Secretary of Labor on behalf of J. Don Arnold v. BHP Navajo Coal Company and Its Successors

Read the official release (fmshrc.gov)

Plain-English summary

Electrician and miners' representative J. Don Arnold repeatedly raised concerns about an open fan motor in BHP Navajo Coal's laboratory, helped cause a section 103(g) inspection, and supplied photographs to MSHA. BHP then held him out of service indefinitely without pay, although it later paid him for the missed work, issued his first written warning in nearly 30 years, and lowered the safety rating on his performance review. Judge John Kent Lewis found that Arnold acted in good faith, that each response was materially adverse, and that management showed hostility to his protected decision to go outside its preferred chain of command. The judge also found disparate treatment because managers who knew of the same possible hazard and did not lock out the motor were treated more leniently or not disciplined. He rejected BHP's lockout explanation as pretext, found high negligence and a chilling effect on miners, ordered all negative references removed and the performance review redone by someone without animus, and assessed a $20,000 penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was sustained, personnel-record and performance-review remedies were ordered, and BHP was assessed a $20,000 civil penalty.
• Key point: An operator may encourage internal reporting, but it cannot discipline a miner for contacting MSHA or disguise that retaliation as enforcement of a safety policy applied more leniently to managers.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

on behalf of J. DON ARNOLD,

Complainant.

v.

BHP
NAVAJO COAL COMPANY,

AND
ITS SUCCESSORS,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. CENT 2013-541-D

MSHA
Case No.: DENV CD 2013-11

Mine:
Navajo Mine

Mine
ID: 29-00097

DECISION

Appearances:               Karla
Jackson Edwards, Esq., U.S. Department of Labor, Office of the Solicitor,
Dallas, TX, Representing the Secretary

Charles W.
Newcom, Esq., Sherman & Howard, LLC, Denver, CO Representing Respondent.

Before:           
                       Judge Lewis                           

This case is before me upon
a complaint of discrimination brought by J. Don Arnold (“Arnold” or “Complainant”),
a miner, against BHP Coal, LLC, (“Respondent”), pursuant to § 105(c)(3) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3).

Arnold filed a
discrimination complaint in this matter with MSHA on February 28, 2013. On June
11, 2013, the Secretary of Labor filed the complaint with the Commission. Arnold
requested revocation of a written warning and a re-evaluation on a performance
review. Respondent answered on July 9, 2013, denying the substantive
allegations and requesting a hearing. This docket was assigned on August 1,
2013. On November 7, 2013, Respondent filed a Motion for Summary Decision. The Secretary
filed a timely Response to the Motion for Summary Decision on December 16, 2013;
Respondent replied on December 20, 2013. On March 6, 2014, an Order Denying
Respondent’s Motion for Summary Decision was issued.

On April 19, 2014, a hearing
was set in this matter for September 17-19, 2014. On May 15, 2014, the date was
changed to October 21-23, 2014. The hearing was held on October 22 and 23, 2014,
at the Dale Claxton Federal Building in Durango, Colorado. On January 23, 2015,
both parties submitted Post-Hearing Briefs; on February 9, 2015, both parties
filed Reply Briefs. All Briefs have been fully considered.

STIPULATIONS

The parties have entered into several
stipulations, admitted as Parties’ Joint Exhibit 1.[1]
(Transcript at 228).[2] Those stipulations
include the following:

1.                 
The Federal
Mine Safety and Health Review Commission has jurisdiction over this action
pursuant to Section 113 of the Mine Act, 30 U.S.C. §823.

2.                 
This action
is brought by the Secretary and J. Don Arnold pursuant to the authority granted
by Section 105(c) of the Mine Act, 30 U.S.C. §815(c).

3.                 
At all
relevant times, Respondent, BHP Navajo Coal Company was an “operator” as that
term is defined by Section 3(d) of the Mine Act, 30 U.S.C. §802(d).

4.                 
At all
relevant times, Respondent was also a “person” within the meaning of Section
3(f) and 105(c) of the Mine Act, 30 U.S.C. §§802(f) and 815(c).

5.                 
Respondent
produces products that enter commerce or has operations or products that affect
commerce, all within the meaning of Sections 3(b), 3(h), and 4 of the Mine Act,
30 U.S.C. §§802(b), 802(h), and 803.

6.                 
Respondent
has employed Complainant J.D. Arnold since February 25, 1986, at Navajo mine.

7.                 
At all
relevant times, Respondent employed Complainant J.D. Arnold as a Maintenance-A
Electrician.

8.                 
At all
relevant times, Complainant was a “miner” within the meaning of Section 3(g) of
the Mine Act, 30 U.S.C. §802(g).

9.                 
Complainant
engaged in protected activity within the meaning of Section 105(c)(1) of the Mine
Act, 30 U.S.C. §815(c)(1) when he filed a complaint with MSHA on February 28,
2013.

10.             
MSHA issued
Respondent a 104(a) citation, number 8480130, regarding a ventilation fan motor
in the coal laboratory on February 20, 2013. On the afternoon of March 1, 2014,
BHP was advised in a meeting with MSHA at the Navajo Mine that the citation was
being modified to a 104(d)(1) order. At the hearing on the merits of this order
on July 30, 2014, the citation was further modified to a 104(d)(1) citation
because the underlying unwarrantable failure citation leading to an order had
been modified to a section 104(a) citation.

11.             
On February
22, 2013, Complainant was “held out of service pending further Investigation”
by Respondent.

12.             
On March 1,
2013, Respondent reinstated Complainant, allowed him to return to work and paid
him for his time off.

13.             
On March 1,
2013, Respondent issued Complainant a written warning.

14.             
Respondent
drafted a 2013 Performance Review of Complainant’s performance.

15.             
MSHA proposes
a civil penalty of $20,000.00 against Respondent on June 10, 2013 because of
the allegations of discrimination against Complainant.

16.             
The payment
of $20,000.00 will not affect BHP Navajo Coal Co.’s ability to remain in
business.

(JX-1)

FINDINGS OF FACT AND CONCLUSIONS
OF LAW

Complainant, J. Don Arnold,
was present at the hearing and testified. (Tr. 241). Arnold had worked at the
mine since 1986. (Tr. 241). As a Maintenance-A electrician, Arnold conducted
monthly electrical inspections and repaired/maintained equipment based on work
orders. (Tr. 241-243). Arnold was a member of the Operating Engineers Local 953
and served as union steward, miners’ representative, and union board member for
at least 15 years. (Tr. 242).

On January 19, 2013, Arnold received a
work order to repair equipment in the mine’s coal lab. (Tr. 243-244, 389). At
the lab, Arnold noticed that there was an exhaust fan but did not know its
purpose. (Tr. 243). Arnold followed the exhaust system to the roof (despite the
fact that he was not tasked with doing so) and became concerned about an
open-faced motor he found there. (Tr. 243-244). He was concerned because the
lab monitored for explosive gases. (Tr. 243-244, 390). After he observed the
motor, Arnold waited for his supervisor, the electric shop foreman, Kerry
Steagall, to return to work.[3] (Tr. 244-245, 389).

On January 22, 2013, Arnold spoke with
Steagall about the possibility of a problem with gas in the lab and they went
to view the motor. (Tr. 244, 389-390). Steagall and Arnold had a relationship
of mutual respect. Steagall did not question Arnold’s credibility or believe he
would make irrelevant safety complaints. (Tr. 392). This was the first time
Steagall saw the fan and he did not know when it was installed. (Tr. 391-392). They
discussed the issue and were concerned that if the gas was not shut off or if
there was a leak that the fan was an improper installation and would allow gas
to get inside. (Tr. 392, 403). They did not know how the fan was installed,
what worked, what did not work, and if there were any safety issues with the
set up. (Tr. 434).

Arnold asked if they should tag out the
motor but Steagall did not see a hazard and asked him to wait until they
learned more.[4] (Tr. 244, 282, 395). Steagall
was unsure whether the motor needed to be changed and said he would ask Jim
Berget, the chief electrical engineer.[5] (Tr. 244-245, 392-393,
477). Arnold knew Steagall’s electrical experience and if he was uncertain
about the existence of a hazard, Arnold was uncertain. (Tr. 245-246). Berget
told Steagall that anything installed was up to code but that he would investigate
and get back to them. (Tr. 245, 393). Steagall believed any changes should wait
on Berget’s reply. (Tr. 394). Berget testified that he never planned to follow
up, but instead told them to contact those involved in the installation.   (Tr.
477-478).

On the same day Arnold filed (and
Steagall signed) a near miss report regarding other equipment on the roof that he
claimed was improperly installed. (Tr. 379-380, 393-394, 775). Near miss forms
were created to allow hourly personnel without computers to place reports in a
searchable database for supervisors to review. (Tr. 775-776). This one stated,
“[i]mmediate action taken.” (Tr. 380, 394). Anything uploaded to the database was
monitored to prevent it from being overlooked. (Tr. 776-777).  

On February 14, 2013, Arnold was
assigned to conduct a monthly electrical inspection at the coal lab and noticed
that nothing had been done with the motor.[6] (Tr. 246, 402). He turned
in his examination form and spoke to Steagall, who also had not heard anything.
(Tr. 246, 329, 396). They called Berget, who said that he had not found
anything, that he was not getting involved because it was not his area of
expertise, and that he thought the fan was installed correctly (based on the
specific gravity of propane and the location of the fan on the ceiling). (Tr.
246-247, 396-398, 482-483). According to Berget, he had made no effort to
research the issue and he again told them to contact those who installed the
lab to discuss classification under the National Electric Code (“NEC”). (Tr.
478, 483-485). Berget left the issue up to Steagall and Arnold. (Tr. 398).

Arnold then called the Area 3 safety
department between 2:00 and 3:00 p.m. and spoke with the safety specialist,
Tyler Martin.[7] (Tr. 247, 399, 684, 718).
Arnold called Martin because he was a former MSHA inspector and an underground
miner and in his opinion they often had electrical skill. (Tr. 247-248). Arnold
and Steagall asked Martin if the motor needed to be reclassified because of the
explosive mixture of gas or propane in the exhaust system. (Tr. 408, 685-686). They
wanted to know if the system was properly installed under the Mine Act. (Tr.
719, 722). Martin testified that Arnold threatened to call in a 103(g)
complaint if the issue was not addressed. (Tr. 719). Arnold and Martin went to
the lab and Martin took pictures with his company phone and said he would check
with the company that installed the motor. (Tr. 247-248, 250, 399, 403,
404-405, 687, 693-694, 688). Arnold and Steagall believed Martin would get back
to them about the issue in a few days. (Tr. 250, 405). Steagall did not mind
the delay because he believed there was no hazard. (Tr. 405, 437-438).

Martin testified that during the
conversation both Arnold and Steagall said there was an imminent danger in
their opinion as electrical specialists. (Tr. 719). Martin did not believe
there was a potential explosion hazard because the explosive level of CO was so
high that anyone in the room would die before it was reached. (Tr. 686, 688-689).
However, he was not a qualified electrician and did not have the same level of expertise
as the electricians regarding the motor or the NEC. (Tr. 689-690).   Steagall
did not recall anyone saying “imminent danger” during the conversation but that
was the reason they spoke with Martin, to determine whether this was an
imminent danger. (Tr. 409-410).  

Arnold testified he asked again if he
should tag out the motor but that Martin said they did not know if there was an
issue so it was not done. (Tr. 247, 282-283). Arnold told Martin and Steagall
he was going to note that management told him not to tag out the motor in his
monthly inspection notes (GX-1). (Tr. 248-249, 251). He wrote, “[c]oal lab,
Room 508 exhaust fan needs to be Class 1, Div. 1 motor. This has been reported
at least two months to management. Kerry Steagall and Tyler Martin are aware of
the issue, did not remove from service as per their direction.” (Tr. 249).

Steagall did not recall this discussion
but he did recall he and Arnold agreed not to take action until they heard from
Martin because it was not their area of expertise. (Tr. 403-404). Steagall
never told Arnold not to tag out the fan. (Tr. 471). He recalled telling Arnold
at other times that he could tag out equipment if they disagreed on the
existence of a hazard. (Tr. 471-472). Martin also denied telling Arnold not to
tag out the fan. (Tr. 730). He told Arnold and Steagall to research the NEC and
that if they believed it necessary, they should tag out or repair the motor immediately
under 30 C.F.R. §77.502 and the company policy. (Tr. 689, 719-721). He
testified they persisted in calling the condition an imminent danger but did
not tag it out. (Tr. 721).

On February 19, Steagall typed a short
report about the motor based on his (and to an extent Arnold’s) notes and gave
a copy to Arnold and Tim Ramirez (GX-5).[8] (Tr. 412-413, 469-470,
505, 510). Arnold reviewed the report and may have corrected errors. (Tr.
469-470). Steagall was not asked to make the report; he wanted to make a record
and update Ramirez. (Tr. 412-413). The report included notes on Berget, Martin,
and the pictures. (Tr. 413-414, 505-506). The notes indicated that Martin had
promised to get back to them as soon as possible but had not done so. (Tr. 414,
508). The document does not contain the phrase “imminent danger.” (Tr. 414). Ramirez’s
copy was left on Ramirez’s desk. (Tr. 470).

Later that day, Arnold and Steagall
asked Martin what he had learned about the motor. (Tr. 249, 405, 508, 690-691,
794). Other electricians were present, including Ben Yazei and Lawrence Beyale.[9]  
(Tr. 252 406-407, 411, 794). Martin said he had contacted the manufacturer and
then talked about gas, air mixtures, lower explosive limits, and the
independent nature of the monitoring system. (Tr. 250-251, 691, 726). He also
noted that, based on a letter written about the room by an outside electrical
expert, the room did not fit any of the NEC classifications. (Tr. 691, 725).

According to Martin, Arnold and Steagall
still thought an explosive mixture could make its way through the exhaust
system. (Tr. 726). Arnold felt that Martin raised irrelevant issues unrelated
to the installation questions he asked regarding the NEC. (Tr. 250-251, 371-373).
At hearing, he conceded the NEC dealt with the topics Martin raised. (Tr.
375-376, 378). Steagall recalled that Martin did not have any answers to their
questions despite having sufficient research time, though he did not recall
specifics of the conversation. (Tr. 405-406).

Arnold and Martin looked at the fan
again and saw that it was full of dust. (Tr. 400). Steagall told Arnold to
vacuum out the motor and to take “before and after” photographs with his cell
phone. (Tr. 252, 400, 410). Arnold was allowed to use his phone because the
batteries in Steagall’s camera were dead. (Tr. 401, 461). Arnold took pictures,
cleaned, and then sent the photos to Steagall’s company computer. (Tr. 253,
373). Steagall did not know if the fan was locked out while Arnold cleaned it. (Tr.
404). That would have been standard procedure, but failure to do so would not
have been a big issue because there were no moving parts. (Tr. 404).

During the interaction with Martin,
Arnold said that if the motor was not removed from service or fixed he was
going to call in a 103(g) complaint. (Tr. 250-251, 692). According to Arnold,
Martin told him to “do what he had to do.” (Tr. 250-252). Martin testified he
told Arnold he had every right to make a call if he felt there was a hazard,
but asked if he had done everything in his power to address the situation. (Tr.
692, 726). In Martin’s opinion, Respondent made safety a priority and miners
should make a job safe before proceeding. (Tr. 692). Steagall did not recall
this exchange. (Tr. 407-408). He also did not recall anyone saying “imminent
danger” but it may have been part of the conversation. (Tr. 407). Beyale also
did not hear anyone say “imminent danger” though he was only listening
intermittently. (Tr. 794-795).

Later, Arnold called Barry Dixon and
suggested filing a 103(g) complaint.[10] (Tr. 253, 803). An
employee could make a 103(g) complaint, but Arnold usually went through Dixon. (Tr.
336-337). If Arnold and Dixon disagreed, Arnold would file anyway. (Tr. 337,
806). Arnold contacted Dixon because miners were encouraged to follow the chain
of command and give the company a chance to fix things before contacting MSHA. (Tr.
253, 270, 273, 338, 418, 548-549, 551, 755, 807). If an issue brought to a
supervisor was not addressed in a day or two the miner would continue up the
chain before calling MSHA. (Tr. 270, 418, 755, 807). However, imminent dangers
could be tagged out immediately.   (Tr. 273, 418-419, 471). Managers discussed
this policy during safety meetings, Part 48 training, and had it posted on the
union bulletin board. (Tr. 253-254, 272-273, 548, 652-653, 676, 807). Ruth
Williams testified she had, at Respondent’s request, told miners to contact
supervisors before making 103(g) complaints.[11] (Tr. 826-827). In light
of this policy, Arnold was afraid of retaliation if he called MSHA. (Tr. 806). In
fact, Dixon testified that Shawn Goeckner[12] and Mark Hoffman[13]
told him in 2007 or 2010 that they believed Arnold was making 103(g) complaints.
(Tr. 675-676, 807-809). Dixon believed the company was not supposed to seek the
source of anonymous complaints. (Tr. 809).

Here, Arnold explained the issue and
Dixon agreed, as an electrician, that there was an explosion hazard and that
the configuration did not meet NEC standards. (Tr. 803-804). During the
discussion Arnold did not use the term “imminent danger” and did not believe
there was one. (Tr. 253, 804-805). Dixon believed there was an imminent danger
because management had known of the condition for two months and failed to act.
(Tr. 804-805). Dixon did not recall Arnold mentioning whether Martin told him
twice he should tag out the motor if he thought there was a hazard. (Tr.
812-813). After the conversation, Dixon agreed to call in a 103(g) complaint
because he believed there was an imminent danger. (Tr. 253, 336, 496, 804-805).

At 4:00 p.m. Martin was traveling with
MSHA Inspector Williams when Hager called to tell her about the 103(g)
complaint. (Tr. 693, 815). Williams told Martin about the complaint and noted
that Martin seemed familiar with the issue. (Tr. 694, 816). Martin assumed
Arnold had made the call and told Williams that he knew Arnold had made the complaint
while describing their earlier exchange. (Tr. 694-696, 816-817). The complaint
was anonymous but he believed his assumption was logical. (Tr. 695-696). Williams
testified she ignored Martin’s comment but that he repeated it several times. (Tr.
817). Martin could not recall if he told Williams that Arnold only gave him
half a day to address the issue. (Tr. 696).

Williams, Martin, and Beyale (the
miner’s rep) then went and looked at the motor. (Tr. 696, 789-790, 815-816). At
the lab, Williams spoke to the lab tech, Collins, who said he was the only
person who worked on the fan. (Tr. 817-818). This was the first time Beyale saw
the motor and he did not know who installed it. (Tr. 698-699, 790, 816,
818-819). Beyale admitted to Williams that the electricians had not inspected
the roof each month, but that they should have. (Tr. 698-699). Williams
inspected the motor and saw that the wires were visible from looking at holes
in the structures and that there was coal dust on the motor and wires. (Tr.
818). Beyale felt the dust could catch fire if the wires got hot. (Tr. 819). The
group then discussed whether the motor was suited for the area and Martin
provided detailed information about the motor. (Tr. 699-701, 731, 790, 819). Martin
never opted out of the conversations because he was not a qualified electrician
or unfamiliar with the coal lab. (Tr. 699-700). Martin pushed dust out of the
way to take pictures of the rotating motor with his company phone. (Tr.
699-701, 731-732, 819).

Martin told Williams he believed that
the motor was in compliance and without issue. (Tr. 791). However, he later
said that Arnold had asked him to look into the motor but had only given him
half a day. (Tr. 791, 820). Martin was upset about the situation and not having
enough time and said that if he went down he would bring Arnold, Steagall, and
everyone else involved down with him. (Tr. 791-792). Beyale made note of
Martin’s comment (GX-3). (Tr. 793). Williams was only concerned with the 103(g)
and told Martin to stop worrying about Arnold. (Tr. 256, 792-793).

Martin, Williams and Beyale then returned
to the electrical shop to discuss and research the NEC with respect to open-type
motors. (Tr. 701, 729, 819-820). Williams determined that there was no imminent
danger but that a citation may have been appropriate. (Tr. 702, 820-821). She
wanted to review the NEC and the monthly electrical inspection before making a
decision.   (Tr. 702). They discussed whether the examiners had conducted
inadequate examinations because they may have known about the condition for
months without taking corrective action. (Tr. 702, 729). Martin believed he
gave Williams the monthly inspection reports from November 2012 to February
2013. (Tr. 702, 819-820). Williams also spoke with other MSHA personnel to get
their opinions. (Tr. 702, 729, 820-821). During the discussion Martin asserted
his research showed the lab was not classified under the NEC. (Tr. 702, 820).

Sometime that evening, Martin called Val
Lynch to tell him that a 103(g) complaint was filed.[14]
(Tr. 735). Lynch and Martin had already spoken earlier in the day about the
issue (the first Lynch had heard about it) and Lynch had believed that Martin
had the condition under control. (Tr. 734-735, 741, 758-759). During the call, Martin
told Lynch that Arnold had threatened to call in a 103(g) complaint if nothing
was done and updated him on all of the other details with the motor. (Tr.
735-736, 742, 769-770).

Around 8:30 - 9:30 p.m., Martin called
Lynch again and told him about the 103(g) inspection. (Tr. 702-703, 736, 769). Martin
described the pending citation and that Williams planned to return the next
day. (Tr. 736). He described his discussion with Williams about the NEC, which
he believed had settled the issue unless her supervisors disagreed. (Tr.
736-737, 770). At one point Lynch testified that they did not discuss Arnold on
this call but later he recalled Martin saying he told Arnold and Steagall to
tag out if they believed there was a hazard.[15] (Tr. 703-704, 737, 770).
In neither call did Martin say he thought there was a hazard. (Tr. 782). Lynch
did not hear about the complaint again that night. (Tr. 737).

At 9:44 p.m., after speaking to Lynch,
Martin e-mailed management about the 103(g) inspection (GX-4). (Tr. 703,
487-490, 592). Lynch did not tell him to send the e-mail. (Tr. 704). The e-mail
contained several references to Arnold. (Tr. 704). Specifically, it contained
information about the motor and that Martin had learned about it from Arnold
(meaning Martin was aware of the hazard and Arnold’s threat to call in the
complaint). (Tr. 489, 529-530, 618-619, 704, 739).   Martin wrote that he had
told Arnold that he believed the fan complied with the NEC and that if they
believed there was an imminent danger they should tag out and make repairs. (Tr.
594-595, 722). The e-mail indicated that a citation was possible for the motor
or for an inadequate exam. (Tr. 613-615, 705). Martin did not think it was
inappropriate to write about the motor even though he was not a qualified
electrician. (Tr. 704-705).

Ramirez received this e-mail because he
was responsible for the area at issue. (Tr. 487-490, 592). This was the first
he heard of the complaint. (Tr. 488-490). Despite the e-mail placing Arnold’s
name in the same sentence as the phrase “103(g) complaint,” Ramirez did not
believe that Arnold called in the complaint. (Tr. 489-490). Ramirez concluded
that the problem may have been resolved. (Tr. 595). Ramirez did not question
Martin’s motives in sending an e-mail despite never receiving such an e-mail
before. (Tr. 522). Lynch received Martin’s e-mail the next day. (Tr. 737, 742,
769).   He learned from that e-mail that Arnold had gotten Dixon to call in the
103(g) complaint and believed Arnold had told Martin about it. (Tr. 737-739,
742). He believed that Arnold called in the 103(g) but he did not care who did
it, he only cared about dealing with the issue. (Tr. 739, 742-743). Berget
learned about the complaint from someone in electrical. (Tr. 481-482). Hoffman
learned about it from Ramirez shortly after it was received and never saw Martin’s
e-mail or the complaint. (Tr. 627-629). Hoffman and Ramirez later spoke about
the issue, but not specifically about the 103(g). (Tr. 629-632). Rudy Halgryn also
learned about the motor from Ramirez.[16] (Tr. 831-832). There
were rumors that Arnold made the complaint, but Halgryn saw documentation
showing Dixon had made the call. (Tr. 835). Halgryn did not recall if Martin’s
e-mail said Arnold made the call. (Tr. 835-836). Like Lynch, Halgryn testified
he was not concerned with who called. (Tr. 836).

On February 20, Arnold learned
Respondent knew about the 103(g) complaint because the miners knew and Williams
and James Hager were at the mine. (Tr. 254-255, 822-823). Beyale was the first
person to speak with Arnold and he told Arnold that Martin was upset, said that
he had not been given enough time, and that he would take Arnold down with him.
(Tr. 255). When Arnold saw Williams at the electrical shop, she confirmed
Martin’s comments. (Tr. 257). Steagall did not recall anyone being upset by
MSHA’s presence. (Tr. 415-417).

Williams and the miners then discussed
the motor, the citation, the complaint, and the NEC. (Tr. 257, 824). Steagall,
Gary Long, Ramirez, and Ned Begay were also in the shop. (Tr. 257-258). Arnold
mentioned that he took photographs of the motor. (Tr. 257). Williams requested
copies, Steagall printed them out, and then Arnold gave them to her. (Tr. 257,
414, 491, 823). Begay asked where Williams got the photographs and she referred
to Arnold and Steagall. (Tr. 823). Ramirez learned about the photographs later.
(Tr. 491). While they were talking, Val Lynch arrived. (Tr. 258, 415). There
was a confrontation between Lynch and Hager about the law and the monitoring
system. (Tr. 258).

Because the confrontation was getting
out of hand, Hager said they would go look at the motor to see how it worked. (Tr.
258, 823-824). The group, including Arnold, Lynch, and Martin (but not Ramirez
or Steagall) drove to the coal lab. (Tr. 260, 496-497, 705, 745). After they
arrived at the lab, they went to the roof and looked at the open-faced motor. (Tr.
260). While there, Martin provided information about the lab, the fan, and the
NEC. (Tr. 745-746). Martin was knowledgeable and experienced with electrical
issues even though he was not a qualified electrician and Lynch did not
question his ability to discuss these issues. (Tr. 746). Lynch did not seek
Arnold’s input as an electrician. (Tr. 746).

After looking at the motor, a heated
discussion occurred over whether Arnold should have locked or tagged out the
motor. (Tr. 260, 497-498). Lynch and Hager discussed whether lock out was
appropriate if someone was complaining about an imminent danger. (Tr. 824-825).
Williams testified Lynch looked at Arnold when he spoke. (Tr. 825). Arnold
testified that Lynch said Arnold had failed to do his job and questioned his
qualifications and abilities. (Tr. 260-261). Williams quoted him as saying “I
believe I have unqualified people here. If they walk away, then you are not a
qualified electrician.” (Tr. 825). Lynch testified that he said whoever did the
examination was bound by the Mine Act to lock it out or tag it out. (Tr. 706,
750-751). Lynch asserted that he did not say the electricians were unqualified,
but instead that if electricians were not seeing imminent dangers, they needed
to look at their qualifications. (Tr. 705-706, 748). At hearing, Williams
agreed that she would be concerned if an electrician did not tag out or correct
potentially dangerous conditions. (Tr. 827). Lynch also said that reporting an
issue to a supervisor was not a mitigation of a hazard. (Tr. 747-748). Lynch
testified that he was not angry, but that he was frustrated and may have raised
his voice. (Tr. 748-749).

In response, Arnold asked Williams and
Hager if Lynch’s statements amounted to threatening, harassing, and
intimidating a miners’ rep. (Tr. 261, 706-707, 749, 825). Arnold never
specifically said there was harassment or threats. (Tr. 750). Lynch said he was
asking questions, not threatening. (Tr. 749). Hager and Williams tried to
intervene, but Williams could not recall if she told the managers not to
retaliate. (Tr. 825). The meeting devolved into free-for-all argument. (Tr.
261). At one point, Arnold stated that Hager stepped between Lynch and Arnold
because Lynch was so upset. (Tr. 261). Lynch stated that he simply stepped back
to lessen the tension. (Tr. 750-751). Ramirez heard about this confrontation
and later heard during the grievance process that Arnold felt threatened. (Tr.
498-499). Ramirez also talked to Martin about the confrontation, but overlooked
the issue and never spoke with Lynch. (Tr. 499-500).

Martin and Arnold also argued over
whether Arnold had called the condition an “imminent danger” on February 19. (Tr.
261-262, 707). At one point, Martin called Arnold a liar. (Tr. 262). When they
left the area to return to the electrical shop, Martin and Arnold were still
arguing. (Tr. 262). Eventually, Arnold said that he might have said “imminent
danger” in the heat of the moment on the 19th but that if he did he
was sorry and Martin and Arnold shook hands. (Tr. 262-263, 330-331, 707). Arnold
did not believe he actually said “imminent danger,” he was trying to calm the
situation but he conceded that management may have relied on his statement. (Tr.
263, 331). Inspector Williams’ notes for that day included two references to
“imminent danger,” which indicates to Arnold that she heard that phrase before
reaching the lab (Tr. 332-333, GX-2). He also conceded that he may have said
the words “imminent danger” when Martin was talking about irrelevant issues. (Tr.
372).

Martin did not believe Arnold was trying
to calm tension, he believed he was trying to cover up a lie but finally
accepted the truth. (Tr. 707-708). Martin believed that no one discovered this
lie until a later MSHA investigation found Arnold had written about an imminent
danger in his monthly inspection report and failed to report it.[17]
(Tr. 714). Martin was frustrated that qualified personnel were not making a
good faith effort to follow Respondent’s policy and the Mine Act to correct or
tag out hazards. (Tr. 707-708, 726-727, 729-730). However, there was no tension
between Martin and Arnold on a personal level. (Tr. 708). Ramirez did not know
about Arnold and Martin’s confrontation until the investigation. (Tr. 523).

When the group returned to the
electrical shop, Williams said Respondent would get a citation for the motor
(GX-3). (Tr. 263-264, 491, 705, 708, 753-754). No imminent danger order was
issued, indicating that the hazard was not apparent to the inspector. (Tr.
333-334). Lynch received the citation, which included photos he later learned Arnold
took. (Tr. 744-745). Lynch tried to argue that the citation was written under a
mistaken belief about the correct version of the NEC and a misapprehension as
to whether the room was classified. (Tr. 771-772). Martin also reviewed the
citation that day. (Tr. 708-709). Steagall went home before the citation was
issued and was not aware of it until he returned to work on March 1, 2013. (Tr.
385-386, 417). Steagall testified that employees were general upset when a
citation was issued and in this case they were upset both because they thought
it was not citable and because they wanted to maintain a safe working
environment. (Tr. 417). However, Steagall never heard about anyone being angry.
(Tr. 418).

When he learned of the citation,
Ramirez’s first thought was that he needed to get the issue resolved by
modifying or replacing the motor. (Tr. 593). At some point before or after the
citation, Ramirez ordered Steagall to tag out the motor while they talked to
MSHA. (Tr. 427-429). While he was addressing the issue, Ramirez learned that Steagall
and Martin had known about and had discussed the issue for a while but that
nothing was done to correct or isolate the problem. (Tr. 593). Ramirez was
concerned that a potentially hazardous condition was not isolated to prevent
injury. (Tr. 593-596). This concern led Ramirez to review Arnold’ previous
monthly inspections, where he found that Arnold had written in the section
reserved for imminent dangers but that his supervisor told him not to lock out.
(Tr. 596). At some point, Ramirez contacted Halgryn and Hoffman to discuss
whether those involved, including Arnold, failed to act properly. (Tr. 833).  

On February 22, Ramirez summoned Arnold
to a meeting with a union rep and gave him a form (GX-9) stating that he would
be held out of service pending an investigation and that they would contact him
when they were ready for his return. (Tr. 264-266, 514-517, 633-634). The
investigation would cover whether there was an improper examination. (Tr.
515-517). Mark Hoffman had drafted the notice with help from Lynch, Martin, and
Leonard Palmer without consulting with Ramirez or Halgryn. (Tr. 518-519,
632-633, 709-711, 835). In drafting the notice, the group discussed the
lock/out tag out policy, Arnold’s identification of the motor as an imminent
danger as a certified electrician, the life-saving rules, the regulations,
miner’s rights information, refresher training, and the Mine Act. (Tr. 660-662,
709-710, 727-728).

The notice stated that Arnold told
Martin that the condition was an imminent danger, that he did not attempt to
isolate it once identified, and the he violated the Mine Act. (Tr. 274-276,
515-516). With respect to lock out/tag out, Respondent had policies requiring
the isolation or repair of electrical issues if an electrician had a good faith
belief that there was an imminent danger and prohibiting leaving defective
equipment in place. (Tr. 349-350, 354-355, 602-603, 810, RX-8, p.2). Goeckner
testified that even potential hazards that could cause injury, not just
imminent dangers, should be tagged out. (Tr. 841-842). At hearing Arnold
reviewed the lock out/tag out policy (RX-1) and related isolation policy
(RX-6). (Tr. 345-346, 348, 353-354). Arnold was familiar with the requirement
that he tag or lock out hazards and saw it on the policy on the bulletin board
(RX-4), though he was not familiar with the policy in written from. (Tr. 346-352).
The collective bargaining agreement (RX-5) prohibited miners from violating the
law or company rules, including the lock out/tag out policy. (Tr. 352-353).   The
law, in particular 30 C.F.R. §77.502, was consistent with the lock out/tag out
policy. (Tr. 357-359, 370, 462, 811).

At hearing, Arnold noted that the
specific company policy regarding lock out/tag out and the Mine Act were not included
in the suspension notice. (Tr. 276-278, 355-356). Arnold disputed these claims
because he never believed the condition was an imminent danger. He had only
failed to lock out the condition because he had been ordered not to, and, he
had never been written up for violating the Mine Act. (Tr. 274-276, 300, 350-351,
355, 358). Arnold believed that he was competent in energy risk recognition and
isolation procedures. (Tr. 348). In fact he had followed company policy in the
past and tagged out a fan on an earlier occasion. (Tr. 368-369). He was not
disciplined though he believed he was supposed to report, rather than tag out,
equipment because of production needs. (Tr. 368-370).

The notice also alleged Arnold violated
Respondent’s cell-phone policy (RX-2) because he took pictures with his camera
phone without permission. (Tr. 276-277, 355, 517, 520). The cell phone policy prohibited
the use of non-company cell phones at the mine. (Tr. 356). The policy had been
in place but had not been enforced against the electricians until June or July
2013. (Tr. 759-761). A meeting was held at that time to explain that the policy
would be enforced. (Tr. 760-761). Arnold agreed that he violated the policy,
but maintained that Steagall had given him permission. (Tr. 277, 357).

A related policy (RX-3) prohibits taking
and distributing photographs outside the company without written permission
from management. (Tr. 356, 526-527). No permission was needed to take a photo
(if it was taken without a phone) unless it was being distributed outside the
company. (Tr. 530-531). Arnold had told Ramirez that he gave photographs to
MSHA. (Tr. 528). While Arnold had oral permission from Steagall, he did not
have written permission from upper management. (Tr. 356-357). Steagall agreed
that Arnold had permission and believed that if there was any problem that he,
Steagall, should have been held responsible. (Tr. 460-461).

Arnold testified that he believed Lynch
held him out of service because of the 103(g) complaint and that he told
Ramirez that this was the case, but that Ramirez did not respond. (Tr. 265,
274). Ramirez did not recall this comment; he did recall Arnold signed the
documents and left without speaking. (Tr. 514-515). Beyale agreed the
suspension was retaliation for the 103(g). (Tr. 795-796). Ramirez was upset that
Arnold did not follow the chain of command and that Arnold did not bring the
issue to him. (Tr. 265-266, 270, 338-339, 509-510, 545). Arnold explained that
Ramirez was a mechanical engineer and that he did not see the benefit of going
to him with an electrical issue. (Tr. 266, 339). However, Arnold knew Ramirez
could have contacted Steagall, Berget, or anyone else to address the issue but
still did not call him. (Tr. 339). Ramirez testified that even if Arnold had
come to him, Arnold was the qualified electrician and expert on the issue. (Tr.
510).

Ramirez did not say anything to Arnold
indicating how long the investigation would take, only that he would be
notified when he could return to work. (Tr. 266, 340, 517). The suspension
started that day and was indefinite. (Tr. 266-267, 517, 676). Ramirez testified
he said he would conduct the investigation as quickly as possible, but Arnold
did not recall this comment. (Tr. 340, 516-517). According to Hoffman, when an
investigation begins, no one knows if it will be with or without pay. (Tr.
649). If, upon investigation, a suspension is justified then it is unpaid but
if it is a punishment less serious than suspension, the worker is paid. (Tr.
649, 657). It was easier for payroll to hold out of service without pay and
then pay afterwards. (Tr. 657-658. 676). However, if Respondent wanted to, it
could have held Arnold out with pay. (Tr. 649). Hoffman explained that
Respondent understood that it was difficult to be held out of service without
pay, so it was important that investigations would be conducted quickly. (Tr.
677-678). He believed seven days would be a long time to be held out of service;
the longest he could recall was four days. (Tr. 677).

On the same day Ramirez also told Steagall
he was being held out of service for an investigation into whether he failed to
take the motor out of service, despite telling Martin there was an imminent
danger, and for ordering Arnold not to take it out of service (RX-8). (Tr. 434,
440-442, 596-597). He was told he would be paid. (Tr. 434, 682). Ramirez would
not say if anyone else was being held out of service -- even though Steagall
specifically asked about Berget and Martin. (Tr. 435). He asked about Berget
because, as an engineer, he needed to be involved when Steagall had questions about
a possible imminent danger. (Tr. 438). He asked about Martin because he once worked
for MSHA. (Tr. 439). Steagall was surprised he was held out of service because
only he and Arnold had all of the facts and documentation he had sent to
Ramirez (GX-5). (Tr. 435-437). Steagall offered to answer questions at that
time, but Ramirez told him to go home and not to talk to anyone. (Tr. 436-437).
Steagall did not agree with his discipline because they had never determined a
hazard was present and never told Martin there was an imminent danger. (Tr. 439-442).
He was familiar with the policies at issue, but did not believe the scenario
described in the write-up occurred. (Tr. 442). This document did not mention
the cell phone policy or Section 77.502. (Tr. 461-463).   He noted on the
document that he did not agree with it, signed it, and gave it back to Ramirez.
(Tr. 442).

Steagall believed the management
generally held supervisors to a higher standard than hourly employees. (Tr.
433-434). However, he believed that in the electrical department everyone was
treated equally because they were all certified. (Tr. 433-434). That was why
they worked jointly on this issue and contacted Martin and Berget together. (Tr.
434).   Lynch, Ramirez, and Hoffman did not believe that supervisors were held
to a higher standard than hourly employees or that long-term employees were
held to a higher standard than new hires. (Tr. 548, 653-654, 761). Ramirez
never worked at a place where rules were enforced differently than written
policy or were enforced inconsistently. (Tr. 576-577).

During the week he was off, Arnold
argued with his wife who was nervous because she had just started a new
business and they were uncertain about his job. (Tr. 267). Arnold had six
children. (Tr. 267). During his suspension, Arnold considered that he should
stop complaining about safety issues and argued with his wife about his
propensity to make complaints. (Tr. 267-268).

While Arnold and Steagall were
suspended, Ramirez conducted an investigation. (Tr. 639, 833, 840). During that
investigation, Ramirez tried to determine issues with the lab, efforts made to
address these issues, and whether the motor had been isolated. (Tr. 524, 597). He
gathered information from Arnold, Steagall, Berget, Lynch, Martin, and people
at the lab. (Tr. 524, 526, 598). He also looked through the lab inspection
records. (Tr. 526, 597). The investigation found that Arnold and Steagall were
confronted with some level of electrical hazard and that they did not lock it
out or correct it. (Tr. 842).   He also learned that Martin was aware of the
condition. (Tr. 491-492).

During the investigation, Ramirez and
Lynch met to discuss the situation and Ramirez sought Lynch’s input on
potential discipline for Arnold. (Tr. 757). They discussed the severity of the
condition, the response Arnold sought from Steagall, and the chain of command
issue. (Tr. 494-495). Lynch wondered whether the fan issue had suddenly arisen,
whether changes were made, and why Steagall had not acted. (Tr. 496, 501, 740).
It did not bother Lynch that he had a confrontation with Arnold before working
on his discipline. (Tr. 759). He considered it part of his job and there were
often people upset with him. (Tr. 759). Also, Lynch’s input focused on the
technical support and the regulations. (Tr. 759).

Part of Ramirez and Lynch’s discussion
dealt with the monthly inspection form. (Tr. 493-494). Around the time of the
citation, Lynch had requested that Ramirez bring him the monthly electrical reports
from November 2012 to February 2013. (Tr. 492-493, 587-588, 612, 740, 743). He
had received all of the reports that day, except for the February report, which
he received on March 1 from MSHA. (Tr. 743, 756-757, 765). Lynch wanted the
reports to learn what had occurred, how it was handled during examinations, and
how they found an imminent danger regarding the fan. (Tr. 740). When he and
Ramirez met, Lynch noted that the reports required electricians to note hazards
or imminent dangers and to correct or repair them immediately. (Tr. 757). Anyone
who did not complete the form also broke not only the lock out tag out policy
and the life-saving rules, but also the nearly identical standard in 77.502. (Tr.
757-758, 778-779). Ramirez had already spoken with Arnold about the Act, but
Lynch wanted to emphasize the life-saving rules, which were visibly posted in
the mine.   (Tr. 758, 779-780).

Ramirez and Lynch also agreed that they
believed Arnold had done an inadequate exam of the coal lab. (Tr. 501-502). The
inadequate exam was self-evident because the condition was discovered a year
after it was installed. (Tr. 502). The investigation determined that Arnold had
only listed the condition in the electrical inspection reports for two months. (Tr.
502-503). However, Ramirez did not know when the electricians learned about the
motor on the roof of the lab and they had complained to him about items being
installed in the lab without their knowledge. (Tr. 504-505). Steagall’s e-mail
included these complaints, though Ramirez did not remember when he got it or if
it was available when he was doing the investigation. (It was not date
stamped). (Tr. 506-509). He did not recall using it during the investigation
and probably would have used such if he had it. (Tr. 509).

During the investigation, Ramirez had
access to an e-mail Berget sent on February 20. (Tr. 478-481, 510). He received
this e-mail before holding Arnold out of service. (Tr. 524-525). Berget’s email
described the issues at the lab, including the motor that Berget did not want
to handle (GX-7). (Tr. 478-481, 510). Berget requested that Ramirez instruct
the electricians whom he supervised to stop asking him about those issues. (Tr.
478-481, 510). The electricians wanted to know if the motor was safe, but Berget
had no expertise in the area and did not want to do research. (Tr. 484-483,
512). Berget was the chief electrical engineer, a qualified electrician but not
an expert in coal labs. (Tr. 512-513). This letter showed Berget was aware of
the motor and that Ramirez knew it before disciplining Arnold. (Tr. 510, 513). Ramirez
was not concerned about this letter because Berget was not an expert. He might
not have inspected the area; and he told Arnold and Steagall to follow up with
those who installed the motor. (Tr. 511-513). Ramirez believed he followed up
with Berget about what he had told Arnold and Steagall. (Tr. 511-512).  

Ramirez also investigated the cell phone
policy and whether someone had taken and distributed photographs outside the
company. (Tr. 597-598). Ramirez learned during the investigation that Martin
had also taken photos but did not know if Martin gave them to MSHA (GX-30). (Tr.
527-528, 530). Ramirez did not ask whether Martin had received permission for
the photos, because he was a salaried employee. (Tr. 531). Ramirez did learn
whether Martin used his phone to take photos; he was not concerned about it. (Tr.
531-532).

During the investigation, Ramirez also
learned that Steagall told Arnold he could hold off on the motor until he
received more information. (Tr. 545). However, Ramirez felt that if Arnold felt
there was an issue he should have acted. (Tr. 545-546). Management believed contacting
supervisors to get more information or going through the chain of command was
insufficient and did not relieve the miner of the obligation to follow the lock
out/tag out policy or the life-saving rules. (Tr. 545-546, 656).

Ramirez was not concerned that Berget
and Martin knew about the condition and never considered disciplining either. (Tr.
496, 513-514, 520-521). He never considered disciplining Martin because he was
not a qualified electrician. (Tr. 520-521). Lynch testified that while Martin
was not an electrician, he, and everyone at the company, was bound by the law
and company policy to lock out or correct hazards. (Tr. 546-547, 657, 746-747).
Ramirez never spoke to Martin about his previous knowledge of the potential
hazard. (Tr. 496, 513-514). If Martin was disciplined, Ramirez would not know
because Martin did not report to him. (Tr. 521). Lynch also never considered
disciplining Martin because he had the knowledge and expertise to determine
whether the fan was a hazard and was doing his due diligence to investigate the
issue. (Tr. 758, 782-783). Hoffman also never considered disciplining Martin,
even though he knew about the condition on February 14. (Tr. 642-643, 650-651,
GX-9). Ramirez did not consider disciplining Berget, who was a qualified
electrician, because he did not report to Ramirez (though he could have gone to
Berget’s supervisor). (Tr. 521-522).

On February 27 Ramirez interviewed Arnold.
(Tr. 281, 366, 525, 598). Benally and Dixon were also present. (Tr. 281). This
was the day Arnold would have returned to work if he had not been held out of
service. (Tr. 340-341). Ramirez did not recall why it took five days to talk to
Steagall and Arnold. (Tr. 525). It was likely day-to-day business got in the
way; it was not an additional punishment. (Tr. 525). He could have interviewed
them on February 22, but he could not recall his schedule. (Tr. 525-526). He
did not talk to anyone else about the specifics of this incident during those
five days. (Tr. 525). In the meeting Arnold told Ramirez that, as an electrician,
he did not know if the motor was a hazard and that he was seeking more
information. (Tr. 281-282). Ramirez asked Arnold whether he had given pictures
to MSHA, even though Arnold and others had told him about such earlier. (Tr.
526, 528-529). Arnold also told Ramirez that he had documented the cited issue
in the monthly inspection report. (Tr. 532). Ramirez had already received and
reviewed that report, but had not spoken to Lynch about it. (Tr. 533).

On February 28 Ramirez held a “consensus
triangle” meeting with Hoffman, Halgryn, and Goeckner to discuss Arnold’s
discipline. (Tr. 534-535, 539, 598, 632, 833, 840). Ramirez, as the person with
the most information on the situation, presented his findings including
Martin’s e-mail, Berget’s e-mail, Steagall’s documents, the monthly inspection
report, the interviews, and perhaps the citation, policies, standards, and
collective bargaining agreement. (Tr. 535, 539-540, 543-544, 619, 639-645). The
group determined that Arnold violated Respondent’s “life-saving rules” by
placing people in the “red zone” where they could be killed and by knowingly
violating a policy that could result in a fatality by not isolating or locking
out the hazard. (Tr. 600-602, 661). The group was worried that miners with less
expertise would be exposed to an explosion, because someone with more expertise
did not alert them. (Tr. 601). The group was also concerned Arnold was not
addressing other issues. (Tr. 537).

After discussing Arnold’s actions, the
consensus triangle determined discipline. (Tr. 535, 645). The options included
verbal warning, written warning, and suspension. (Tr. 841). While he could not
recall who made the various suggestions, Hoffman (who had final say) likely
suggested a written warning to ensure fairness and consistency with past
discipline. (Tr. 535-536, 645-646). Ramirez approved of a written or verbal
warning (though he made no recommendation). (Tr. 536). A verbal warning may
have been proper because Arnold had a clean record. (Tr. 537). The life-saving
rule issues were serious enough to warrant termination but given Arnold’s
record nothing more serious than a written warning was discussed. (Tr. 538,
602). The group came to a consensus on a written warning because Arnold saw an
imminent danger and a potential for explosion but had taken no action. (Tr.
536-537, 645-646, 599-600, 833-834, 841). The 103(g) complaint was not
discussed other than to say that Arnold should have taken action right away. (Tr.
538-539). Hoffman drafted the warning by himself, including language about the
Mine Act, and Ramirez wrote it. (Tr. 540-541, 543-544, 647, 835).

Arnold requested reinstatement by MSHA
on February 28, 2013, while he was still off work (GX-11). (Tr. 268-269). He
listed the discriminatory actions as his argument with Martin on February 19
and his arguments with Lynch and Martin on February 20 after the 103(g)
complaint. (Tr. 268). While Arnold had issues with Respondent in the past, this
was the first time he was disciplined for a 103(g) complaint. (Tr. 269). Under
the collective bargaining agreement, Arnold was not required to file a
grievance, an EEOC complaint, or a Wage and Hour complaint before filing a
105(c) complaint. There is no requirement to exhaust remedies. (Tr. 296-297). Lynch
learned about the complaint from Goeckner on March 1. (Tr. 765-766).

Concurrent with Ramirez’s investigation,
Hoffman conducted an investigation into Arnold’s harassment claim. (Tr. 638). At
some point, perhaps during the consensus triangle, Hoffman learned that Lynch
and Arnold had an argument and that Arnold was concerned that Lynch was
harassing him. (Tr. 634-635). HR became involved with a formal grievance
procedure under the collective bargaining agreement. (Tr. 635-636). Hoffman
conducted the investigation but never spoke with Arnold or Lynch and did not
investigate their conversation. (Tr. 636-637, 659). Hoffman eventually
determined that Dixon, not Arnold, filed the 103(g) complaint, so he found
there was no retaliation. (Tr. 636). Hoffman did not talk to Dixon about
Arnold, because Respondent did not know who filed the complaint. (Tr. 675).

On March 1, 2013, Respondent reinstated
Arnold and told him that he would be made whole for his time off. (Tr. 267, 273-274,
278, 280-281, 335, 523, 658). While he was held out seven days, he only missed
four days of work. (Tr. 334-335). When he returned to the mine site, Ramirez
gave him his first ever written warning (GX-10). (Tr. 278, 283). The reasons
for Arnold’s written warning were different from those given for his suspension;
it did not include references to imminent danger, Martin’s statements, or
company policy, including the cellphone policy. (Tr. 278-280, 282, 541-542). The
cell phone policy was not included because Steagall confirmed he had given permission.
(Tr. 282, 355, 544-545, 598-599, 648). Instead, the written warning included what
Arnold’s electrical inspection report had indicated, including his notation
that there was potential hazard. (Tr. 279-280, 542, 544, 620, 647-648). The
warning stated Arnold had seen a hazard but, as a qualified electrician, did
not correct or lock it out and referred to 77.502. (Tr. 542, 549, 623-624). Arnold
was also disciplined for giving photos to MSHA and Dixon. (Tr. 534). The
written warning also stated Arnold violated the Mine Act. (Tr. 280). The
warning did not mention the “lifesaving rules” and Ramirez did not recall
mentioning them to Arnold. (Tr. 620, 657). Ramirez told Arnold to bring issues
to him in the future. (Tr. 545).

Steagall also returned that day and
received a written warning. (Tr. 442). He disagreed with the warning because he
never determined there was a hazard with the motor-- just a possible condition.
(Tr. 442-443). He believed, but did not know or particularly care, that he got
a warning because Respondent received a citation. (Tr. 444-445).

A written warning is the first step in
the progressive disciplinary process.[18] (Tr. 325, 570, 761). Notices
of discipline were in the maintenance department and the off-site HR office.   (Tr.
569-570, 573-574, 587).   However, the collective bargaining agreement did not
cover progressive discipline, it was an unwritten rule. (Tr. 670). For purposes
of progressive discipline, Respondent considered disciplinary action, including
written warnings, to be active for 12-18 months. (Tr. 671). Records were kept
for different times depending on the miner’s behavioral record and the
seriousness of the transgression. (Tr. 671-672, 762). Records were kept so that
discipline could be graduated if changes to a miner’s behavior were not made. (Tr.
762). After the 12-18 month period, the records were not used but were retained
in the employee’s permanent file-- though Hoffman could not say why. (Tr.
672-673). Hoffman never considered these older discipline reports for miners with
clean records, though he did see them in the files. (Tr. 673-675).

The mine operator conducted performance
reviews for electricians every six months. (Tr. 286, 452, 847). Arnold received
a performance review in June 2013 from Steagall, the person most familiar with
his work (GX-12). (Tr. 287-288, 452, 454, 847). The review was solely
Steagall’s responsibility and no one could tell him what to include. (Tr. 454).
In that review, Arnold received a “meets requirements” grade for safety. (Tr.
288, 452-453, 560, 604). The comments section stated, “[n]eeds to follow up on
safety hazards by doing the SLARS to inform others as to hazards found on the
mine site.” (Tr. 289, 453-454, 844). SLARS was a safety program created by the
company and electricians were encouraged, but not required, to enter at least
two hazards into SLARS each month.[19] (Tr. 283-286, 453, 572).
Arnold did not report two hazards each month, but he did report some hazards. (Tr.
285). Steagall felt Arnold was not getting his documents in, but he was not
missing hazards or doing anything wrong. (Tr. 453-454).

Arnold asked Steagall why SLARS was used
in the evaluation because Goeckner had told him that non-participation would
not result in discipline. (Tr. 289, 453, 604, 680, 842-843). Steagall told him
that the order to include SLARS had come from “upstairs,” and Arnold understood
this as retaliation from Lynch, who was still mad about the 103(g) complaint. (Tr.
289-290). Arnold then raised the issue with Goeckner. (Tr. 291, 297, 360-361,
842). Goeckner agreed that SLARS should not have been used and promised to
speak with Ramirez. (Tr. 291, 297, 843-845). Arnold expected his review to be
changed to “very good” and for the references to SLARS to be removed. (Tr. 291).
Arnold was told that the performance review was going to be redone by Ramirez. (Tr.
291-292, 360-361). Ramirez had already signed the document as the
superintendent (RX-16). (Tr. 624-625).

Shortly thereafter, Goeckner told
Ramirez about Arnold’s concern with his rating.   (Tr. 561, 604, 843). Goeckner
also spoke with Steagall about it even though he was retired. (Tr. 843, 845). Ramirez
and Stegall said that Arnold was not participating in SLARS, but Goeckner
explained it was not mandatory.   (Tr. 843). Goeckner told Ramirez to re-do the
crews’ safety ratings without SLARS, but did not tell him to increase Arnold’s
rating.[20] (Tr. 561, 604-605,
843-846, 849). Goeckner had no further involvement. (Tr. 843-844). Ramirez
followed Goeckner’s instructions and reevaluated Arnold’s entire safety rating
(not just the SLARS information). (Tr. 562-563). Goeckner did not recall
telling Ramirez to review the entire rating and he expected Ramirez to simply
remove references to SLARS. (Tr. 845, 848, 850). Ramirez decided that Arnold
had not met expectations because he walked away from a hazard without taking
action. (Tr. 562). Ramirez changed the rating to show that Arnold needed to
take action and follow the chain of command. (Tr. 562, 610). Ramirez referred
to the motor issue and the fact that Arnold did not bring the issue to him. (Tr.
563, 610). Ramirez did not believe Arnold was being held accountable and wanted
to convey that information. (Tr. 622).

Ramirez
did not change the “accountability” section that was marked “very good,”
because he had only been asked to look at safety. (Tr. 566, 605, 622).

Arnold found his changed performance
review on the desk of his new foreman, Gene Lee, where anyone could see it
(GX-13). (Tr. 292-293, 567-568). Steagall’s writing was whited out to make room
for new notes. (Tr. 455, 457). No one discussed the changes with Arnold or gave
him the document (though he never asked for it); he had just found it. (Tr.
294, 365-366, 567-568). Ramirez testified that Arnold was not contacted because
the overall grade of “good” was unaffected and it had been given to Lee. (Tr.
365, 568-569). The last two paragraphs of the comments section had been changed
to say Arnold needed to take accountability when he saw issues, that he was
vocal about bringing up safety issues, that he needed to greatly improve on
bringing issues up the chain of command (and that this would be his focus in
the future), and that he actively looked to improve the mine site. (Tr.
294-296, 362-363, 566-567, 603-604, 610, 621-622, 846). The safety section had
also been whited out and lowered from “meets expectations” to “needs
improvement.” (Tr. 292-293, 295, 363, 845-846). No one contacted Steagall about
the changes and he disagreed with them. (Tr. 455-457). The changes were unsigned,
but the comments were in Ramirez’s handwriting. (Tr. 361-362). Arnold believed
the notes referred to the motor, the 103(g) complaint, and failing to bring
issues to Ramirez. (Tr. 294-296, 363-364). Ramirez stated the notes were related
to the motor but not the 103(g). (Tr. 563, 566).

Ramirez and Goeckner did not discuss the
changes and Goeckner was not aware of them. (Tr. 846, 849-850). Goeckner was
not surprised by the changes. (Tr. 847-848, 850). Goeckner believed the changes
were appropriate given the written warning and the conduct leading to it. (Tr. 849-851).

Arnold expressed concern to Lee over the
changes. (Tr. 292). Lee told him Ramirez made the changes, so Arnold made a
note about the changes and went to Ramirez to initial it. (Tr. 292-293, 361-362,
567-568). Arnold and Ramirez did not discuss the changes. (Tr. 293-295). Arnold
knew that Ramirez would request, review, and sign some (but perhaps not all)
evaluations, but he did not know Ramirez would make changes. (Tr. 337-338,
361). Ramirez assumed that Arnold would be upset about the rating and take it
as a gut punch. (Tr. 569). Hoffman later investigated the evaluation and found
that Respondent was fair and consistent in discipline involving life-saving
rules. (Tr. 637).

Unlike written warnings, evaluations
were not supposed to be a part of the progressive discipline process and, under
an agreement with the union, they were not supposed to be kept. (Tr. 325). However,
Arnold believed the records were kept and that when a miner was disciplined,
the earlier evaluations were brought up to show a trend or history. (Tr. 325). Ramirez
and Hoffman disagreed that the files were used for discipline and argued they
were only used by front-line supervisors to improve performance. (Tr. 570-571,
668-669). However, Ramirez conceded that performance evaluations were sent to
HR and sometimes mistakenly left in the files. (Tr. 571, 587). The amount of
time they stayed in the file would vary depending on the particular manager;
Ramirez had never cleaned out his files. (Tr. 587, 618). The CBA was specific
on how employees were paid and the evaluations had no bearing on miners’ pay
(it could affect salaried employees). (Tr. 669-670). Dixon believed that an
evaluation could affect a miner’s pay because discipline on the record
(including discipline for violating an MSHA regulation) could be used to
disqualify an employee for different positions. (Tr. 811-812).

At hearing, Arnold reviewed several
previous monthly examination reports for which no one was disciplined. (Tr.
297-313). One such record was for an exam in October 2012 (GX-13). (Tr.
297-298, 301). In the imminent danger and potential hazard section, Arnold
wrote “Pole No. 6” but did not tag out the equipment. (Tr. 298). Steagall
agreed that the pole was broken and that something needed to be done but the
decision to tag out a damaged pole would depend on severity. (Tr. 299,
450-451). Here, in order to tag out this equipment, Arnold would need to kill
the power on the catenary line, which would have shut the train down (though it
was possible to shut down only one side of the rail). (Tr. 299-303, 451). It
took a few days to get a new pole for repairs and during the wait the pole
remained energized to ensure coal haulage. (Tr. 298-299). Arnold was not
disciplined for this action. (Tr. 298). Arnold reviewed another monthly exam
where Beyale filled in the imminent danger section but was not disciplined.
(GX-16). (Tr. 306-307). As union steward, Arnold would have heard if Beyale was
disciplined. (Tr. 308). Another monthly examination with writing in the
imminent danger section for which no one was disciplined (GX-17). (Tr. 309). In
fact, the work order for that condition was put in place on June 29, 2013, but
the repairs did not begin until May 14, 2013. (Tr. 309-313).

Arnold and Steagall also recalled
incidents involving other miners that did not result in discipline. (Tr.
314-322, 430). In 2012 or 2013, Halgryn and Ramirez contacted a moving belt
with a shovel while using a metal detector. (Tr. 314, 316, 420, 554-555,
799-800). Steagall and other electricians were present. (Tr. 316, 421). Ramirez
recalled they were conducting an inspection. (Tr. 555). Steagall stopped
Halgryn and told him that he needed to lock the belt. (Tr. 316, 420-421). Ramirez
also should have locked it. (Tr. 422). The belt was already locked; Steagall
believed Halgryn and Ramirez needed to add their locks. (Tr. 329, 555-556). Ramirez
believed the group lock was sufficient. (Tr. 555-557). Halgryn was upset but
put the locks on, to err on the side of caution. (Tr. 316-317, 557). Later,
Halgryn, Steagall and Arnold went back and Halgryn demonstrated that he had not
contacted the belt and that a lock was unnecessary. (Tr. 317-318). Halgryn also
argued Steagall could not see anything from where he was standing. (Tr. 318). Ramirez
was present for this explanation and agreed with it at hearing. (Tr. 423-424,
555-556). Steagall did not. (Tr. 423). Ramirez and Steagall later learned that
company policy did not require salaried employees to lock out during an
inspection. (Tr. 557-559). That policy was later changed. (Tr. 559). Steagall
did not think they followed the policy. (Tr. 558).

Afterwards, Ramirez told Steagall that
he should conduct an investigation and make the incident go away. (Tr. 424,
558). Steagall believed this meant he was to investigate and make a report. (Tr.
424). He was not sure if Ramirez was asking him not to include everything, but
he was a bit intimidated. (Tr. 425). Stegall would never lie, but he felt that
management wanted the incident investigated and put away. (Tr. 425-426). Steagall
created a report and it included what he saw. (Tr. 420-421, 424-425). Ramirez
did not recall seeing the report. (Tr. 559).

Steagall and Arnold were not aware of
Halgryn or Ramirez receiving discipline for this incident. (Tr. 317, 421-422). Steagall
testified that HR would handle discipline and it would not reach him directly,
but that miners would hear rumors of discipline. (Tr. 421-422, 466). Ramirez
testified that Halgryn coached him after the incident. (Tr. 559). Coaching is
not discipline. (Tr. 577). There was probably no record of the coaching and
Ramirez was not suspended. (Tr. 559-560). He did not know if Halgryn was
disciplined. (Tr. 559-560). Halgryn testified he never coached Ramirez about
the lock out/tag out policy. (Tr. 836).

In another incident, Beyale and Roger
Benny saw Robert Arthur standing on a boom belt. (Tr. 321, 552, 554, 801). Beyale
brought it to Benny’s attention. (Tr. 321, 801). As soon as the condition was
discovered Beyale locked down and shut down. (Tr. 321, 328, 801). Arnold spoke with
Ramirez about the incident as the shop steward, but as far as he knew Ramirez
did not do anything because Beyale did not raise the issue. (Tr. 321-322). Ramirez
recalled an electrician was concerned (he did not believe it was Arnold) but he
did not know anything about the incident. (Tr. 554).
Arnold believed that neither Arthur nor Benny was disciplined. (Tr.
322). Beyale did not know if Benny was disciplined. (Tr. 801). Ramirez
testified that Benny disciplined Arthur for the incident with re-training. (Tr.
552-553). He did not know if there was a record but if there was he would have
seen it as Benny’s supervisor. (Tr. 553). Benny had been disciplined in the
past, but Ramirez did not recall if it was related to lock out/tag out. (Tr.
553-554). Beyale was not disciplined for telling Benny to get Arthur off of the
belt. (Tr. 802).

In another incident, a locomotive
derailed and was not tagged out before the person left the train. (Tr. 430-431,
473). The person who failed to tag it out was a plant supervisor. (Tr. 431). The
supervisor may have been Roland Lee, who was terminated at some point. (Tr.
465-466). Lee may have been terminated before this incident. (Tr. 473). There
were several foremen in the area that could have locked or tagged out the locomotive.
(Tr. 472).

Another incident involved a crusher that
was not locked out during an inspection. (Tr. 431). No one was in the crusher
but the cover was open. (Tr. 431-432).

In another incident, Lynch asked Arnold
to tag out broken reclaimers. (Tr. 271). Arnold replied, “see what happens
because that power plant doesn’t get coal” and then contacted his supervisor,
Steve Flamang. (Tr. 271). The reclaimers continued to run for two or three days
until they could be repaired and no one, including Arnold, was disciplined. (Tr.
272).

Steagall recalled another incident where
there was a line on the ground. (Tr. 446). Engineers, truck drivers, and pit
foreman were present (the engineers closest) but the line was not locked out. (Tr.
446, 448-449). If the line snapped, regardless of electricity, someone could
have been killed. (Tr. 446). Steagall ordered the line locked out. (Tr.
447-449). A crew disassembled the equipment to get weight off the line and the
area was isolated for repair. (Tr. 447-448). Steagall made a report for upper
management. (Tr. 445-446, 466). Steagall did not know who was in charge or to
whom the engineers would report. (Tr. 449). Steagall was not aware of anyone
being disciplined for this event, but he would never see the discipline if they
were. (Tr. 447).

By contrast, Lynch recalled an incident where
a supervisor, Lee, breached the lock out/tag out policy by giving an employee a
key and allowing him to unlock equipment. (Tr. 780). Lynch heard about the
issue, researched it, and terminated Lee. (Tr. 780-781).

Lynch also recalled an incident in which
two electricians removed the safety devices on a draft line cable at a
substation so they could try to find the bad spots. (Tr. 781, 785). This method
was not a proper troubleshooting technique and exposed four people to
electrocution. (Tr. 781). It was not a company shortcut, but it was a practice
of the electrical department. (Tr. 783-784). This was not a violation of the
lock out/tag out policy, it was a violation of other policies. (Tr. 785-786). Lynch
first learned about this practice during this incident and did not know if
other members of management were aware. (Tr. 784-785). Both electricians were
terminated and several members of management were disciplined. (Tr. 781-782,
786-787). Lynch did not know the nature of that discipline or if it was
documented. (Tr. 786-787).

Arnold widely held a reputation as a
safety advocate and perhaps a troublemaker with respect to safety.[21]
(Tr. 429-430, 456, 547, 653, 712, 754). Since this event, other miners’ reps (including
Charley, Beyale, and Yazei) were more hesitant to raise issues. (Tr. 322-323). They
were concerned because Arnold had the most training and experience and the
company disciplined him. (Tr. 323). They only brought up small issues and gave
Arnold large issues. (Tr. 323-324). Beyale was no longer sure if electricians
would be reprimanded for tagging things out. (Tr. 796). However, he still
followed the policy. (Tr. 798-799). The mine has a non-retaliation policy for
miners who bring up a safety issue to management, the union, or MSHA. (Tr.
432-433, 551, 654, 755). Bringing a complaint to a supervisor or union steward
would be covered by that policy. (Tr. 551-552, 654, 755-756).

Until this incident, Arnold had a 30-year
clean record. (Tr. 325). He believed the evaluation was retaliation. (Tr.
325-326). People at the mine knew he had a target on his back. (Tr. 326). The
union only filed a grievance for the written warning, not the suspension or the
changed evaluation, despite the fact that those were issues that could be
grieved (RX-11).[22] (Tr. 359-360, 571, 667).
Hoffman testified that the evaluation had been discussed during the grievance
process. (Tr. 666-667). Arnold wanted the negative performance reviews and discipline
removed from his personnel files and an apology. (Tr. 324-325).

CONTENTIONS OF THE PARTIES

Following the
hearing, the Complainant and Respondent submitted briefs and subsequent reply
briefs in support of their respective positions. Complainant argued that
Respondent had retaliated against Arnold for engaging in activity protected by
the Mine Act. (Complainant’s Post-Hearing Brief at 22-41). Specifically,
Complainant alleged that Arnold’s actions in raising the issue of the coal lab
fan motor and, eventually, complaining about that motor constituted protected
activity under the Act. (Id. at 23). Complainant also asserted that
Respondent’s actions in suspending Arnold, issuing him a warning, and changing
his safety evaluation, constituted adverse employment actions. (Id. at
25-33). Complainant further argued that the adverse employment actions were
motivated, in part, by Arnold’s protected activity. (Id. at 24-28,
35-41). Finally, Complainant argued that Respondent failed to rebut the prima
facie case showing retaliation. (Id. at 28-41). As a result of these
arguments, Complainant requested a civil penalty of $20,000.00, revocation of
the written warning, and a re-evaluation of the June 2013 performance
evaluation without animus or reference to SLARS. (Id. at 41).

Respondent
argued that Arnold’s discipline was the result of his failure to follow MSHA
regulations and company policy. (Respondent’s Post-Hearing Brief at
8-9). It further alleged that, even in the absence of protected activity,
Arnold would have received the same discipline. (Id. at 10). According
to Respondent, all of Arnold’s disciplines were related to his inaction with
respect to the coal lab fan motor and not related to any of his protected
activity. (Id. at 10, FN 6). In fact, Respondent alleged that Arnold had
no good-faith belief that a safety condition actually existed and, therefore,
his actions were not really protected activity. (Id. at 17-19). Finally,
it argued that the discipline issued to Arnold was minor and was in no way a material
adverse action. (Id. at 10, note 6). As a result of these arguments,
Respondent requested that the civil penalty be eliminated or greatly reduced
and for a finding that Respondent did not retaliate against Arnold. (Respondent’s
Reply Brief at 9).

HOLDING

For the reasons set forth
below, I find that the Complainant satisfied his requirement to prove a prima
facie case of discrimination in this matter. Further, Respondent failed to
rebut that prima facie case or to establish an affirmative defense. As a
result, I find Respondent discriminated against Arnold under the Mine Act.

ANALYSIS

This case is before me on
allegations that Respondent retaliated against Arnold for engaging in protected
activity in violation of §105(c). That provision states:

No person shall discharge or in any
manner discriminate against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator’s agent, or
the representative of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical
evaluations and potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners or applicant for
employment has instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners
or applicant for employment on behalf of himself or others of any statutory
right afforded by this Act.

30 U.S.C. §815(c)(1).

The
purpose of this section is to encourage miners “to play an active part in the
enforcement of the [Mine Act]” recognizing that “if miners are to be encouraged
to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their
participation.” S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 35 (1978). The section was intended “to
be construed expansively to assure that miners will not be inhibited in any way
in exercising any rights afforded by the legislation …” Id. at 36.

I.                  
Claimant Established a Prima Facie Case of Discrimination

In
order to establish a prima facie case of discrimination under section
105(c) of the Act, a complaining miner must establish (1) that he engaged in
protected activity and (2) that the adverse action complained of was motivated
in any part by that activity. Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-818 (April 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 way motivated by protected activity. See Robinette, 3
FMSHRC at 818 n.20. The complainant bears the burden of persuasion. Glover
v. Consolidation Coal Co., 19 FMSHRC 1529, 1535-1536 (Sep. 1997).

a.     
Claimant Engaged in Activity Protected by the Mine Act

The
first inquiry is whether, in this particular matter, Arnold engaged in
protected activity. Section 105(c) defines “protected activity” broadly to
include the “fil[ing] or ma[king] [of] a complaint under or related to [the]
Act, including a complaint notifying the operator ... of an alleged danger or
safety or health violation” Sec'y of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) rev'd on other grounds, 709
F.2d 86 (D.C. Cir. 1983); see also U.S. Steel Mining Co., 23
FMSHRC 981, 986 (Sep. 2001). Section 105(c) also explicitly protects notifying the “representative
of the miners” of complaints. 30 U.S.C. 815(c)(1). Finally, protected activity
includes instituting or causing to be instituted a proceeding under or related
to the Act. Id.

The record
clearly establishes that Arnold engaged in several forms of protected activity.
Specifically, Arnold raised a possible safety issue with the coal lab fan motor
to his supervisors on January 22, February 14, and February 19. (Tr. 244-246,
249, 389-390,396, 405, 508, 690-691, 794). He raised this issue with three
members of management: his immediate supervisor (Steagall), Respondent’s only
electrical engineer (Berget), and a former MSHA inspector and safety expert
(Martin). (Tr. 244-247, 389-393, 399, 477, 684, 718). Arnold then contacted a
representative of miners, specifically the local union president, and convinced
him to call in a complaint under Section 103(g) of the Act. (Tr. 253, 803). This
action caused an inspection at the mine and led to a citation. During the
Section 103(g) inspection, Arnold acted as the miner’s representative and also
provided Inspector Williams with photographs. (Tr. 257, 260, 414, 491, 823). Finally,
after he was suspended, Arnold filed a 105(c) action with MSHA. (Tr. 268-269). Arnold’s
actions, individually and cumulatively, are protected under the Mine Act.

In its
post-hearing submissions, Respondent attempted to rebut this evidence by
arguing these actions were not protected. Respondent’s witnesses conceded
complaining to a supervisor or the union president would be protected by the
company’s anti-retaliation policy and by the Mine Act. (Tr. 432-433, 551-552,
654, 755-756). However, Respondent argued that a miner that seeks to avail himself
of these protections must have a “good-faith basis” for believing a safety
hazard exists and for making those complaints. (Respondent’s Post-Hearing
Brief at 18). In short, Respondent argues that the Act only protects bona
fide safety complaints-- not bad-faith attempts to cause trouble. Respondent
asserts that Arnold’s actions were the latter rather than the former. (Id.).

To support this
assertion, Respondent noted that Arnold, as a certified electrician, called
MSHA to make a complaint but had failed to address the motor issue as mandated
by MSHA regulations and the company’s written policy. (Respondent’s
Post-Hearing Brief at 18). Further, it drew attention to Arnold’s testimony
that the NEC was “irrelevant” and his later concession that the code actually
addressed pertinent issues. (Id.). It also noted that Arnold testified
that that he was not supposed to lock out/tag out equipment because of
production issues, but, on the other hand, had also stated that he had locked
or tagged out equipment in this same area in the past. (Id. at 18-19). Finally,
Respondent raised the fact that, despite Arnold’s claims that Respondent’s
actions had dissuaded him from making safety complaints, he continued to raise
safety issues at the mine. (Id. at 19). Respondent alleges that these
facts show Arnold’s complaints were made in bad faith and therefore, did not
constitute protected activity. (Id.).

Having heard the
testimony at hearing, evaluated the credibility of the witnesses, and having
carefully evaluated the evidence, I find that Arnold’s expressed safety
concerns had been made in good-faith. Regardless of whether there were actual
hazards associated with the fan motor, Arnold’s expressed concerns about the
possible existence of such hazards, given the totality of the circumstances
discussed herein, were reasonable and made in good faith. Arnold credibly
testified that he happened upon a fan motor that he did not know existed and
had never been told about. (Tr. 243-244, 390). He had questions about the
installation. He was not certain it was hazardous. He contacted his supervisor,
the electrical engineer, and a safety expert searching for answers. (Tr. 244,
389-390, 434). There is no reason to doubt Arnold was reasonably uncertain about
whether there was a hazard-- especially in light of the fact that MSHA
eventually issued a citation for a hazard at the fan-- albeit possibly a
different hazard than the one Arnold feared.

I also credit
Arnold’s testimony that he had been told not to lock or tag out the condition pending
research regarding his concerns. (Tr. 244, 247, 274-283, 300, 350-358). Rather
than supporting Respondent’s argument, the fact that Arnold had locked or
tagged out equipment in the area before corroborates his testimony that he was
told not to act here. Arnold was not shy about tagging out conditions he
believed to be hazardous, but here no one was positive if there was a hazard
and Arnold was told to hold off. Steagall further corroborated this testimony,
explaining that he had told Arnold to hold off on acting until they had
answers.[23] (Tr. 244,
282, 385, 403-404). There is no reason to believe Arnold acted in bad-faith in
failing to lock out or tag out the equipment.

Similarly, I
credit the testimony of Arnold and Steagall that they believed the issues
Martin raised with respect to the NEC were not relevant in the context of
their discussion. (Tr. 250-251, 371-372, 405-406).   Whether the NEC
actually brought anything to bear on this situation is beyond the scope of this
matter, suffice it to say that Arnold had acted in good-faith.

Finally, whether
or not Arnold was dissuaded from making safety complaints in the future is not
relevant to his good-faith in making the initial complaints. To argue that
Arnold’s completely unforeseeable future discipline and his reaction thereto
could somehow shed light on his good-faith at the time this issue arose is
extremely questionable.

In a related
argument, Respondent asserted that while it stipulated that Arnold’s 105(c)
complaint was a protected activity, it was not aware of the complaint until
after Arnold’s written warning was already drafted. (Id. at 21). While
it is true that Respondent was not aware that Arnold filed the claim at that
time, it was certainly aware at the time Arnold’s evaluation was completed
several months later. Further, the filing of the 105(c) complaint was just one
of many instances of protected activity, as listed supra. There is no
question Respondent was aware of the other protected activity.

b.     
Claimant Suffered An Adverse Employment Action Motivated In Part
By That Protected Activity

Having
determined that Arnold engaged in protected activity, the next inquiry is
whether the adverse action complained of was motivated in any part by that
activity. In practice, this second half of the Pasula and Robinette
framework really consists of two inquiries: (1) whether there was an adverse
employment action and (2) whether there was a nexus between the miner’s
protected activity and that adverse employment action. See Kenneth L.
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 329 (Apr. 1998); United
Mine Workers of America (UMWA), on behalf of Mark A Franks and Ronald M. Hoy v.
Emerald Coal Resources, LP, 36 FMSHRC 2088, 2096 (Aug. 2014) (Cohen and
Young) (Decisions where Commission first held that miner engaged in protected
activity, then determined that the complained of action, a termination, was an
adverse employment action, before addressing the nexus). Therefore, the
Complainant must first establish that an adverse employment action occurred
before the issue of a nexus is reached.

i.       
Claimant Suffered An Adverse Employment Action[24]

The legislative history of
the Mine Act showed that the forms of discrimination should be considered
broadly, stating:

It is the Committee's intention to
protect miners against not only the common forms of discrimination, such as
discharge, suspension, demotion, reduction in benefits, vacation, bonuses and
rates of pay, or changes in pay and hours of work, but also against the more
subtle forms of interference, such as promises of benefit or threats of
reprisal.

Legislative History at 36. In
keeping with the Congressional intent, the term “adverse action” has been
broadly defined as “an act of commission or omission by the operator subjecting
the affected miner to discipline or a detriment in his employment
relationship.” Pendley v. Fed. Mine Safety & Health Rev. Commn., 601
F.3d 417, 428 (6th Cir. 2010). The Commission has recognized that adverse
action may be “subtle or indirect” but nonetheless must be more than an action
“which an employee does not like.” Jenkins v. Hecla-Day Mines Corp., 6
FMSHRC 1842, 1848 FN 2 (Aug. 1984) (quoting Fucik v. United States, 655 F.2d
1089, 1096 (Ct. Cl. 1981). To differentiate between legitimate adverse actions
and an actions which an employee simply does not like, the Commission adheres
to Supreme Court’s test in Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006).   Pendley v. Highland Mining Company,
34 FMSHRC 1919 (Aug. 2012).   Under that standard, adverse actions are those
that are “materially adverse to a reasonable employee,” meaning “that the
employer's actions must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Id.

In this matter, the record
clearly establishes that Arnold suffered three discrete adverse employment
actions. Arnold was suspended indefinitely without pay (though that suspension
ultimately lasted for a week after which time he was reimbursed). (Tr. 264-267,
514-517, 633-634, 649, 675-676). He received a written warning which was placed
in his personnel file-- the first such warning in his nearly 30 years with
Respondent. (Tr. 278, 283, 325). Finally, Arnold had an evaluation downgraded
to “needs improvement” with respect to safety, despite a previously spotless
record. (Tr. 292-295, 363, 845-846). Each of these actions, individually,
constitutes an adverse employment action. Moreover, an employer’s actions are
to be evaluated cumulatively. See Burlington Northern at 68 and 73; see
also Moore v. Cricket Communications, 764 F. Supp 2d 853, 862 (S.D. Tex.
2011). When considered together, there is no question these actions form an
adverse employment action. A reasonable miner, considering the way in which
Arnold was held out of work, disciplined, and then unfavorably reevaluated,
could easily be dissuaded from making a complaint.

In
its post-hearing submissions, Respondent argued that the actions taken with
respect to Arnold were not “materially adverse.” (Respondent’s Post-Hearing
Brief at 23). For the suspension, Respondent argues that Arnold was only
held out for four days, ultimately received his full pay, and was not harmed in
his employment. (Id.). It asserted that the holding out of service
during an investigation was not an adverse employment action, but instead a necessary
action to ensure that other miners understood that safety regulations and
company policy were important. (Id. citing Gerald v. Locksley,
785 F. Supp. 2d 1074, 1117 (D. N.M. 2011)). It further asserted that his
suspension lasted only long enough to determine the appropriate course going
forward. (Id.). Finally, it argued that a short suspension was
appropriate given Arnold’s action in failing to lock out/tag out the motor and
that other miners had been terminated for similar actions. (Id.). Respondent
asserted that, given Arnold’s improper actions, the actual punishment that it
meted out would not dissuade others from making safety complaints. (Id.
at 23-24 citing Dehart v. Baker Hughes Oilfield Operations, 214 Fed.
Appx. 437 (5th Cir. 2007).

The record does not support
Respondent’s characterization of the suspension. Arnold was held out of service
for seven days-- between February 22 and March 1. (Tr. 334-335). While Arnold
was only scheduled to work four days in that time period, that did not shorten
his time of actual suspension by three days. (Tr. 334-335). Respondent’s human
resources specialist, Hoffman, agreed that he had never heard of a suspension
longer than four days and that a week would be a long time to be held out of
service. (Tr. 677). It hardly sounds like the time taken by Respondent was just
long enough to conduct the investigation --especially given that Arnold and
Steagall were both available February 22 for interview on that day and Ramirez had
already assessed all of the documents he would later rely on at the consensus
triangle. Further, while the suspension eventually lasted seven days, Arnold
had no way of knowing until he was actually called in to return to service how
long the suspension would last. He had been told it was indefinite. Similarly,
Arnold had no way of knowing if he would be paid for the week.[25]
Arnold credibly testified as to the financial, familial, and psychological
pressures that he felt during his suspension. (Tr. 267-268). A reasonable
miner, knowing about the nature of Arnold’s suspension, may have been dissuaded
from making a safety complaint.[26]

Respondent’s argument that a
suspension to conduct an investigation was not an adverse employment action
reaches outside of Mine Act jurisprudence and draws unsupportable analogies. The
case Respondent cited, Gerald v. Locksley, deals inter alia with
an assistant football coach’s claim of racial discrimination under Title VII of
the Civil Rights Act. 785 F.Supp.2d at 1085. In that case, the Court noted “[o]nly
acts that constitute a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits will
rise to the level of an adverse employment action.” Id. at 1117 citing
Robinson v. Cavalry Portfolio Serv., LLC, 365 Fed.Appx. 104, 114 (10th Cir.
2010)(internal quotations omitted). These are clearly the “common forms of
discrimination” to which Congress chose not to limit the Mine Act. Legislative
History at 36. Put simply, an action that would not be an adverse
employment action under Title VII (as articulated by the Federal District Court
of New Mexico) may be an adverse employment action under the Mine Act. The Mine
Act is broader and more protective of miners. Simply because the discipline
here was more subtle than a discharge or change in long-term benefits does not
mean that it was not an adverse employment action under the Mine Act. The
question, under the Mine Act, is whether in light of the disciplines given to
Arnold a reasonable miner would be dissuaded from making a safety complaint. As
noted supra, this court finds such to be the case instantly

Respondent’s assertion that
the miner’s suspension was justified punishment for his failure to lock out/tag
out is not pertinent to the issue of whether said suspension was an adverse
employment action. The appropriateness of Arnold’s punishment will be addressed,
infra, in the discussion regarding the affirmative defenses.

Respondent also asserted
that Arnold did not experience an adverse employment action with respect to the
written warning. (Respondent’s Post-Hearing Brief at 24). It argued that
warning an employee of safety obligations is not enough, without more, to dissuade
someone from making complaints. (Id. citing Foreman v. Western
Freightways, LLC, 958 F. Supp. 2d 1270, 1284-1285 (D. Colo. 2013); see
also Respondent’s Post-Hearing Brief at 25, note 8). It argued that it
could have terminated Arnold for his failure to lock out/tag out the motor and
that adverse employment action cannot occur when the punishment could have been
more severe. (Id. citing National Cement Co. v. FMSHRC, 27 F.3d
526, 534 (11th Cir. 1994)). The mine operator again contended that the
punishment was justified and that a warning for being insubordinate and/or for being
argumentative could not dissuade a reasonable worker from making safety
complaints, especially when justified. (Id. citing
Dehart).

The warning
provided to Arnold here was more than simply a reminder to Arnold of his safety
obligations. In the case Respondent cited, Foreman v. Western Freightways,
LLC, a worker making a discrimination claim under Title VII of the Civil Rights
Act failed to establish an adverse action because he had already received
similar warnings before his protected activity occurred and his warnings
brought him no closer to terminations. 958 F. Supp. 2d at 1284-1285. That
scenario was clearly inapposite to the situation here. Arnold had an immaculate
record at Respondent and had never received a written or verbal warning with
respect to safety before. (Tr. 278, 283, 325, 537). Further, because a written
warning was part of Respondent’s unwritten progressive discipline system,
receipt of the warning placed him closer to termination. Beyond these
substantial differences, it is unnecessary to reach into Title VII litigation
when several Commission ALJs have determined that in the context of the Mine
Act a written warning can constitute an adverse employment action. See
Howard v. Cumberland River Coal Company, 2010 WL 3616453, *5-6 (August 13,
2010)(ALJ Hodgdon)(“The letter could have had a potential chilling effect on
further documentation of hazardous conditions by…other miners aware of the
disciplinary action”); see also Palmer v. Asarco Inc., 28 FMSHRC 669,
678-679 (Aug. 2006)(ALJ Manning) and United Steelworkers of America on
Behalf of Bird v. General Chemical Company, 15 FMSHRC 2475, 2489-2490 (Dec.
1993)(ALJ Lasher). A reasonable employee, seeing a miner with Arnold’s spotless
record receive progressive discipline, could be dissuaded from raising safety
issues.

Similarly, Respondent’s argument
that the warning could not be an adverse action because a more severe
punishment was possible does not comport with the law or logic. This is clear
from a closer reading of the case cited by Respondent, National Cement Co.
v. FMSHRC. In that case, the complainant’s claimed adverse action was an
offered reassignment to a different position. 27 F.3d at 534. That new position
was actually at a higher pay grade (though the miner would make less money
without overtime). Id. The court determined that a change of position to
a higher pay grade could not be an adverse action. Id. That is not the
situation here. Arnold does not claim that a change in position to a higher pay
grade occurred. He claims that he was disciplined with a written warning. In no
way could a written warning be seen as a lateral move or an improvement in
Arnold’s position. Further, if Respondent’s argument were to prevail, then
management could simply provide “termination” as the penalty for breaking any
rule and claim that any action that fell short of termination could not be an
adverse action. The question presented here is whether a written warning would
dissuade a miner from making safety complaints – not whether a promotion to a
higher pay grade would have such a chilling effect.

Finally, Respondent claims
that Arnold did not experience an adverse employment action with respect to the
employee evaluation. (Respondent’s Post-Hearing Brief at 25). Specifically,
Respondent claimed that all the changes were minor because his overall grade was
unchanged and it did not affect the terms and conditions of employment. (Id.
at 25-26 citing Daniels v. United Parcel Services, 701 F.3d 620, 638
(10th Cir. 2012)).

I see no reason to consider
the negative aspects of Arnold’s evaluation to be “minor” simply because the
overall grade was unchanged. Respondent’s witnesses took great pains to explain
that safety was of the utmost importance to the operator. As such, a “needs
improvement” rating on the “safety” category of the evaluation must be extremely
important.

Further, the evidence suggests that the
change in evaluation was more significant than Respondent and its witnesses
implied. Arnold credibly testified that, while evaluations were not supposed to
be kept, they were used to show a trend or history during discipline. (Tr. 325). Further,
Dixon credibly testified that evaluations could be used to disqualify employees
for different positions. (Tr. 811-812). As the local union president, Dixon
would be in the position to know how Respondent used miners’ evaluations. Further,
despite Ramirez’s testimony that evaluations were not used, Ramirez conceded
that he left the evaluations in the HR files. (Tr. 570-571, 587). It stretches
credibility to claim that the evaluations were ephemeral and inconsequential
and, for practical purposes ignored, but then concede that these evaluations
were also kept in two separate locations and sometimes saved indefinitely. While
I credit Hoffman’s testimony that the CBA dictated pay for Arnold and that the
evaluations did not directly affect the CBA, I also find that evaluations were
indirectly used in decisions related to promotion and other job conditions. (Tr.
669-670). Even if the company truly did not use the evaluations to dictate
terms and conditions, I find that it would be reasonable for a miner to believe
a grading of their job performance by supervisors would be important and could
be dissuaded from raising conditions as a result.

Therefore, notwithstanding Respondent’s
assertion that it only reviewed performance appraisals 12-18 months
retroactively and that the appraisals in any case fell outside the CBA, I find
that the negative appraisal modifications were material and adverse in nature. Also,
the disclosure that the performance appraisals were kept “permanently” only
further persuaded this court of the untoward consequences for miners facing additional
disciplinary action. Indeed, if there is one thing that many years of legal and
judicial experience has taught this court, it is this: the collection and
retention of negative data regarding individuals never has benign consequences.

Finally, Respondent argued
that the various claimed adverse actions taken as a whole could not have
dissuaded a reasonable miner from making safety complaints. (Respondent’s
Post-Hearing Brief at 26-27). To that end, Respondent noted that despite
Arnold’s claim that he would be dissuaded from making further safety
complaints, he had continued to do so even up to the time of the hearing. (Id.
at 26 citing Somoza v. University of Denver, 513 F.3d 1206, 1214 (10th
Cir. 2008). It also noted that no other miners had ceased to act as miner’s
representatives. (Id.). It claimed that Arnold’s testimony was
self-serving, contrary to other evidence, and should be disregarded. (Id.
citing Cox v. Pammlid Coal Company, 9 FMSHRC 435. 522 (ALJ Koutras).

The fact that Arnold was a particularly
persistent (albeit abrasive) safety advocate and refused to be cowed is beside
the point. As the Supreme Court noted in Burlington Northern, “We
refer to reactions of a reasonable employee because we believe that the
provision's standard for judging harm must be objective. An objective standard
is judicially administrable. It avoids the uncertainties and unfair
discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings.” 548 U.S. 53 at 68-69. The issue is not
whether Arnold was dissuaded but if a reasonable miner would be dissuaded. (
Unfortunately, American Mining History is replete with examples of mining
disasters involving “reasonable” miners who had failed to speak out about
blatant safety hazards because fear of operator retribution. ) I credit the testimony
of Arnold and Beyale that, though no BHP miners had quit as representatives,
they were nonetheless concerned about how they would be treated for raising safety
issues. (Tr. 323-324, 796).   This court is convinced that each of the above
adverse actions, considered singly, would be sufficient on its own to dissuade
a reasonable miner form making safety complaints. The cumulative effect of the
serial adverse actions was undoubtedly more than adequate to do so.

In short, the suspension,
the written warning, and safety evaluation were individually and cumulatively
adverse employment actions that would reasonably deter a miner from engaging in
protected activities.

ii.      A Nexus Existed Between The
Protected Activity And The Adverse Action

Having
determined that there was protected activity and an adverse employment action,
the next inquiry is whether there was a nexus between the two. To establish
that nexus, the Commission has identified these indicia of discriminatory
intent: (1) hostility or animus toward the protected activity; (2) knowledge of
the protected activity; and (3) coincidence in time between the protected
activity and the adverse action. Sec’y of Labor on behalf of Lige Williamson
v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has
acknowledged that it is often difficult to establish a “motivational nexus
between protected activity and the adverse action that is the subject of the
complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21
FMSHRC 953, 957 (Sept.1999). The Commission has further considered the
disparate treatment of the miner in analyzing the nexus requirement. See
Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir.
1983). I will consider each indicia in turn.

1.     
Respondent Had Knowledge of the Protected Activity

There is no
question that Respondent had knowledge of the protected activity. As Judge
Bulluck recently observed, knowledge of protected activity “is probably the
single most important aspect of a circumstantial case.” Lopez v. Sherwin
Alumina, LLC, 36 FMSHRC 730, 736 (March 2014). Well-settled Commission case
law establishes that when an agent of an operator has knowledge or should have
knowledge of a safety hazard, such knowledge should be imputed to the operator.
See Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000); Pocahontas
Fuel Co., 8 IBMA 136, 147 (Sept. 1977) aff'd 590 F.2d 95 (4th Cir. 1979)
(Coal Act case) (adopting the common law principle that acts or knowledge of an
agent are attributable to a principal). An agent is defined as someone with
responsibilities normally delegated to management personnel, has
responsibilities that are crucial to the mine’s operations, and exercises
managerial responsibilities at the time of the negligent conduct. Martin
Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30
U.S.C. §802(e) (an agent is “any person charged with responsibility for the
operation of all or part of a…mine or the supervision of the miners in
a…mine.”). In this case, the evidence of knowledge is overwhelming. Steagall,
a member of management, was aware of Arnold’s safety complaints as early as
January 22, 2013.[27] (Tr. 244,
389-390). As a result, Respondent had knowledge of Arnold’s protected activity
on that date.

However, that
was not the extent of Respondent’s knowledge. Berget, also a member of
management, learned about Arnold’s safety complaints on January 22, 2014, the
same day as Steagall. (Tr. 244, 245, 392-393, 477). Martin, again a member of
management, learned about those complaints on February 14, 2014. (Tr. 247, 399,
684, 718). On February 19, Martin learned that Arnold was going to file a
103(g) complaint if nothing was done regarding the motor. (Tr. 250-251, 692). Later
that day, after Dixon had filed the 103(g) complaint, Martin told Williams that
he knew Arnold had been the person to call. (Tr. 694-696, 816-817). In
response, Martin wrote an e-mail that evening which explained Arnold’s
complaints and the 103(g) inspection. (Tr. 487-490, 592, 703). Lynch and Ramirez,
both members of management, received this e-mail. (487-490, 592, 737, 742,
769). Lynch testified he believed from this e-mail that Arnold had caused the
103(g) complaint to be filed. (Tr. 739, 742-743).   Halgryn
and Hoffman, both members of management, learned about Arnold’s safety
complaints and the 103(g) inspection from Ramirez. (Tr. 627-629, 832-832). Berget
heard about the 103(g) complaint from someone in the electrical department. (Tr.
481-482). Finally, everyone at the company became aware of the 105(c) complaint
(after the suspension and written warning but before his lowered evaluation). Around
half a dozen members of management were aware of Arnold’s various forms of
protected activity at the time Arnold suffered adverse employment actions.

2.     
Respondent Displayed Hostility Towards Claimant’s Protected
Activity

The record
contains several instances in which members of mine management displayed
hostility towards Arnold’s protected activity. When Martin accompanied Williams
on the 103(g) complaint inspection, he repeatedly stated that he knew Arnold
had called in the complaint and expressed anger. (Tr. 694-696, 816-817). In
fact, Williams had to tell Martin to stop discussing the issue. (Tr. 256, 817).
During the inspection the next day, Lynch provoked a confrontation with Arnold
and angrily questioned his credentials while discussing the motor at issue. (Tr.
260-261, 497-498, 706-707, 749-751, 824-825). Arnold and Williams testified
that the MSHA inspectors had to step between Lynch and Arnold to prevent the
confrontation from spiraling out of control. (Tr. 261). Even Lynch conceded
that he had to take two steps back to cool down. (Tr. 750-751). During the
suspension and when Arnold received his written warning and performance
evaluation, Ramirez told Arnold to “follow the chain of command” before calling
MSHA. (Tr. 265-266, 294-296, 338-339, 362-363, 509-510, 545, 621-622). Similarly,
Hoffman had complained to Dixon about Arnold calling in 103(g) complaints. (Tr.
675-676, 807-809). Martin expressed deep, almost personal hostility toward
Arnold and characterized his actions as vindictive and confrontational. (Tr.
712). He even claimed that Arnold would stage unsafe conditions to provide a
pretext to call in 103(g) complaints.   (Tr. 712-713). Whatever motive he
believed existed for Arnold’s alleged actions was left unstated. Such
negative characterization of a miner can be indicative of hostility toward
protected activity. Turner v. National Cement, 33 FMSHRC 1059, 1069-1070
(May 2011). In sum, several different members of management expressed opinions
or behaved in a manner which indicated hostility toward Arnold’s protective
activity in this matter.

Respondent
argued that it displayed no hostility toward protected activity. (Respondent’s
Post-Hearing Brief at 19-22). It noted that all of its witnesses testified
that the punishment was based on Arnold’s failure to lock out or tag out the
equipment in violation of company policy and MSHA regulations. (Id. at
19-20). It argued that if there had been hostility, Arnold would have received
punishment for the telephone or photograph violation, but that there was no
piling on here. (Id.). Similarly, it argued that if it were hostile,
Arnold would have been discharged. (Id. at 19-21). It also noted that it
could not have hostility towards Arnold for the 105(c) because it was not aware
of it until Arnold had returned to work. (Id. at 21 citing Cyprus
Bagdad Copper Co., 12 FMSHRC 1239, 1259 (Jun. 1990)(ALJ Cetti). Finally,
Respondent argued that Arnold’s evaluation was only changed after he requested
the review and it was changed, along with all the other electrician
evaluations, to ensure conformity. (Id at 21). During the review, it was
determined that Arnold’s review did not accurately reflect the conditions for
which he was punished so it was changed and an explanation added. (Id.
at 21-22). Respondent argued that if hostility actually motivated the change,
Arnold’s entire rating rather than only his safety rating would have been
changed. (Id. at 22).

None of
Respondent’s arguments are compelling and some show a lack of understanding as to
the nature of discrimination under the Mine Act. The legitimacy of Respondent’s
claim that Arnold’s punishment was for failure to lock out or tag out the motor
will be discussed more fully with respect to Respondent’s affirmative defenses,
infra. Regardless, as Arnold experienced each of his punishments in this
matter (the suspension, the written warning, and the changed evaluation) Arnold
was told that his failure to follow “the chain of command” contributed to the
discipline. (Tr. 265-266, 294-296, 338-339, 362-363, 509-510, 545, 621-622).
This point is essentially undisputed and several of Respondent’s witnesses
openly testified that they were upset or concerned that Arnold went outside of
the chain of command to contact MSHA. (Tr. 494-495, 509-510, 545, 610, 651-652).
In fact, concern over Arnold’s failure to follow the chain of command was
written into Arnold’s evaluation. (Tr. 294-296, 362-363, 621-622). Williams
testified that the Respondent asked MSHA to explain that miners should follow
the chain of command. (Tr. 826-827). Similarly, it is undisputed that
Respondent was upset that Arnold gave photographs to MSHA personnel and, in
fact, this was cited as being one of the reasons for his suspension, though not
for the written warning or evaluation. (Tr. 356, 526-528).

Respondent and
its witnesses seem oblivious to the fact that their open admission to antipathy
toward going outside of the “chain of command” to MSHA was an explicit, open
admission to hostility toward protected activity. If anything constitutes
protected activity under the Mine Act, then filing (or causing the filing) of a
safety complaint with MSHA must be such. In fact, filing a complaint is one of
the few forms of protected activity unambiguously referred to in the relevant
provision of the Mine Act. 30 U.S.C. §815(c)(1)(prohibiting discrimination
against a miner “because such miner…has filed or made a complaint under or
related to this Act.”). I find that Respondent’s witnesses essentially conceded
that they were hostile to this most fundamental form of protected activity. While
Respondent is certainly free to ask miners to bring their safety concerns to
the company, it cannot punish miners for speaking to MSHA at any time. Euphemistic
language about “chain of command” does not change the fact that in this matter,
Arnold was disciplined, in part, because he complained to MSHA.

Further, even
if there was some basis for requiring Arnold to “follow the chain of command”
before contacting MSHA, he did so. As noted supra, Arnold told Steagall
and Berget about the condition on January 22 and later told Martin about the
condition on February 14. While he may not have gone to “higher levels of
management” as Respondent urges in its brief, he still made Respondent aware of
the condition. And, as noted supra, the Mine Act does not recognize
“upper management.” Apparently, under Respondent’s policy, Arnold was required
to bring safety issues to every single member of management until one of them
took action. If none of those members of management took any action, then
Arnold was still responsible for any safety hazards he observed. This is, of
course, absurd and shows that Respondent’s insistence on “chain of command” is,
in reality, a post-hoc justification for hostility to miners contacting MSHA.

Respondent’s arguments
that imply that there was no hostility because they could have behaved more
egregiously are likewise disregarded. Specifically, Respondent argues that it
showed no hostility because it did not “pile on” with additional written
warnings for taking photographs or using the camera. Similarly, BHP argues if
it was hostile it would have discharged Arnold. Finally, it claims that
Arnold’s performance evaluation was only changed with respect to safety issues,
and did not impact on the overall score. Simply because a Respondent could have
been more hostile to protected activity does not mean that it was not hostile
at all. To claim that only the most egregious levels of hostility can meet the
requirements of the CAM Mining, LLC, framework has no basis in
law and is absurd on its face.

Respondent also
argued that the change in Arnold’s performance appraisal should not be
considered evidence of hostility in that Steagall’s initial evaluation was not
discriminatory and that Arnold himself initiated the process of reevaluation. These
arguments are beside the point. The critical issue is whether the ultimate
changes in Arnold’s performance evaluation were grounded in Respondent’s
hostility toward the miner for having made safety complaints. As noted infra,
failure to follow the chain of command would be a critique from which a
hostile, discriminatory animus could be inferred.

Respondent’s argument
that it could not have had animus toward the 105(c) complaint because it was
not aware that the complaint had been made has some support in the record.
However, this argument only has merit with respect to the suspension and the
written warning. By the time Arnold’s performance evaluation occurred, the
Respondent was clearly aware of the 105(c) complaint.

In short, I find
various members of Respondent’s management team showed hostility toward
Arnold’s protected activity and none of Respondent’s arguments to the contrary
are compelling.

3.     
There Was A Coincidence In Time Between The Protected Activity
And The Adverse Action

The
third circumstantial indicia of animus, coincidence in time between the
protected activity and the adverse action, is also clearly present. The Commission
has found delays lasting several weeks to several months to be sufficient to
show animus. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1090 (three
weeks); Sec'y of Labor on behalf of Hyles v. All American Asphalt, 21
*1932 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miners' contact
with MSHA and the operator's failure to recall miners from a lay-off; however,
only one month separated MSHA's issuance of a penalty resulting from the
miners' notification of a violation and that recall failure). The Commission
has explained that it applies “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.” All American
Asphalt, 21 FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13
FMSHRC 523, 531 (Apr. 1991).

In this matter,
Arnold was suspended a mere three days after Dixon filed the 103(g) complaint
and two after Respondent received a citation.   As chronicled supra, Arnold
made a whole series of complaints leading up to this event. The written warning
occurred a week later. Finally, Arnold’s evaluation occurred a few months after
his suspension and covered the time period during which the suspension and
written warning occurred. The time delay is clearly within the limitations set
by the Commission.

4.     
Claimant
Experienced Disparate Treatment

While the
traditional animus framework outlined in Sec’y of
Labor on behalf of Lige Williamson v. CAM Mining, contains only three kinds of discriminatory indicia
(those discussed above) the Commission has often also considered disparate
treatment. Chacon v. Phelps Dodge Corp., supra. “Typical
forms of disparate treatment are encountered where employees guilty of the
same, or more serious, offenses than the alleged discriminatee escape the
disciplinary fate which befalls the latter.” Id. at 2512. However, the
existence of disparate treatment is not necessary to prove a prima facie
claim of discrimination when the other indicia of discriminatory intent are
present.   Id. at 2510-2513. I conclude that, because there was clearly
knowledge, hostility, and coincidence in time in this matter that Claimant need
not prove disparate treatment here. However, I will still address the issue.

In
this matter, Arnold’s treatment was clearly far different, and harsher, than
the way in which Berget, Martin, and even Steagall were treated.[28]
Arnold was ostensibly punished for failing to follow the lock out/tag out
procedure. (Respondent’s Post-Hearing Brief at 11-16). He was also told
at all relevant times during his punishment that he should have followed the
chain of command to bring issues to other members of management. (Tr. 265-266, 294-296, 338-339, 362-363, 509-510, 545, 621-622).
Berget, Martin, and Steagall all learned from Arnold that there was a possible
problem with the coal lab fan motor. (Tr. 244-247,
389-393, 399, 477, 684, 718). Steagall and Arnold attempted to move this
concern up the chain of command to Berget and Martin. (Tr. 244-247, 392-393,
399, 477, 684, 718). Berget and Martin never raised this issue with anyone
higher until after the 103(g) complaint was already filed. Berget, Steagall,
and Martin also failed to lock out or tag out the coal lab motor fan. Arnold
was indefinitely suspended (initially without pay), received a written warning,
and a lowered performance evaluation. (Tr. 264-266, 514-517, 633-634. 649, 676).
Steagall was suspended with pay. (Tr. 434, 440-442, 596-597, 682). Neither
Berget nor Martin suffered any adverse employment action for doing exactly what
Arnold had done. This is a textbook example of disparate treatment. Arnold was
treated more harshly for engaging in the exact same behavior as his superiors.

Respondent
argues that Berget and Martin were in fundamentally different positions than
Arnold and, as a result, cannot be used to show disparate treatment. (Respondent’s
Reply Brief at 4-5). With respect to Berget, Respondent claims that he was
unfamiliar with the coal lab and told Arnold and Steagall to contact the
installer. (Id. at 4). Berget was not involved with the upgrading or
modification of the coal lab, so he had no knowledge of the specifics of the
installation. (Id.). His lack of knowledge was so great that he asked
Ramirez to tell the miners not to ask him about it. (Id.). Berget simply
relied on his certified electricians. (Id.). Finally, Berget never
concluded that there was a hazard or left a perceived hazard of others. (Id.
at 4).

The
evidence suggests that no one was particularly knowledgeable about the coal
lab. The room was installed by an outside contractor, and the electricians were
not even sure about what equipment was in place. (Tr. 243, 391-392, 478-483). Arnold
did not have any additional information that Berget did not have and, in fact,
Arnold went to Berget hoping he would have some expertise. (Tr. 247). Berget
was a certified electrician as well, in addition to being Respondent’s only
electrical engineer. (Tr. 244-245, 475-477, 698-699, 790, 816-819). In short,
Berget, as a member of management, was arguably more qualified than Arnold and
was in the same (or perhaps a better) position to learn information about the
fan motor as Arnold. His far more lenient treatment has no rational basis in
the record.

Respondent’s
claim that Arnold and Berget are not comparable because Berget never concluded that
a hazard existed is likewise unpersuasive. In its briefs, Respondent argued
that Arnold was punished for failing to lock out or tag out the motor. (Respondent’s
Post-Hearing Brief at 11-16). It believed this failure was particularly
serious because that possible condition exposed miners to a grave hazard. (Id.).

Respondent’s
argument does not align with the facts in this case. Perhaps most importantly,
Arnold and Steagall credibly testified at all times that they were by no means
certain that there was a hazard. (Tr. 244-246, 282, 389-395, 403-404, 477, 408,
685-686). The two electricians talked to two other members of management,
including Respondent’s only electrical engineer, to seek answers. Berget essentially
said the same thing; he did not know if there was a hazard . Each told Arnold
and Steagall to follow up with the manufacturer or promised to follow up
himself. (Tr. 245-247, 393, 396-398, 477-478, 482-483). There is simply no
reason to make a distinction between Arnold and Berget.

However,
Respondent’s argument on this point raises more fundamental problems in its
case. Respondent took great pains to note in its briefs that Arnold “perceived”
or “believed” there was a hazard, rather than claiming such a hazard existed. (see
e.g. Respondent’s Reply Brief at 1). It points to the fact that
Arnold filled out the “imminent danger” section on his monthly inspection
report and that Martin testified he heard Arnold call the condition an
“imminent danger.” (Tr. 249, 719-721). This is because Respondent maintains
that the fan motor at issue was properly installed and never was a hazard. (Respondent’s
Reply Brief at 5). And this was Respondent’s basis for contending Arnold
and Berget are differently situated: Arnold believed that a hazard existed and
wrongfully failed to act, while Berget believed there was no hazard and
appropriately declined to act. But even if Arnold subjectively believed there
was a hazard and Berget subjectively did not-- that does not change the facts
that Arnold and Berget were both similarly situated and received disparate
treatment.

With respect to
the fan motor, a hazard either existed or did not. Arnold or Berget’s
subjective belief about whether a hazard existed would not change that status. A
whole subchapter of the Mine Act regulations (Subchapter H) deals with training
of miners. 30 C.F.R. §§46-49. That training is designed, in part, to ensure
that miners are able to recognize the existence of hazards. Whether a miner
sees and ignores an unsafe condition or sees an unsafe condition and fails to
recognize it as such, miners will in any case still be exposed to a hazardous
condition and the requirements of the Act will not be met. It is beyond of the
scope of the instant matter to determine whether the fan motor was hazardous. However,
if there was a hazard then both Arnold and Berget saw it and should have
recognized it. If that were the case, then both should have been punished for
failing to lock out or tag out the hazardous motor. If it was not hazardous
then neither Arnold nor Berget should have been punished for not locking or
tagging it out. Their subjective beliefs or reasons for not locking or tagging
out the motor are irrelevant.[29]

With respect to
Martin, Respondent claims the he was not a certified electrician and unfamiliar
with the installation. (Respondent’s Reply Brief at 5). It argues that
Martin told Arnold and Steagall that they should lock out or tag out the
equipment if they believed it appropriate. (Id.). Finally, as with
Berget, it argues Martin never concluded that there was a hazard or left a
perceived hazard of others. (Id.).

As with Berget, I
find that Arnold did not have any particular knowledge about the installation
and was unfamiliar with it as well. While it is true that Martin was not a
certified electrician, he was nonetheless apparently relied on for electrical
issues and could have locked or tagged out the equipment if he was so inclined.
In fact, he was a former MSHA inspector and received MSHA’s standard electrical
training. (Tr. 683-684, 717). The argument regarding Martin’s subjective belief
is rejected for the same reasons discussed with respect to Berget, supra.
I see no reason to believe that Berget or Martin were differently situated than
Arnold in any substantive way and find that their lenient treatment, when
contrasted with the harsher punishment dealt Arnold, clearly showed disparate
treatment.

Beyond the
issues with Berget and Martin, I find that Arnold experienced disparate
treatment with respect to the length of time he was held out. Arnold was held
out of seven days, while Hoffman testified that the longest amount of time he
could recall for an investigation was four days. (Tr. 677-678).

Arnold also
credibly testified, and provided documentary evidence, to show that other
miners had entered information into the “imminent danger” section of their
monthly reports without discipline over the lock out tag out issue. (Tr. 297-313).
This also clearly shows disparate treatment.

Further, Arnold
and Steagall recounted several incidents in which miners who failed to lock or
tag out equipment were not given a written warning. Arnold and Steagall both
recalled an incident in which Halgryn and Ramirez contacted a belt with a
shovel while using a metal detector. (Tr. 313-322, 420, 430, 554-555, 799-800).
Steagall
and Arnold were not aware of Halgryn or Ramirez having received any discipline
for this incident. (Tr. 317, 421-422). Ramirez testified that he was coached,
but did not receive a written warning for this condition. (Halgryn testified
that even this had not occurred). (Tr. 559-560, 836).

With respect to
this incident, Respondent argued that the equipment was locked out but that
Ramirez and Halgryn simply did not add a group lock. (Respondent’s Reply
Brief at 3-4). The testimony supports this assertion. (Tr. 329,
555-556). Respondent argues that this was only a technical violation which
placed no one in danger, unlike Arnold’s failure to lock out or tag out the
motor here. (Respondent’s Reply Brief at 4).

The testimony on
the purpose of a “group lock” and an “individual lock” was meager. It would not
be appropriate at this time to parse the technical aspects of Respondent’s
various rules. It is sufficient to note that Arnold was punished for failing to
lock out or tag out equipment while Halgryn and Ramirez were not punished (or
punished more lightly) for the same issue. Furthermore, even if the group lock
did render the condition totally safe, Respondent also asserts that the motor
at issue here posed no danger and that only Arnold and Steagall believed there
was a danger. In light of such, from Respondent’s perspective, the situations
were identical with respect to safety, making the disparate treatment all the
more stark.

Arnold and Steagall recounted several
other incidents involving miners who failed to lock or tag out equipment. Those
incidents included an event where Beyale and Benny saw Arthur standing on a
belt boom, one where a locomotive derailed and was not tagged out before the
person left the train, another involving a crusher not locked out during an
inspection, another involving Arnold not locking or tagging out reclaimers, and
a final one where electrical wires were not locked out. (Tr. 271, 321, 430-431,
446, 473, 552, 554, 801). Arnold did not believe anyone was punished with
respect to these incidents and Steagall was uncertain. (Tr. 272, 322, 447,
472-473).   Respondent argued that, with respect to the incident involving
Benny and Beyale, the equipment was locked out and tagged out immediately and
the miner was disciplined. (Respondent’s Reply Brief at 5). Further,
Lynch testified to several other lock out/tag out incidents where miners were
punished. (Tr. 780-787). I find that the testimonial evidence with respect to
these events was too vague and uncertain to support Arnold’s claim of disparate
treatment.

Regardless of these incidents, the
treatment of Berget and Martin, the length of the suspension, the other miners
who entered information in the imminent danger section of their reports, and
the incident involving Halgryn and Ramirez are ample support for a finding of
disparate treatment.

In light of the foregoing findings
regarding Arnold’s protected activity, the adverse employment actions he
suffered, and the discriminatory nexus between those two (as shown by the
circumstantial evidence of knowledge, hostility, coincidence in time, and
disparate treatment), I find that Claimant established a prima facie
case of discrimination under the Mine Act. Further, for the reasons discussed supra,
I find that Respondent was unable to rebut this prima facie case.

II.               
Respondent Proffered Affirmative Defense Was Pretextual

If a Claimant
establishes a prima case of discrimination, the operator may make an
affirmative defense by proving by a preponderance of all the evidence that the
adverse action would still have occurred absent the protected activity. See Pasula,
2 FMSHRC at 2799-2801; Robinette, 3 FMSHRC at 819-820; and U.S. Steel
Mining Company, 23 FMSHRC 981, 988-989 (Sept. 2001). An affirmative defense
is usually made by showing “past discipline consistent with that
meted out to the alleged discriminatee, the miner's unsatisfactory work record,
prior warnings to the miner, or personnel rules or practices forbidding the
conduct in question.” Bradley v. Belva Coal Company, 4 FMSHRC 982,
993 (Jun. 1982). The Commission summarized the judge’s task in evaluating
affirmative defenses in, Turner v. National Cement Company of California,
stating:

[A] defense should not be
“examined superficially or be approved automatically once offered.” Haro v.
Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing defenses,
the judge must “determine whether they are credible and, if so, whether they
would have motivated the particular operator as claimed.” Bradley, 4
FMSHRC at 993. The Commission has held that “pretext may be found … 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 v. Jim Walter
Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC at
1937-38).

33 FMSHRC 1059, 1072 (May 2011). In
the interest of ensuring that judges adequately scrutinize the operator’s
affirmative defense, the Commission has explained “[i]t is not sufficient for
the employer to show that the miner deserved to have been fired for engaging in
the unprotected activity; if the unprotected conduct did not originally concern
the employer enough to have resulted in the same adverse action, we will not
consider it.” Pasula at 2800. The operator must show that it considered
the employee deserving of discipline for the unprotected activity alone and
would have disciplined him solely for that. Id.

In its brief,
Respondent challenges the Commission’s allocation of the burden of proof with
respect to affirmative defenses. (Respondent’s Post-Hearing Brief at 11,
FN 7). In addressing Respondent’s argument, it might be helpful to first
understand the various burdens at play in a discrimination proceeding under the
Mine Act. In Robinette, the Commission clearly explained those burdens:

The “ultimate burden of
persuasion” on the question of discrimination rests with the complainant and
never “shifts.” As we indicated in Pasula, above, there are
intermediate burdens which do shift. The complainant bears the burden of
producing evidence and the burden of persuasion in establishing a prima
facie case. The operator may attempt to rebut a prima facie case by
showing either that the complainant did not engage in protected activity or
that the adverse action was in no part motivated by protected activity. If the
operator cannot rebut, he may still affirmatively defend... The twin burdens of
producing evidence and of persuasion then shift to him with regard to those
elements of affirmative defense. If the operator cannot rebut or affirmatively
defend against a prima facie case, the complainant prevails. Of course,
the complainant may attempt to refute an affirmative defense by
showing that he did not engage in the unprotected activities complained of,
that the unprotected activities played no part in the operator's motivation, or
that the adverse action would not have been taken in any event for such unprotected
activities alone. If a complainant who has established a prima facie
case cannot refute an operator's meritorious affirmative defense, the operator
prevails. This latter consequence stems from the fact that the “ultimate”
burden of persuasion never shifts from the complainant. Cf. Wright
Line, 251 NLRB No. 150, 105 LRRM 1169, 1173-1175 (1980) (adopting a
discrimination test substantially the same as the one announced in Pasula).

Robinette at
818 FN 20.

Respondent
objects to this framework, claiming it was rejected in several Supreme Court
decisions. It notes, “In light of recent decisions of the Supreme Court under
similar statutes, to establish Arnold’s claim, he and MSHA now must carry the
burden of proof and show that ‘but for’ Arnold’s protected activity he would
have received no discipline or change in his evaluation.” (Respondent’s Post
Hearing Brief at 11, FN 7 citing Gross v. FBL Financial Services, Inc.,
557 U.S. 17, 176 (2009); University of Texas Southwestern Medical Center v.
Nassar, 570 U.S., 133 S. Ct. 2517, 2525 (2013); and Burrage v. U.S.,
571 U.S., 134 S. Ct. 881, 888 (2014)). Respondent explains that under the
Supreme Court’s holdings in those cases, the protected activity must be “the
straw that broke the camel’s back” leading to the discipline/evaluation
modification. (Id.).

However, after
analysis of the cases cited by Respondent, it is evident that the definition of
“because” applied in Gross and its progeny does not apply here. In Gross,
the Court held that the phrase “because of” under the ADEA meant that a
plaintiff must prove that age was a “but-for” cause of the employer’s adverse
decision, a conclusion it repeated in Burrage. Gross at 174 and Burrage
at 888-889. However, it also warned courts to “be careful not to apply rules
applicable under one statute to a different statute without careful and
critical examination.” Gross at 175 quoting Federal Express Corp. v.
Holowecki, 552 U.S. 389 (2008). This indicates that rather than making a
broadly applicable definition of “because” in all statutes, the Court was
indicating that the phrase “because of” can mean “but-for” in certain
circumstances. In analyzing statutory language with respect to this
burden-shifting issue, the Court has emphasized both that determining the
meaning of a term like “because” requires analysis of both the text of the
provision at issue and an understanding of the overall structure of the
statute. See Nassar at 2527-2528.

A close reading
of the text of section 105(c) of the Mine Act and an understanding of the
context of that language shows that the Commission’s intermediate burden
shifting described in Robinette is appropriate. With respect to text, the
ADEA (which was at issue in Gross) states it is unlawful to
“discriminate against an individual… because of such individual’s age.” 29
U.S.C. §623(a)(1)(emphasis added). The text refers to a status or criteria that
an employer cannot consider when making employment decisions. By contrast, the
Mine Act states, “[n]o person shall discharge or in any manner discriminate
against…any miner…because such miner…has filed or made a complaint under or
related to this chapter, including a complaint notifying the operator… of an
alleged danger or safety or health violation.” 30 U.S.C. §815(c)(1). Unlike the
ADEA in Gross (or Title VII in Nassar), the focus in the Mine Act
is not the unlawful actions of the employer, but instead based on the protected
activity in which the miner engaged.

This is a significant
textual difference. It shows that despite the use of the term “discrimination”
in the Act, Section 105(c) is more akin to federal whistleblower protection
than the discrimination protections of the ADA. See e.g. 18 U.S.C. §1514A(a)(1);
42 U.S.C. §5851; and 49 U.S.C. § 42121(b)(1) (statutes providing
protection to people who report specific wrongdoing). The
goal of whistleblower statutes is not to protect a certain passive class of
people. Instead, the goal is to encourage people to act in a manner desired by
law and to protect them when they do so. See Day v. Staples Inc., 555
F.3d 42, 53 (1st Cir. 2009)(whistleblower protections encourage and protect employees
who report fraud); Haley v. Retsinas, 138 F.3d 1245, 1250 (8th
Cir. 1998) (“Laws protecting whistleblowers are meant to encourage employees to
report illegal practices without fear of reprisal by their employers.”); and Watson
v. Department of Justice, 64 F.3d 1524, 1530 (Fed.
Cir. 1995)(“[t]he [Whistleblower Protection Act] was clearly intended to
encourage such disclosures and to prevent reprisals against the whistleblowing
employee.”). The government has no interest (or ability) to encourage people into
a passive class, but it can encourage miners to raise safety issues.

The legislative
history of the Mine Act similarly shows the Congress’ intent to encourage
miners to actively participate in ensuring their own health and safety and to
protect them when doing so. As noted supra, Section 105(c) was intended
to encourage miners “to play an active part in the enforcement of the [Mine
Act]” recognizing that, “if miners are to be encouraged to be active in matters
of safety and health, they must be protected against any possible
discrimination which they might suffer as a result of their participation.” Legislative
History at 35. Clearly Congress did not think of miners as a passive class,
but instead sought to make miners into active protectors of their own health
and safety and to ensure that miners felt safe in blowing the whistle on unsafe
conditions.

After careful
and critical examination of textual and structural differences between the Mine
Act and the statutes discussed in Gross, Nassar, and Burrage
I find no reason to divert from the Commission’s traditional analysis of
affirmative defenses. Given the Mine Act’s purpose in encouraging and
protecting miners to report health and safety conditions, the requirement that
Respondent show by a preponderance of the evidence that it would have taken the
same action regardless of the protected activity is entirely appropriate. This
ensures miners will suffer absolutely no punishment for fulfilling the purposes
of the Act and acting as stewards of their own health and safety. Respondent
must justify all discipline as being related to unprotected activity.

With those
burdens in mind, the question is whether Respondent can prove that it would
have taken the same action regardless of Arnold’s protected activity. In its brief,
Respondent argued that it would have punished Arnold because of his failure to
lock out/tag out the motor, regardless of his protected activity. (Respondent’s
Post-Hearing Brief at 11-17). Respondent stated that even if it was
motivated in part by Arnold’s protected activity, Arnold violated the clear
language of the lock out/tag out policy and §77.502. (Id. at 12 and 14).
It noted that Arnold, Beyale, and Dixon all acknowledged the requirement to
lock out serious safety issues under the company policy. (Id. at 14). Respondent
noted similar requirements under the life-saving rules and the isolation
management policy which Arnold also violated. (Id.). It also stated that
all of the adverse employment actions suffered by Arnold were justified by this
unlawful failure. (Id. 12-17).

Additionally, Respondent
asserted that Arnold was only held out of service when it learned a potential
hazard was not locked or tagged out-- not because Arnold reported that
condition to management, Dixon, or MSHA. (Respondent’s Post-Hearing Brief
at 13). It further asserted that the suspension only occurred when it learned
Arnold may have failed in his obligations and lasted only as long as necessary
for Respondent to conduct an investigation. (Id. citing Colowyo
Coal Company, 26 FMSHRC 105, 115 (Feb. 2004) (ALJ Manning) and Myers v.
Freeport-McMoran Morenci, Inc., 34 FMSHRC 1593, 1610-1611 (Jul. 2012) (ALJ
Manning)). That investigation showed Arnold had failed to follow the lock out/tag
out policy. (Id. at 14). Once the investigation was completed, Arnold
was returned to work with full pay. (Id. at 13).

Respondent also argued that
not giving Arnold a written warning would have turned the purpose of the Act on
its head by encouraging a miner not to be actively engaged on safety matters. (Respondent’s
Post-Hearing Brief at 15 citing Ross v. Shamrock Coal Company, Inc.,
13 FMSHRC 1475, 1485 (Sept. 1991) (ALJ Fauver). It also asserted that Arnold’s
evaluation was only changed because he requested it. (Id. at 17). It avowed
that, in light of the locking and tagging out issues, it was appropriate and
reasonable for Ramirez to modify the evaluation and add comments. (Id.).
It further noted that Arnold’s overall score was unaffected and his next
evaluation was given top marks. (Id.).

On the whole,
Respondent argued that the punishment Arnold received was reasonable because he
did not act and knew he was placing miners in danger. (Respondent’s
Post-Hearing Brief at 16). It noted that employers are allowed to punish employees
whose unlawful conduct threatens the physical welfare of other miners. (Id.
citing Collins v. FMSHRC, 42 F.3d 1388 (6th Cir. 1994). Respondent asked
what actions it could have taken if it believed an electrical hazard existed
and that an electrician did not lock it or tag it out or bring it to “higher
management” to resolve the issue. (Id. at 12). It asserted that Arnold’s
complaint did not insulate him from the repercussions of his actions. (Id.).

Respondent
argued that, even if Arnold was engaged in protected activity, his misconduct –
in the way he went about that activity – provided sufficient ground for
discharge. (Respondent’s Post-Hearing Brief at 12 citing Benes v.
A.B. Data, Ltd., 724 F.3d 752, 754 (7th Cir. 2013). Consistency with
Respondent’s history required at least a written warning. (Id. at
16-17). Respondent argues that, in light of these circumstances, the written
warning, holding out with pay, and encouragement to be proactive was “minor”
and “understated.” (Id. at 14-16).

With respect to
history, Respondent argued that at least three other employees were terminated
for lock out/tag out violations. (Respondent’s Post-Hearing Brief at
16). Respondent argued that Ramirez and other “upper management” people had never
received the monthly inspection reports Arnold cited as evidence of disparate
treatment and that, as a result, they were not part of the decision-making
process. (Id. at 15-16). BHP further argued Martin was not punished
because he did not believe there was a hazard and said that Arnold could lock
out or tag out the equipment if necessary (Id. at 15). Further, Martin
was not an electrician with lock out/tag out responsibilities. (Id. at
15).

After careful
review of the evidence, I have determined that Respondent failed to establish
that it would have taken the same actions here in the absence of Arnold’s
protected activity. Complainant has conclusively established that Respondent’s
explanations were mere pretext. Respondent suspended Arnold, gave him a written
warning, and gave him a lower performance evaluation not because he failed to
lock out or tag out equipment-- but because he caused a 103(g) inspection and
that inspection resulted in a citation.

The evidence
establishes that the failure to lock out or tag out the equipment at issue was
not Arnold’s responsibility. Arnold credibly testified that management told him
on numerous occasions not to lock out or tag out the equipment. (Tr. 244, 247,
282-283). The evidence establishes that no one was certain on January 22 or
February 14 about whether a hazard actually existed. In light of that fact,
Arnold was told to refrain from taking action until they received a more
definitive answer. (Tr. 244, 282, 395). Steagall broadly confirms that he instructed
Arnold to wait until they had answers. (Tr. 403-404). As noted supra, on
February 19, Martin gave Arnold and Steagall information about the fan motor,
but the electricians still did not believe their questions were answered about
whether there was a hazard. (Tr. 250-251, 371-373, 405-406). In an attempt to
get information he deemed relevant to making an informed decision, Arnold
threatened to call in 103(g) at that time. (Tr. 250-251, 692).

If Martin had
given Arnold permission at any time to lock out or tag out the motor, Arnold
would have done so. Despite the presence of many electricians (including
Steagall) for parts of the various conversations between Arnold and Martin, no
one besides Martin could recall this permission. The record establishes that
Arnold was constantly on the lookout for safety issues and had consistently
locked out and tagged out equipment regularly in the past. (Tr. 379-380,
393-394, 429-430, 456, 547, 653, 712, 754, 775). Arnold had an immaculate
performance record for over his nearly 30 years at Respondent’s mine and there
was no indication he had a history of failing to lock out or tag out equipment
in the past. (Tr. 278, 283, 325). In light of this history, there is simply no
reason to believe that Arnold vindictively and willfully sought to saddle
Respondent with a fraudulent citation. It is likely that Martin’s evident
disdain for Arnold as a professional and the passions that arose as a result of
the 103(g) inspection caused Martin to misremember what he had told Arnold. (Tr.
712-713).

Given the fact
that Arnold was told by management to hold off on acting, Respondent’s argument
that he should have told “upper management” for resolution is also inappropriate
grounds for discipline. As noted earlier with respect to the prima facie
case, an operator has knowledge of a condition when an agent of the operator
knows or should know about it. Martin Marietta Aggregates at 637. As
soon as Steagall knew about the condition on January 22, under the Mine Act’s
case and statutory law , Respondent had actual, constructive, and/or imputed
knowledge of such. The Mine Act does not define “upper management” and does not
require miners to inform all members of this vague class of managers about
safety conditions. Similarly, Respondent could point to no company policy which
required miners to report to “upper management”. Respondent instead noted there
was a policy in place requiring miners to “give the company a chance.” (Tr. 253,
270, 273, 338, 418, 548-551, 755, 807). Arnold had in fact given the company a
chance in his expressed concerns about the coal lab fan and thus fulfilled the
company policy. In fact, he gave it three chances on January 22, February 14,
and February 19. Further, Arnold and Steagall were punished for not raising
issues to “upper management” but Martin and Berget were not, showing disparate
treatment. Therefore, this explanation for Arnold’s punishment is implausible
and exceptionally weak. Instead, this evidences that the upper management
requirement was a pretext used to justify punishing Arnold for the 103(g)
inspection and citation .

Ultimately,
whether Arnold was told he could lock out or tag out the motor is immaterial. Even
if Martin told Arnold he could act with respect to the equipment, the evidence
establishes that Respondent would not have taken the same action absent
Arnold’s protected activity. The time-line of events at issue show clearly that
this was the case. On January 22 Arnold informed management about the fan
motor. At that time he did not lock out or tag out the equipment. Steagall and
Berget were unquestionably aware of that failure. Arnold was not punished that
day. Steagall and Berget were also not punished for failure to lock out or tag
out. On February 14, Arnold again raised the issue, this time with Steagall,
Berget, and Martin. Once again he did not lock or tag out the equipment, all
three members of management were aware, and no one was punished. Finally, on
February 19, Arnold raised the issue with Martin. Once again, he did not lock
or tag out the equipment; Martin was aware of that fact, and no one was
punished.

However, later
that day Arnold implored his local union president to call in 103(g) and that
action eventually resulted in a citation for Respondent. (Tr. 253, 263-264,
491, 705, 708, 753-754, 803). Only then was Arnold punished. Respondent’s claim
that he was now punished for failure to lock out and tag out defies logic.   Arnold
had been failing to lock out and tag out, with management knowledge, for nearly
a month without repercussions. He was only punished for such when he had engaged
in protected activity and contacted MSHA. As noted supra, “[i]t
is not sufficient for the employer to show that the miner deserved to have been
fired for engaging in the unprotected activity; if the unprotected conduct did
not originally concern the employer enough to have resulted in the same adverse
action, we will not consider it.” Pasula at 2800. Furthermore,
two other people at the mine, Martin and Berget, who had also failed to lock
out and tag out the fan, were not punished.[30] In fact,
Martin had input into Arnold’s discipline. Clearly, the punishment was not
about locking out or tagging out, it was about getting the company in trouble
with MSHA. The message from management was clear: Respondent will indefinitely
tolerate a failure to follow safety policies, but if you complain to MSHA,
punishment will be swift.

The
justification for Arnold’s punishments therefore are pretext. If Arnold had not
caused a 103(g) inspection and citation, matters would have continued as they
had for the previous month: the motor would not have been locked out;
management would have known it was not locked out; and no one would have cared.
Arnold would not have been suspended; he would not have received a written
warning; and he would not have received a more pejorative evaluation. The
timing and nature of the punishments in this matter confirm the pretextual
nature of the justification. If Arnold’s indefinite suspension without pay were
for failure to lock out and tag out, then it would have arguably occurred in
January. Further, Steagall would not have been paid during his suspension and
Berget and Martin would have been suspended as well. If that was the cause of
the written warnings, then Berget and Martin also would have been warned. Respondent’s
evidence showing other employees had been terminated for lock out/tag out
violations was vague and confusing, whereas the treatment of Steagall, Berget,
and Martin was quite apparent. The best documented evidence shows that other
miners had written in the imminent danger section of their monthly reports
without suffering any adverse action.

In light of the
evidence presented, I find that Respondent’s claim that Arnold was disciplined
for failing to lock out or tag out equipment was weak and implausible. In short,
I have determined that that Respondent’s asserted justification is merely pretext
to excuse unlawful discriminatory. Therefore, Respondent’s affirmative defense
must be rejected.

PENALTY

The Secretary proposed a civil penalty
amount of $20,000.00 against Respondent for the violation of 105(c). When
assessing a civil penalty, the ALJ is independently responsible for determining
the amount of the penalty in accordance with the six criteria set forth in
section 110(i) of the Act; 30 U.S.C. § 820(i). See Performance Coal Co.,
2013 WL 4140438 (Aug. 2013) (citing Cantera Green, 22 FMSHRC 616, 620-21
(May 2000)). The six criteria include: the appropriateness of the penalty to
the size of the business of the operator charged, the operator’s history of
previous violations, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violations, and
the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.   Id. The Commission
has used these factors in the past while assessing civil penalties in
discrimination proceedings. See Sec’y of Labor on Behalf of Poddy v.
Tanglewood Energy, Inc., 18 FMSHRC 1315, 1313-1322 (Aug. 1996).

At the time the instant violation
occurred, Respondent’s operation was very large, employing over 500 people. (Secretary’s
Post-Hearing Brief at 41).

The Secretary provided no evidence of
previous 105(c) violations committed by Respondent.

The Secretary asserted Respondent’s
action constituted “High” negligence. (Secretary’s Post-Hearing Brief at
41). With respect to negligence, Commission case law has provided that the ALJ
must consider whether “the operator intended to commit the violation of section
105(c) rather than whether it intended to chill future protected activities.” Poddy
18 FMSHRC at 1319. However, a finding of intentional conduct does not
necessarily lead to a finding of high negligence. Id. To find high
negligence, the ALJ must make a determination that there was “an aggravated
lack of care that is more than ordinary negligence.” Id. at 1320.

I have already determined that the
Respondent failed to successfully mount an affirmative defense and was unable
to prove it would have punished Arnold based on unprotected activity alone.
This determination necessitates a finding that Respondent’s actions in violation
of 110(c) were intentional. Respondent lacked a good-faith basis for punishing
Arnold and knew that it was attempting to retaliate against one of the mine’s
strongest safety advocates. Nothing presented mitigates this negligence in any
way. As a result, Respondent’s actions constituted aggravated lack of care and
a finding of “High” negligence is appropriate.

When analyzing the gravity criterion,
the ALJ must look to both the seriousness of the violation and the importance
of the standard violated. In implementing section 105(c), Congress intended to
“protect miners against the chilling effect of employment loss they might
suffer as a result of illegal discharge.” Poddy, 18 FMSHRC at 1321. A
chilling effect is not, however, presumed for every violation. Id. To
determine whether a chilling effect has occurred, the Commission must look at
both a subjective (testimony as to whether there was a chilling effect) and an
objective (whether the adverse action would reasonably tend to discourage
miners from engaging in protected activity) standard. Id.

For the reasons discussed in the
discussion on adverse employment actions supra, Respondent’s actions
would reasonably tend to discourage miners from engaging in protected activities.
Further, both Arnold and Beyale testified to actual, subjective chilling effect
at the mine. (Tr. 322-323, 796). Therefore, Respondent’s actions were
sufficiently grave to support a civil penalty.

Respondent did not argue at hearing or
in its brief that if the operator was assessed a civil penalty in the amount of
$20,000.00 it would not be able to continue in business. See also
Stipulation 16 at JX-1.

Respondent
has taken no action that would constitute “abatement” of the suspension, the
written warning, or the negative performance review.

After applying
the 110(i) criteria and reaching the aforementioned conclusions regarding the
Secretary’s request for a civil penalty assessment, this Court finds that a
penalty in the amount of $20,000 is appropriate.

CONCLUSION & ORDER

Based on the
above, I find that Respondent violated §105(c) of the Act by discriminating
against Arnold for engaging in protected activity. Therefore, it is hereby ORDERED
that Respondent remove any and all negative references to this matter in
Arnold’s personnel records. It is further ORDERED that Respondent ensure
someone without animus complete Arnold’s June 2013 performance review without
negative reference to this matter or the SLARS program. Finally, Respondent is
hereby ORDERED to pay a civil penalty of $20,000.00.  

/s/ John Kent Lewis

John Kent Lewis

Administrative
Law Judge

Distribution:

Karla Jackson
Edwards, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin
Street, Suite 501, Dallas, TX 75202

Charles W.
Newcom, Esq., Sherman & Howard, LLC, 633 Seventeenth Street, Suite 3000,
Denver, CO 80202

J. Don Arnold,
3711 Highland View Drive, Farmington, New Mexico 87402

/tjb

[1] Hereinafter the
Joint Exhibits will be referred to as “JX” followed by the number. Similarly,
the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits
will be referred to as “RX.”

[2] The hearing in
this matter occurred on the second and third day of three days of hearings
involving BHP Navajo. The first day of hearing concerned an unrelated matter
which was later settled. However, the court reporter numbered the transcript
pages continuously beginning on that first day. As a result, the transcript in
this matter begins at page 223. Hereinafter the transcript will be cited
as “Tr.” followed by the page number.

[3]
Kerry
Steagall was subpoenaed and testified at hearing. (Tr. 381). He worked at the
mine for 36 years and retired in June 2013, last working as an electrical
supervisor. (Tr. 381-383, 458-459). In that capacity he made schedules, kept
records, and conducted inspections. (Tr. 383). He supervised Arnold and Alfred
Bennally and was supervised by Tim Ramirez. (Tr. 383). Steagall was a qualified
electrician for 40 years. (Tr. 383-384). No loyalty to Arnold or Respondent
affected his ability to testify. (Tr. 382). He was trained on the Mine Act as
it relates to locking/tagging out equipment and making complaints without
retaliation. (Tr. 419-420).

[4]
At safety
meetings, miners were told that if they saw hazardous machinery they should tag
it out and remove it from service. (Tr. 270). Arnold testified that, in
reality, this rarely happened as certain equipment was never shut down and was
kept running until it could be fixed. (Tr. 270-271). Here, if Arnold tagged out
the motor, it would have affected the x-ray portion of the lab and the lab tech
may not have been able to analyze coal. (Tr. 395-396).

[5]
Jim Berget
was present at the hearing and testified. (Tr. 474). Berget retired from BHP
after 22 years on May 2, 2014. (Tr. 474). During 2012 and 2013, Berget worked
as the only electrical engineer at Navajo Mine. (Tr. 475). He was a qualified
electrician for 30 years. (Tr. 476-477). No loyalty to Arnold or Respondent
affected his ability to testify. (Tr. 475).

[6]
Monthly
inspection forms and related work orders were numbered, tracked, and filed
(both on computer and in hard copies) to ensure that repairs were done on time.
(Tr. 306-307, 311-313, 467-468). These forms were available for anyone to
review. (Tr. 308). Steagall did not always receive the forms but they always
went to Tim Ramirez. (Tr. 307, 468-469). Ramirez only reviewed the
forms when there was an incident that required documentation or root-cause
analysis to prevent future issues. (Tr. 611-612).

[7]
Tyler
James Martin was present at the hearing and testified. (Tr. 683). In 2013
Martin was Respondent’s safety specialist. (Tr. 683). Before that, he was an
MSHA inspector and had received all MSHA inspection and NEC training. (Tr.
683-684, 717). He had no electrical training beyond MSHA inspection training. (Tr.
684). He had spent 21 years in the mining industry, including two with
Respondent, at a variety of jobs. (Tr. 716-718).

[8]
At
hearing, Tim Ramirez was present and testified. (Tr. 486). At the time of the
hearing, Ramirez worked in the mining industry for seven years, all with BHP. (Tr.
486, 589). In 2013, Ramirez was the superintendent of maintenance execution,
coal plant. (Tr. 487, 588-589). He supervised four salaried employees, one
admin, and 27 or 28 mechanics and electricians including Steagall. (Tr. 317,
487, 589). He was supervised by Halgryn and Goeckner. (Tr. 316-317, 850). He
had a degree in mechanical engineering from New Mexico Tech. (Tr. 591).

[9]
Lawrence
Beyale was present at the hearing and testified. (Tr. 788). At that time, he
was maintenance-A supervisor and had worked for Respondent for about 30 years. (Tr.
788-789). In February 2013, Beyale was the miners’ rep and his supervisor was
Steagall. (Tr. 789).

[10]
Barry
Dixon was present at the hearing and testified. (Tr. 802). He was the union
president and business manager for the local at BHP Navajo as well as an
electrician for 27 years. (Tr. 802-803, 810). He retired in 2006 after an
entire career with BHP. (Tr. 336, 803, 810).

[11]
Ruth
Williams was present at the hearing and testified. (Tr. 813-814). She was an
MSHA inspector for 17 years and her supervisor was James Hager. (Tr. 814). She
conducted EO-1, 103(g), and imminent danger inspections. (Tr. 814-815). She
completed two EO-1 inspections at Navajo Mine each year. (Tr. 815).

[12] Goeckner was
present at the hearing and testified. (Tr. 837). At the time of the hearing,
Goeckner was the general manger at Navajo Mine, a position he had held for two
years. (Tr. 837-838). He had worked for Respondent for 23 years, including 16
at Navajo. (Tr. 838). He received a mining engineer degree in 1990 from the
University of Idaho. (Tr. 838-389). He had worked in various capacities in U.S.
and Australian mines. (Tr. 838-839).

[13]
Mark
Hoffman was present at the hearing and testified. (Tr. 627). Hoffman started
with Respondent in 2011 and it was his first job in the mining industry. (Tr.
628-629). He had around 30 years of experience in human resources. (Tr. 627,
658-659).

[14]
At
hearing, Val Lynch was present and testified. (Tr. 734). He served as Mine
Representative and heard the testimony of Arnold, Steagall, Ramirez, Hoffman,
Martin, and Berget. (Tr. 734). In 2013, Lynch was the safety manager and he
held that position since March 2007. (Tr. 734, 766). Martin reported to Lynch. (Tr.
734). Lynch was in charge of regulatory issues, safety, security, training, and
compliance. (Tr. 766-767). Lynch had worked in safety at three different mines
starting in 1995 and had been in the mines since 1980. (Tr. 767-768).

[15] In Martin’s
testimony, he referred to only a single call, the second, in which Arnold was
not discussed. (Tr. 703-704). He either did not recall or simply failed to
mention the earlier call where Arnold and the 103(g) were discussed.

[16]
Rudy
Halgryn was present at the hearing and testified. (Tr. 829). He was the
maintenance manager at the mine. (Tr. 829-831). During 27 years in the mining
industry he had worked many jobs in different types of mines. (Tr. 829-831). He
held a degree in electrical engineering. (Tr. 830). Halgryn was from South
Africa and was certified as an electrician there; he did not have an MSHA
electrician’s card and was not a certified U.S. professional engineer. (Tr.
834-835).

[17] As will be
discussed infra, Martin was not a part of the consensus triangle that
disciplined Arnold and did not know it had copies of the electrical report in
March 2013. (Tr. 714-715).

[18] Lynch believed
the steps of the progressive discipline plan were verbal warning, written warning,
suspension, and termination. (Tr. 761-763).

[19]
SLARS stands for Safety Leadership Achievement Recognition. (Tr. 607). Under
the system miners were encouraged to look for hazards, correct them, document
issues, and isolate problems. (Tr. 607). The goal of SLARS was to improve
health and safety and to reduce citations. (Tr. 607-608). Miners were evaluated
under SLARS but for electricians it was optional. (Tr. 608).  

[20]
There were nine total evaluations and almost all noted the need to participate
in SLARS. (Tr. 604-605). Ramirez believed he raised one electrician’s safety
rating, Will Charley, because he produced documentation and addressed issues
quickly. (Tr. 605-606, 620-621). Arnold was not aware of Charley causing or
filing a 103(g) complaint. (Tr. 620).

[21] Martin
disagreed that Arnold was a reputed safety advocate and believed that he had a
reputation for being confrontational and vindictive. (Tr. 712). He knew
Arnold’s reputation while at Respondent and at MSHA. (Tr. 712). Martin heard
rumors Arnold would purposefully leave work incomplete and then call in 103(g)
complaints resulting in citations. (Tr. 712-713).

[22] At the time of
the hearing, the grievance had already been through Respondent’s three-step
grievance procedure and was awaiting arbitration. (Tr. 663-666).

[23] Steagall was retired at the time of the hearing. Further,
he was forthright about issues that he could not recall or things for which he
lacked knowledge. As a result, I found him to be disinterested in the outcome
of the hearing and extremely reliable as a witness.

[24] In my March 6,
2014 Order Denying Respondent’s Motion for Summary Decision, I addressed the
issue of whether any of Respondent’s post safety complaint actions toward
complainant – singly or in combination – constituted a “material adverse
action,” so as to raise a cognizable claim under §105(c). I hereby incorporate
the rationale contained therein without full recitation thereof.

[25] That Arnold’s
suspension was, in fact, a punishment is further bolstered by the fact that Hoffman
testified that miners were held out of service without pay generally in case a
suspension was later deemed necessary. (Tr. 649). However, in this case Ramirez
testified that at the consensus triangle, nothing more serious than a written
warning was discussed because of Arnold’s work record. (Tr. 538, 602). If
Respondent had no intention of suspending Arnold, the only explanation for this
holding out of service without pay was that it was a separate punishment
outside the company’s normal procedures.

[26] Respondent’s
admission that it could have held Arnold out with pay pending the investigation
but instead opted to hold him without pay further supports the conclusions of
material adverse action and discriminatory bias.

[27] Occasionally in
its briefs and often at hearing, Respondent argued that “upper management” did
not have actual knowledge of the protected activity. (See e.g. Respondent’s
Post-Hearing Brief at 12). Neither the term “upper management” nor anything
similar is defined in the Mine Act and no distinctions between “types” of management
exist in Mine Act jurisprudence. It is uncontested that Steagall was management
and therefore his knowledge is imputed to the corporate person of the
Respondent. It is not Claimant’s responsibility to show that each member of
management was personally aware of his protected activity. If “lower
management” was delinquent in passing messages to “upper management” it would
constitute a management concern.

[28] While Arnold
was a rank-and-file worker and Berget, Martin and Steagall were members of
management, in all ways relevant to this discussion, they were similarly
situated here. All four had the power to lock out or tag out equipment. Various
witnesses credibly testified that management and workers were held to the same
standard. (Tr. 548, 653-654, 761). And Steagall credibly testified that in the
electrical department, the distinction between management and worker was
insignificant because everyone was a certified electrician. (Tr. 433-434).

[29]
Respondent’s
position, when taken to its logical conclusion, would be extremely dangerous. Here,
Arnold was punished for recognizing a hazard but failing to lock out and tag
out (despite the fact that he went to three of his supervisors). Berget did not
recognize a hazard and therefore was not punished. However, they were both
looking at the same condition. The message is clear: If a hazard exists, it is
better to be entirely ignorant about it than to recognize it and bring it to
your superiors. You can violate the lock out/tag out regulations and policies
so long as you say you do not believe the hazard exists. Conversely, if there
is no hazard, asking questions and raising issues without locking and tagging
out (which given the lack of a hazard would be inappropriate) can lead to
punishment just as though you ignored an actual hazard. In short, the safe bet
with respect to safety hazards (real or potential) is keep your eyes closed and
your mouth shut.

[30] Respondent’s
claim that Martin and Berget are differently situated from Arnold is rejected
for the same reasons discussed in the prima facie case, supra. In
a related argument Respondent asserted that Martin was differently situated
from Arnold because he sent an e-mail to Lynch, “well before the dispute here
arose.” (Respondent’s Reply Brief at 2). Presumably this was intended to
show Martin was behaving “proactively” with respect to dangers. However that
email (C-4) was mailed on February 19, after Martin had already learned about
the 103(g) inspection and possible citation.