverse the judge's determination that the March 1993 layoff
was not discriminatorily motivated, and conclude that the
record compels a determination that the March 1993 layoff
violated section 105(c). Finally, we remand to the judge
for the limited purposes of reinstating his backpay order,
17 FMSHRC at 801, (which adopted the parties' stipulation
regarding backpay owed) and direct him to add the interest
due on the backpay amounts accruing from the date referred
to in the parties' stipulation, pursuant to the Commission's
decision in Secretary of Labor on behalf of Bailey v.
Arkansas-Carbona Co., 5 FMSHRC 2042, 2051-53 (Dec. 1983),
modified, Local 2274, UMWA v. Clinchfield Coal Co., 10
FMSHRC 1493, 1504-06 (Nov. 1988). We also order the judge
to reassess the penalties, reviewing the parties'
stipulation, and applying the section 110(i) criteria. See
Energy West Mining Co., 16 FMSHRC 4, 4 (Jan. 1994)
(considering section 110(i) criteria and approving penalty
to which parties stipulated).
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
Commissioner Verheggen, dissenting:
I dissent from the majority decision because I believe
that, in light of the judge's disregard of the instructions
set forth in the Commission's original remand order (see 18
FMSHRC at 2101-03), his decision must be vacated and the
matter remanded. For example, the judge failed to "frame
his analysis in a manner consistent with the Commission's
Pasula-Robinette analytical framework" (slip op. at 10),
after the Commission directed him to do so (18 FMSHRC at
2102). Nor did the judge "reach the issue of whether AAA's
economic justification for the initial layoff was proper"
(slip op. at 18) as directed by the Commission (18 FMSHRC
at 2102).
I also believe that a remand is necessary in light of
what is in some respects an internally contradictory decision.
As my colleagues point out, the judge's "conclusion that
there was no nexus between the [March 1993] layoffs and the
complainants' involvement in MSHA's section 110(c)
investigation is contrary to his own findings." Slip op.
at 19. I am not prepared to resolve such issues at this
appellate level, issues which I believe must be resolved by
the judge in the first instance. See Grizzle v. Pickands
Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) ("[T]he
ALJ has sole power to . . . resolve inconsistencies in the
evidence.") (citations omitted).[1]
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: I would also vacate and remand the judge's penalty
assessment and backpay awards with the instruction to reconsider
them in light of any new findings made pursuant to my remand
instructions on the merits. I agree with my colleagues that the
judge must follow Sellersburg Stone Co., 5 FMSHRC at 290-94, in
reassessing any penalty. Slip op. at 24. On remand, the judge
thus must enter findings on each of the section 110(i) penalty
criteria and assess an appropriate penalty based on his findings.
See 5 FMSHRC at 292-93.
Distribution
Naomi Young, Esq.
Lawrence J. Gartner, Esq.
Gregory P. Bright, Esq.
Gartner & Young
1925 Century Park East
Suite 2050
Los Angeles, CA 90067
Yoora Kim, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
William Rehwald, Esq.
Rehwald Rameson Lewis & Glasner
5855 Topanga Canyon Blvd., Suite 400
Woodland Hills, CA 91367
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041