Michael K. McNary v. Alcoa World Alumina LLC (ALJ decision, December 21, 2017)

Read the official release (fmshrc.gov)

Plain-English summary

Michael McNary, an Alcoa employee and miners' representative, confronted a department superintendent during an emergency involving hot, pressurized slurry. McNary alleged that the superintendent threatened to remove him as a miners' representative, from the department, and from the plant because McNary asserted safety rights. After hearing the witnesses, Judge William B. Moran found that McNary had tried to replace the superintendent's command of the incident without invoking a protected stop-job right. The Judge held that the brief heated response arose from perceived insubordination during the emergency, was quickly brought under control, and would not chill a reasonable miner's exercise of protected rights. He dismissed the discrimination and interference claims, and the Commission later affirmed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(3)
• Outcome: McNary's discrimination and interference complaint was dismissed.
• Subsequent review: The Commission affirmed the dismissal in cent-2015-279-dm-commission.
• Key point: A manager's brief angry response during an emergency was not actionable interference when the employee had not invoked a protected right and the total circumstances showed a reaction to perceived insubordination.

Full text (FMSHRC public release)

FEDERAL

MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE

OF ADMINISTRATIVE LAW JUDGES

1331

PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,

DC 20004-1710

TELEPHONE:

202-434-9933 / FAX: 202-434-9949

December 21, 2017

MICHAEL K.

MCNARY,

Petitioner,

v.

ALCOA WORLD

ALUMINA LLC,

Respondent.

DISCRIMINATION

PROCEEDING

Docket No.

CENT 2015-0279-DM

MSHA Case No.

SC-MD-2014-05

Mine: Bayer

Alumina Plant

Mine ID:

41-00320

DECISION AND ORDER

Appearances:               Tony Oppegard, Esq., Lexington, Kentucky, and

Wes Addington, Esq., Whitesburg, Kentucky, for the Complainant

Christopher V. Bacon, Esq., Houston,

Texas, for the Respondent

Before:                        Judge

Moran

This case is before

the Court upon a complaint of discrimination, brought by Michael K. McNary,

alleging interference with his rights under Section 105(c)(1) of the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Mine Act,” or

“Act”). A hearing was held on August 15, 2017, in Victoria, Texas. For the

reasons which follow, examining the totality of the circumstances, the Court

finds that there was no cognizable interference against Michael McNary, nor any

other Mine Act discrimination against him. 

Procedural

Background

Docket No. CENT 2015-0279-DM

was assigned to this Court on May 6, 2015. After the parties had begun

discovery, the Respondent filed a Motion for Summary Decision on August 12,

2015, citing alleged procedural errors on the part of the Complainant, as well

as arguing that no adverse action had taken place. The Complainant opposed this

motion, arguing that he had experienced discrimination and interference while

working for the Respondent. After considering the evidence presented by both

parties, this Court granted the Respondent’s motion for summary decision on

September 28, 2015, and dismissed the proceedings.

Thereafter, on

October 27, 2015, the Complainant filed a pro se Petition for Discretionary

Review, arguing that the summary decision was issued in error. The next day,

Attorney Tony Oppegard noticed his appearance on behalf of Mr. McNary. The

Commission granted the petition for discretionary review on November 5, 2015,

and heard oral arguments on November 17, 2016. On March 28, 2017 the Commission

issued a decision finding that Alcoa was not entitled to summary decision as a

matter of law, and remanded the matter for further consideration. A hearing

before the Court then ensued.

Findings of Fact

Carlos Delgado was

called as Complainant’s first witness. Delgado has an associate’s degree in

occupational safety and health and another such degree in instrumentation and

electrical, which he described as “I & E.” Tr. 40; 42. In July 2000 he

began working for Alcoa, and he is presently employed by that entity as well,

working as an electrical technician. Tr. 43. Starting in his first year with

Alcoa, he also joined the emergency response team, and he has remained on that

team ever since then. Tr. 44. In that role, he has been a lead instructor for

the team, and he continues to “instruct the team on confined space rescue, high

angle rescue, industrial fire-fighting, first aid[], and CPR.” Tr. 44. In

addition, as of December 2011, he took over the role of a lead miners’ rep,

that is to say he was a MSHA miners’ rep. Tr. 43-44. “Miners’ rep” is a

shorthand reference to “miners’ representative.” With that new role, as the

United Steel Workers Safety and Health rep, it is “a 40 hour job of basic

safety and health.” Tr. 44. After assuming that miners’ rep role, a full time

role, Delgado’s    I & E work would only occur in the context of overtime. Though

unnecessary to resolve this matter, as background, Delgado briefly explained

the mining process at Alcoa’s Bayer Alumina Plant, which was also referred to

as the Alcoa Point Comfort facility. [1]

Tr. 46.

It is fair to state

that Alcoa’s involvement in and commitment to safety is extensive. Delgado

explained that as the miners’ rep, he and others on related committees met

daily with safety and health management. Tr. 44. The committees tried to have a

person from each of the four crews.

Delgado added,

They had the

DSC coach there for the area and then you had salary people, which would be

superintendents, safety and health coordinators for the area, process area

supervisors. Everybody was involved in that area meeting. And then we also have

had a plant-wide departmental safety committee, which consisted of myself, Mr.

McNary, Mr. Luis Medina, who was our scope representative.

Tr. 45.

In fact, Delgado

and Medina shared an office. Id. Medina “was part of the meeting along

with the management lead team, which would be the plant manager, all the

superintendents of the area, a human resource person was in the meeting.” Tr.

45. Delgado was not the only miners’ rep; the plant had a miners’ rep in every

area, and he had a backup rep, the “Number 2” rep, who was Mr. McNary. McNary

would act in Delgado’s place if he was away. McNary was also a miners’ rep in

the digestion area. Tr. 50.

In sum, Delgado is

still in I&E, the MSHA rep for the plant, the lead instructor for the

emergency response team, and vice president of the union. Tr. 46. Presently the

plant is not producing alumina. When it was active, some 500 hourly employees

and about 200 salaried employees worked there, but now there are about 30

hourly employees and 18 to 20 salaried people. Tr. 49-50.

Turning to the date

of the incident in question, January 8, 2014, Delgado was accompanying an MSHA

inspector, Brett Barrick, who was at the plant because of a complaint regarding

a urinal in the mine’s training facility. On their way back from viewing the

urinal issue, they observed an ambulance at the digestion area. This area was a

concern because six months earlier, there was a serious injury to an employee,

Mike Brown. Tr. 52. Arriving at the area, Delgado saw McNary and Emig in the

alleyway and other employees suited up in Tychem Suits. Tr. 53. As he recounted

it, Delgado stated that when he approached “Mr. Emig was telling Mr. McNary in

an aggressive manner, ‘I will have you removed as MSHA rep. I will have you

removed from digestion, and I will have you removed from this plant.’” [2] Tr. 53.

Delgado continued

with his version of the events, stating,

at that point,

I looked at him and I said -- and I got kind of in between them. I said, ‘You're

not going to remove anybody from anywhere. What's going on?’ Emig then said,

‘Well, I'm done with him.’ And he's pointing at Mr. McNary. And Mr. McNary

says, ‘So you're done with me, Steve [Emig]? So you're done with me?’ And Steve

says, ‘I'm done with you for now.’

Id .

Accordingly,

according to Delgado’s recounting, Emig virtually immediately had moved back

from his words that he was “done with” McNary.

Delgado continued,

[s]o at that

point I told Kevin McNary . . . to go ahead and go stand over [ ] with the

other employees, okay, that I will have [sic] handle the situation. And I looked

at Mr. Emig and I said, ‘What's going on? Why do we have an ambulance over

here? [3]

What's going on?’ And we go over to the area -- the L5 area to -- to look at the

situation closer and the packing-on [the] valve is blowing out. It's blowing

out pretty good. You see a bunch of heavy steam around the area. It’s a very

dangerous area because it's high pressure and high temperature. [4] So Mr. Emig says, ‘We

need to access that area because we've got to get that valve isolated so we can

get the pressure off of them and change the packing.’ And I looked at him, I

said, ‘We're not sending anybody in there.’ I said, ‘It's too dangerous.’ I

said, ‘What are the other options other than sending people in there?’ And he

says, ‘The only other option is shut the unit down.’ And I said, ‘Well, we're

not -- we're going to shut the unit down ‘cause we’re not going to send people

in there.’ And he says, ‘No, we're not going to shut the unit down. That's not

an option right now. We have to access this area.’ So at that time [MSHA

inspector] Barrick, I guess, is standing behind me. . . . I believe he’s, the

whole time, just listening. He hasn't intervened yet. And me and Mr. Emig were

kind of getting into an argument about shutting the unit down because he's

clearly stating that that’s not an option, that we have to do something else

and get in there. And I’m arguing with him, ‘No, we're not. We’re not sending

anybody in there. It’s too dangerous.’

Tr. 54-55.

The Court notes

that, in contradistinction to McNary’s behavior, as described later herein,

Delgado did raise his safety concerns directly to Emig. Further, and

illuminating in the Court’s view, Delgado made no claim that Emig interfered

with him. Only McNary makes that claim.

Delgado continued,

[s]o Mr.

Barrick, I guess, finally had enough and he intervened. And he looked directly

at Mr. Emig and he said, “When are you going to get it? At what point are y’all

going to get it? That unit right there doesn't mean nothing. Those people

you've got standing over there suited up in suits, that's what means

something.” And then he looks at Mr. Emig and he says, “Six months ago, we just

got somebody seriously injured over here. What are you guys doing?” And he's

pretty hot. He's hollering, okay. So at that point Ms. Grones and Mr. Medina

walk up. They could have already been standing there while Mr. Barrick was

talking but that's when I noticed them, okay. And we all kind of backed up and

Mr. Barrick, I believe, took over the situation at that point. I think he

issued a    k order, which meant that there wasn't going to be anything going

on in there until he was okay with it. Okay. So we stepped back and we talked

about a plan of action on how to enter that area safely, and there was all

kinds of things brought up. And I believe Mr. Medina is the one that brought up

a company called Team Industries who specialize in that kind of thing, okay.

They have other type of material, injectable packing, clamps that they can put

on, other things that they can do to mitigate that situation. That way, our

employees could get in there and do the job safely. That was brought up. The

fact of bringing the unit down was brought up. So we kind of all got together

and regrouped to get a plan together on how to mitigate the situation but the

miners were withdrawn from that area.

Tr. 55-56.

The Court further

notes that Delgado, unlike McNary, engaged in a safety dialogue and otherwise

behaved in the designed, appropriate, manner. It is also noted that Emig

behaved in a like manner. As just alluded to, Emig’s behavior is instructive in

understanding, within the totality of the circumstances, his momentary

expression of exasperation with McNary. Last, it is noted that Emig’s outburst

was unique, expressed only to McNary.

According to

Delgado, McNary did not re-engage his conversation with Emig. Tr. 56. Asked how

he concluded that Emig was speaking to McNary in an aggressive manner, Delgado

stated that Emig was pointing at McNary and his voice was elevated and one

could tell by Emig’s face that he was very upset. Tr. 56. It is worth

re-emphasizing that, with Delgado behaving professionally and engaging in the

robust debate that Alcoa management and employees utilized when disputes arose,

Delgado experienced no similar behavior from Emig. Both were comporting

themselves appropriately – Delgado was expressing his safety concerns to Emig

and interacting about the best approach to deal with the incident. [5]

It was Delgado’s

view that, other than sending operators to the problem area, the only other

option was to shut the unit down. “Operators,” in this context, refers to a

miner, not the mine operator. Then a process would need to be followed: locking

it out; draining the unit; and replacing the packing. Tr. 59. He also expressed

that if the repairs are done expeditiously, that is, they are accomplished

before the unit’s temperature has dropped, one can then start the unit back up.

59-60. Because of his view that there was an unsafe risk to employees in having

them go in and try to fix it, the only realistic option from his perspective

was to shut the unit down. Tr. 60. While this view of Delgado’s is interesting, [6] it is not

part of the totality of the circumstances – those circumstances being whether

Emig interfered with McNary’s rights.

Following the

incident, there was a formal investigation in order to determine what happened

and to prevent a recurrence. Tr. 68. The investigation determined that the

tarps did not hold; rather, they blew off. Tr. 69. While one photo showed the

tarp on the valve, that was taken after the pressure had been relieved. Id.

In terms of

learning, through the investigation, who placed the tarps on the valve, Delgado

stated that some of the

senior

operators went in and tried to close [7]

the valve off and isolate the valve. And they used these tarps that they threw

over the packing leak and they were unsuccessful because the pressure was too

much and the heat was too much and there was too much steam they couldn't see

and it actually blew the tarp off.

Tr. 70.

The Court notes

that in this description Delgado did not claim that Emig sent the

operators in to close the valves.

Delgado also spoke

to the investigation’s remarks about Emig, stating that “Emig was there on

scene, he was witnessing what was going on. He didn't pull the people out .

They pulled themselves out because it was too much pressure, but he did see and

witness what was happening.” Tr. 70. Again, it is noted that Delgado did not

claim that Emig sent the operators in. Rather, his complaint was that Emig did

not pull them out. Delgado then added, “And you know, there's a little

intimidation factor there, okay. It happens all the time at Alcoa.” Id . He

asserted that “[w]hen you have a superintendent out there standing and looking

at you, even though he didn't direct you to go into

the area , [but] he's not telling you to get out of the area , so

there's a little intimidation factor. [8]

Tr. 70-71 (emphasis added). The Court again notes it should not be lost that,

while Delgado was talking about his claim of an “intimidation factor,” he

conceded that Emig didn't direct the operators to go into the area. Clearly,

Delgado, unable to state that Emig ordered miners into the area, was inferring

that Emig’s presence indirectly prompted the operators to go in, a suggestion

for which there is no support.

Delgado was then

directed to Exhibits P 3 and P 4, which he identified as the MSHA citations [9]

issued to Alcoa. Tr. 71. The Court then noted that the citations [that is, the

orders ] were not going to be tried in this proceeding, as they were beyond

the scope of this matter. Tr. 71. It is the Court’s view that the issuance of

citations or orders cannot be a substitute for establishing interference. Such

an approach would amount to determining interference by association. That kind

of an emotional appeal has no place in examining the totality of the

circumstances. [10]

Delgado was also asked

about the demeanor of the workers when he arrived at the scene and he obliged,

expressing that “they looked like they were glad to see [him] there, but they

looked like they didn't want to go in, they looked scared. Okay. You could see

it in their eyes, all right. They just didn't -- it looked like they didn't

want to have no part of that.” Tr. 74-75. In a similar vein to the distraction

of whether citations were issued, Delgado’s being asked about the demeanor of

the workers, is at odds with the scope of the analysis under the totality test.

Another approach

used by the Complainant to establish his interference claim was through

character assassination of Emig. Delgado stated that he had prior instances of

dealing with Emig on plant safety issues. In this regard, he stated that during

walk-throughs, upon identifying hazards, on “just about [ ] every occasion”

when such matters were raised to Emig, there would be a confrontation, meaning

an argument. Tr. 75. He asserted that Emig “didn't like to shut down equipment

to fix the leaks, okay, to fix the holes in piping, to fix the packing leaks.” Tr.

75. Delgado, it is fair to state, did not have good things to say about Emig. He

asserted that Emig would “get heated pretty quick,” that “he didn’t have a

middle,” and that he “was zero to a hundred.” Tr. 76.

The Court would

comment that this is an interesting claim by Delgado, as he made no claim of

Emig going from zero to a hundred when the two of them were discussing the

matter involved in this case. Further, to put his claim about Emig’s alleged

temperament in context, Delgado agreed that, on both sides , voices were

raised during disagreements at safety meetings and he allowed that everyone

tried to “stay professional” during those meetings. Tr. 76-77. Trying to draw a

distinction between this incident and the safety meetings, Delgado asserted

that no hourly employee was ever threatened in the meetings, nor threatened

with removal as a miners’ rep, nor threatened with removal from their

department, nor removal from the plant. Tr. 77. In the Court’s view, Delgado’s

acknowledgement about the conduct of meetings underscores that the focus of

this decision must be upon the events leading up to Emig’s words and the

determination of what those words were and the context in which they were

uttered and how, under the totality of those circumstances, a reasonable miner

would have taken them. Thus, the Court finds that the alleged prior history of

Emig when dealing with other disputes is both seriously questionable and, in

any event, not properly part of the totality of the circumstances in this claim

of interference.

The direct

examination completed, the Court asked some questions of Delgado, inquiring how

common an instance it was at the plant, wherever these valves were located, to

have a blow out and the need for repair. Delgado responded that it was not very

common, as normally one could address the issue when they were just starting to

leak. Tr. 78-79. Asked to be more precise about the number of blowout

occurrences, Delgado answered that since December 2011 it had happened perhaps

five to six times. Mere leaking valves were more common. Asked if he was at the

scene during those five to six events, he responded he had not been

present on those occasions. However, a lot of times, he was part of the

investigations following those events. Tr. 80.

The Court also

inquired if the L5 area was a location where McNary would commonly be; Delgado

answered yes, as he did the PDM group, for which digestion was his area. Delgado

also confirmed that when he arrived at the scene at the time of the event in

issue here and he witnessed the exchange between Emig and McNary, that Delgado

took over and so informed McNary of that and the exchange between McNary and

Emig ended and the interaction was then between Delgado and Emig. Tr. 81.

Under

cross-examination, Respondent’s Counsel asked Delgado if, when he arrived at

the scene on January 8, 2014, he began engaging with Emig and others about how

to deal with the situation. Delgado stated that first he interacted with Emig,

and then Inspector Barrick took over, and others then came to the scene and it

became a group effort. Tr. 82. Kelly Grones was a part of that group effort. Id .

Delgado stated that he learned only later , during the subsequent

investigation of this matter, that Grones was called to the scene after McNary

called Luis Medina and asked him to get her there. Tr. 83. Delgado did not

know that Emig had also called Grones. Subsequently there was a discussion,

with him, Grones, and Emig involved. He agreed that the discussion involved how

to best deal with the situation and that such a discussion was the procedure

that was to be employed. Tr. 83-84. He also agreed that there were different

ways  to address the situation, but he did not view all of ways as necessarily

being safe. Tr. 84.     For example, throwing a tarp on the upset was

identified by Delgado as a non-safe approach. Id . However, Delgado

agreed that none of the miners told him that Emig directed them to use the

tarp-throwing approach. Id .

When asked if he

learned that Emig in fact pulled the workers out of the area when he saw them

in it, Delgado’s memory failed him as he responded that he was “not sure on

that.” Tr. 84. However, Delgado agreed that when he arrived at the scene, the

workers were out of the line of fire. Tr. 84. Therefore, importantly in the

Court’s estimation, Delgado agreed that he wasn’t present to see what Emig did,

nor what the miners did . Tr. 85. Instead, Delgado conceded that his

knowledge was based on talking with people during the investigation phase. Tr.

85. However, though no one claimed that Emig told them to go in, Delgado

replied that no one stated that Emig told them to get out either. Id .

Delgado repeated his unsupported claim that the workers were “pretty

intimidated” by Emig being present. Tr. 85. Against that claim of worker

intimidation, Delgado then conceded that he has had many, many conversations

with Alcoa workers “about their right to refuse to do something that they think

is unsafe.” Id . Though he made that admission, he insisted that

despite Alcoa’s policy, workers still are hesitant that speaking up may work

against them. Tr. 86.

Returning to the

subject of how to deal with the problem that existed, Delgado agreed that there

were options besides using a tarp. Tr. 86. It was his view that the best option

was to shut the unit down and he agreed there was discussion about that option.

He did not agree with the assertion that shutting down a unit and then starting

it up again creates increased safety risks. Tr. 87. Instead, it was his view

that while it involves “a lot of extra work” and “could take more time,” he

didn’t know, that is, he did not believe, there were extra risks, if it’s done

correctly. Tr. 87. It was his view that the motives opposing shutting down were

time and production. Tr. 87. Respondent’s Counsel then asked if Delgado would

agree “that if a unit -- the whole unit has to be shut down for a long period

of time, there is an increased risk when you have to start up again,” and

Delgado responded that he agreed with that. Tr. 88. Therefore, with that

concession, Delgado agreed that if Emig or Grones had concerns about that

option, there was a genuine basis for those concerns. Tr. 88.

Another option,

Delgado agreed, was to have a third-party contractor, who specialized in such

problems, brought in to deal with it. Tr. 88. Mr. Medina, who is the scope

representative and another full-time MSHA representative, along with Delgado,

Emig and Grones, was part of the discussion for that option. Tr. 88-89. Delgado

also acknowledged that Medina, like himself, was another paid-by-Alcoa,

full-time, 40 hours a week, safety person. Tr. 89.

Still another

option was simply to wait and see if things calmed down. In fact, that is what

happened, and Delgado agreed that the upset died out. Tr. 90. Delgado also

conceded that three or four hours later it became safe to enter the scene and

repair the problem. Tr. 90. However, Delgado added that certain steps were

required before it became safe to enter the area. He admitted both that he was comfortable

with the decision to see if things calmed down and was a party to the decision

to not shut it down. Id . Thus, the Court observes, apart from

McNary’s interaction with Emig, Alcoa’s designed miner/management process for

resolving issues worked – Delgado was an active player in that process and he

was a participant in the decision to not shut the unit down. The Court finds

this is instructive in determining what actually transpired between McNary and

Emig, as Emig was a participant with Delgado immediately after his exchanges

with McNary and, there is no dispute that he comported himself professionally

with Delgado.

Delgado also

conceded that there was some history between him and Emig; in the past they had

argued robustly about how to deal with particular situations. Tr. 91. Delgado

did not feel that Emig listened to him or at least that they weren’t agreeing. Id .

However, in this instance, the instance the Court must analyze, a time out

was then called and Grones, Emig, Medina, Delgado and others then talked about

the situation and they reached a solution. Tr. 92.

Although Delgado

reaffirmed that, upon approaching the site, the first thing he heard was Emig’s

words – that Emig would have McNary removed as a rep and from the plant, Delgado

agreed that he did not know what had transpired before he arrived, and

therefore could not know what had prompted Emig to say those things . Tr.

93. Delgado also agreed that Emig, as the superintendent of digestion, was in

charge of the area in issue. Tr. 93. Delgado further admitted that MSHA would

view Emig as the operator’s agent with responsibility for the area and, if

something went wrong, the blame would have been on Emig’s shoulders. Id .

Significantly, Delgado then agreed that, if McNary had told Emig, that Emig

couldn’t tell him what to do, this would have been a reason for Emig to have

been upset with McNary. Tr. 93-94.

Probing further on

Emig’s and McNary’s interaction, Delgado agreed that while miners have a right

to point out things they believe are unsafe and they have a right to refuse to

do things they believe are unsafe, on the other side of the equation, an Alcoa

manager would have the right to remove a worker from an area if he determined

that the person was being disruptive. Tr. 94. However, Delgado added that one’s

definition of “disruptive” is important. Id .  

Respondent’s

Counsel, correctly in the Court’s view, described the worker/management

relationship in such circumstances as a “balancing act.” Tr. 94. Again, it was

pointed out that Delgado had no knowledge of what preceded his hearing Emig’s

words to McNary. Delgado also agreed that at that moment, Emig had “a lot on

his hands.” Id .

Respondent’s

Counsel asked whether in such a situation, with “serious stuff” going on, the

focus should be on dealing with the stuff, as opposed to an employee

complaining about the manager’s authority. Tr. 95. Delgado responded “yes.” Tr.

95.

Illustrative of

Alcoa’s attitude towards safety, Delgado agreed that “Alcoa has never objected

to paying for more than one to accompany an MSHA inspector when he's doing [an]

inspection.” Tr. 99.

Delgado agreed that

McNary was second-in-command as a miners’ rep to accompanying an MSHA

inspector. Tr. 100. In selecting McNary as second-in-command, Delgado conceded

that McNary was not someone who would be intimidated easily and was comfortable

in speaking up. Tr. 100-101. Consistent with that view, Delgado acknowledged

that McNary would not be intimidated by Grones, Emig, or the plant manager, Ben

Cars. Tr. 101. Delgado also agreed that he was not intimidated to visit the

plant manager and complain about safety issues. Tr. 102. Thus, the Court

observes that Delgado’s own words on the subject of intimidation by

Alcoa management contradicted themselves.

Further, of relevance

in the Court’s estimation in understanding the context of this matter, Delgado

informed that, at the twice monthly safety meetings, McNary and everyone

else felt comfortable speaking up . Tr. 104. Emig was present at such

meetings. Id . These admissions by Delgado also undercut his

earlier claim of employees being intimidated.

Delgado agreed that

when he arrived at the scene “there was tension between Mr. Emig and Mr.

McNary.” Tr. 104. Delgado made the decision that it was better for him to

handle the situation than McNary, but added, “[e]specially when Mr. Emig

hollered at me, I’m done with [McNary].” Tr. 104. However, Delgado also agreed

that his biggest concern at that moment was the safety of the miners and

accordingly he wanted to talk with Emig about the danger he was observing. Tr.

104-105.

When asked if he

recalled Emig offered to remove himself from the situation, Delgado responded

that he did not remember that. However, Delgado acknowledged that Emig could

have said that, but that he simply did not remember it. Tr. 105.

The investigation

regarding the January 2014 incident was a joint company/union investigation. Tr.

109. Delgado never restrained McNary in this matter; instead he asked him to

move to a nearby location and McNary did that, without incident. Tr. 110. Delgado

responded “no,” when asked if, prior to this incident he had never heard Emig

threaten to remove a miners’ rep from their role, or from the plant. Tr.

110-11. Thus, the Court notes that Delgado conceded Emig had never made such a

threat prior to this incident. Further, Delgado admitted that Emig never

asserted that it was insufficient for McNary to move where Delgado directed

him; that is, Emig never uttered, “no, he [McNary] needs to get out of here.” Tr.

112. Nor did Emig assert to Delgado that McNary needed to get out of the plant.

In fact, as discussed herein, in the Court’s view, McNary seemed to be goading

Emig into saying something more, asking if Emig was done with him. Emig

responded that he was done with him for now. Id .

Following Delgado,

the Complainant, Michael Kevin McNary testified. Tr. 115. At the time of his

testimony in this proceeding he was not employed and his last employment was

with Alcoa at the Point Comfort plant. In June 2016, he was among the large

majority of employees that were laid off from the plant. [11] Tr. 117. He worked at

the Point Comfort plant for about eight years. Id . During his employment

he had always been an hourly employee. Tr. 120.

When he started

working at the plant, McNary was an “area operator,” and was classified as

such, working in the preventative maintenance group, known as “PDM.” Tr. 118. McNary

described his job then as one who worked the valves, opening and closing them,

as part of controlling the process. Id . He agreed with Delgado’s earlier

testimony, which testimony, as the Complainant and therefore not sequestered,

he heard, about “the process, digestion, clarification, precipitation,

calcination.” Tr. 118-19. During his employment, he worked in each of those

processes, except for calcination. Tr. 119. He estimated spending about two to

three years in each of those departments. Tr. 120.

At the time of the

incident in issue, he had been in the digestion department for about three

years. Tr. 120. He added some description to his “area operator” title, stating

while

classified as

an area operator [he was] working the job of gland manager and gland manager [12] is the

individuals [sic] that goes out into the area and do the maintenance on pumps,

check out the pumps, make sure everything is going good with the pumps,

troubleshoot the pumps, like a pump specialist pretty much.

Tr. 120.  

In his role as

gland manager, he would make daily rounds [13] ,

“troubleshoot pumps that had problems. We'd go out and we identified bad actors

[with bad actors referring to machinery, not personnel]. A bad actor is a pump

that is continuously having problems.” Tr. 121-22. This was, as he described

it, all part of maintenance, “keeping the pumps running well.” Tr. 122.

McNary is a union

member, with the United Steel Workers, and in that role he was a worker’s

compensation representative for individuals injured on the job. Tr. 122. He was

also a MSHA rep. Tr. 123. The terms “miners rep” and “MSHA rep” are used

synonymously at the plant. Tr. 123. He was a miners’ rep “plant-wide,” as the

“number 2 in charge,” after Delgado. Tr. 125. It is fair to state that McNary’s

duties as the miners’ rep and his involvement in investigations and Department

Health and Safety meetings composed the wealth of his work time.

McNary also

informed that, in December 2011, he was injured on the job in the clarification

department when standing next to a drain valve. That valve failed, spraying hot

slurry on him. Tr. 127-28. He received burns on 30% of his head and his whole

right side. The injuries caused him to be hospitalized for a month. Tr. 129. In

total, it took him slightly more than a year to recover before he returned to

work. Id . It was after that return to work that he became a

miners rep. Id .

The January 8, 2014 Incident

As noted, the

January 8, 2014 incident, which is the subject of this litigation, occurred

about eight (8) months after McNary became a miners’ rep. Tr. 131. At that time

McNary’s job title was gland manager. On that day, as part of his duties, he

was checking pumps and making adjustments on them. In the course of that work,

he came to the L5 area, where there are some seven or eight large pumps. It was

then that he saw steam, that is to say, slurry, spraying out everywhere. At

that time he also saw supervisor Donnie Broussard and Joe Nevlud, a contractor.

Those two individuals were looking at the valve which McNary had observed

spewing and blowing out. Broussard and Nevlud exchanged words with one another

and then walked back towards the office area. Tr. 133. Then, McNary saw Marty

Montes and Robert Serna walking towards him. Serna, McNary informed, is a 6A

operator and an hourly employee. As a reference, an 8A is a superior, or main,

operator. Tr. 133-34. Montes is also an hourly employee. Tr. 134. The two

approached McNary who observed that both men were covered in slurry. Id .

Montes told McNary that a valve went out and that it continued to get

worse, to the point that he thought they would need to shut the unit down. Id .

McNary added that Serna told him he didn’t want to go back over there. Tr.134. The

Court observes that, at that point, based upon McNary’s own testimony regarding

the information from Montes and Serna, McNary could’ve invoked a stop job

order.

Next, McNary got a

call from Miguel Gonzalez. Gonzalez is an hourly employee that worked

temporarily as a supervisor. Tr. 135. While McNary, according to his

recounting, continued to just observe the situation, Gonzalez arrived

and then Donnie Broussard with Steve Emig arrived right after Gonzalez. Id .

At that point, McNary stated, Broussard, Gonzalez, and Emig began handing

out Tychem suits to the operator. [14]

Tr. 136. Then, Delton Luhn, a general mechanic, and another MSHA miners’ rep,

arrived at the scene, and asked McNary what was occurring.

Including Emig, and

McNary, and with Broussard, Gonzalez, and Luhn also present, all there with

McNary, when McNary was asked by Luhn about the situation, his response was “ Man,

I don't know. I'm just looking .” Tr. 136-37 (emphasis added). While he told

Luhn that a “valve was going out and there’s a lot of people moving around,” he

added “but just basically ‘I'm just watching, just observing.’” Tr. 138. Thus,

McNary stated that his role was passive. [15]

At that point

McNary stated that he observed Emig assisting Marty Montes putting on a Tyvech

suit and that Emig, who brought Montes with him, approached McNary and Luhn,

asking if they had any tape. Tr. 138. Both responded that they had no tape but

then McNary asked Emig why he needed tape. Tr. 139. Emig responded, according

to McNary, that he needed the tape for Montes’ wrist. Id . Emig

then asked McNary if he would get some tape from the tool room. McNary thought

to himself, “ I better go get this tape .” Id . (emphasis added).  McNary

acknowledged that Emig had the authority to give such directions to him. Tr.

139. The Court finds McNary’s testimony to be dubious on this claim – that he

thought, “I better go get this tape,” as he would later claim that the search

for tape was a ruse on Emig’s part to remove him from the area. The Court notes

that if McNary believed Emig’s real purpose was to get him away from the area,

he then had his second opportunity to invoke a stop job directly to Emig.

According to his

testimony, McNary then went to the tool room, but there was no tape there. However,

as he departed the tool room, he thought “this is a bad situation . . . those

guys need[ ] some help over there.” Tr. 140. The Court notes that, by his own

testimony, when McNary formulated this thought, he did so without any new

information . This underscores that he passed up the opportunity to invoke

the stop job when directly before Emig.

Acting upon his

claim of his then-arrived-upon concern, McNary decided he needed to have Kelly

Grones involved. To that end, he asked Luis Medina to request for “Kelly

[Grones] to come over to the L5 area as quick as she could.” Tr. 140. He sought

Ms. Grones’ involvement because she is an environmental health and safety

(“EHS”) manager. As McNary saw it, he determined that “she can help us assess

the situation and come to a decision and help come to a formal decision without

putting the miners at risk, without putting the operators at risk.” Tr. 140.

In the Court’s

view, McNary’s action, surreptitiously seeking to bring in Grones and therefor

attempting, covertly, to usurp Emig’s authority, was improper. McNary’s actions were an attempt to override Emig. It was

clear that McNary had determined that Grones had to take over the

situation, expressing that Grones,

was a very critical thinker and she had empathy and

compassion for the operators and she made the decisions for us. That tended to

change a little after she become [sic] safety manager, but I was still hoping

that she had that compassion to make the right decision when she did come out

there.

Tr. 141.

Clearly, McNary was expressing that the traits he believed

Grones might still possess were not Emig’s traits. Although, the Court

acknowledges that McNary could believe whatever he wished regarding the traits

of Emig or Grones, he still acted outside of his authority by attempting to

direct how management should address the problem, by his deciding which

management official should be in control.

Upon returning to the L5 area, McNary described Emig as

“standing off by himself. He was tending -- seems like he was walking in

circles.” Tr. 142. McNary then walked up to Emig and gestured with his head to

signal for Emig to “come over here.” Tr. 143. Emig then acceded to McNary’s

gesture and began to follow McNary. They walked, according to McNary, “a pretty

good distance away” so that they could speak away from the noise in the pump

area. Tr. 144. Delton Luhn, who was right behind McNary, joined this meeting, a

meeting which was initiated by McNary. Arriving at a location where it was

quiet enough to speak, McNary informed Emig that he

called Kelly [Grones] and [she] should be on her way to

help us assess the situation.” And [Emig], he looked at [McNary], [and] said,

‘You did what?’ And I started to explain it to him again. And [Emig] says, ‘You

should not have called anyone. This is my department. I direct the work force.

I make the decisions.’ [McNary then] said, ‘Well, Steve [Emig],’ . . . Why did

you direct those operators into that hot slurry -- that hot slurry after you

sent me off to get tape?’ [Emig] said, ‘I didn't send them in there.’ [McNary

then] said, ‘Well, how did they get in there?’

Tr. 145.  

McNary continued his recounting of the event, stating that

he asked Emig,

‘How did they get in there?’ [McNary then] said, ‘they’ve

been in there already.’ And [Emig] said, ‘Well, they volunteered.’ Tr. 146. McNary

then responded to Emig’s remark, stating, ‘Well, you watched them go in there.

You didn't stop them?’ Again, according to McNary’s recounting, Emig then

stated that he had ‘called them out.’

Tr. 146.  

McNary

challenged Emig’s remark, responding “You [i.e. Emig], called them out after

they went in there. You helped them -- you helped them suit up. You had

intentions of them to go in there. If you didn't have intentions of them going

in there, you wouldn't have helped them suit up.”   Id .

The Court also considers McNary’s words towards Emig to

have been entirely inappropriate. McNary, apart from directing Emig to follow

him, then engaged in what was essentially a dressing down by McNary’s

assertions of what he claimed Emig had done. Thus, McNary was not

directly making safety complaints to Emig, an option he knew about and could

have invoked. Instead, he was challenging, and disputing, Emig’s responses.

By McNary’s retelling of the interaction, Emig responded

that he didn’t like McNary’s actions, informing McNary, using those words, that

he “didn’t like McNary’s actions,” and adding the remark that McNary “shouldn't

be involved in these matters.” Tr. 146. McNary challenged that statement too,

questioning Emig’s assertion, by remarking, “I shouldn't be involved? I should

be involved. I’m the MSHA rep and I’m concerned for their safety.” Id . Because

the sequence of the events is important, the Court notes that, even by McNary’s

version of the events, during his testimony at the hearing, this was the

first moment in time when McNary expressed a safety concern to Emig .  

Next, according to McNary’s testimony, Emig then said

“Well, I will remove you as MSHA rep. [sic] I will remove you from this

department, and I will remove you from this plant.” Tr. 146. It was McNary’s

testimony that when Emig made those remarks, Carlos Delgado and MSHA inspector

Brett Barrick were present. Tr. 146. McNary then turned around and told Delgado

and Barrick that Emig had just threatened him. McNary stated, effectively, that

he was stunned by Emig’s words, asserting “at that point, you know, my head was

kind of reeling. You know, it was kind of like ‘I know this didn’t just happen.

I just -- I just got threatened. It's not supposed to happen.’” Tr. 147. McNary

interpreted that Emig’s words meant “[a] termination automatically.” Id .

McNary’s testimony continued, stating that Delgado, Barrick

and Emig then walked off about ten or fifteen feet from him. Tr. 148. At that

point McNary could not hear completely what the three were saying, as he was

able to understand only “bits and pieces” of the conversation. However, McNary

apparently heard enough “bits and pieces” of the conversation for him to walk

over to the three and assert “Steve [Emig], you know it didn't happen that way.

Why don't you tell them you sent those operators in that slurry while you sent

me away to get tape.” Tr. 149. After that remark by McNary to Emig, by McNary’s

account, Emig then told him “Kevin [McNary] I’m done with you.” Tr. 149.

At this point, McNary, apparently his head no longer

reeling, regained his bearings, as he replied to Emig, “You're done with me or

you're done with me for good?” Id . To which, again by McNary’s

accounting, Emig said, “No, just for now.” Id . At that point, the

two had no further conversations. Thus, in the Court’s view, even accepting for

the moment the veracity of McNary’s testimony, something which the Court

ultimately declines to do, McNary admitted that Emig had walked back his

earlier remark. Therefore, by McNary’s own accounting, Emig had almost

immediately walked back his improper remark, whatever it exactly was.

McNary’s attorney, describing the exchanges between McNary

and Emig as “interaction,” asked McNary if he ever told Emig that he, McNary,

was “in charge here. You're [i.e. Emig] not in charge.” McNary denied making

those remarks. Tr. 149. Asked again, but with a more expansive question,

whether he ever told “Emig in any way that he wasn't in charge of the

situation,” McNary responded, “[n]o.” Tr. 150. Nor, McNary asserted, did he

ever tell Emig that he [McNary] was “conducting an investigation” or that “This

is [McNary’s] investigation.” Id . Further, McNary denied telling Emig

that Emig doesn’t direct the work force, that he, McNary, directs the work

force. Tr. 150. McNary also denied that he told Emig that he “didn't have to

listen to what [Emig] said.” Tr. 151.

Instead, McNary stated, “[t]he only thing I told [Emig] was

Kelly [Grones] was coming out there to help him assess the situation and he

blew up.” Tr. 150. Thus, again by McNary’s testimony, he admitted that he had done

an end run around Emig, an act that was beyond his charter as a miners’ rep and

as a miner. Further, McNary’s earlier testimony reveals that he sought out

Grones, not to help Emig assess the situation, but rather to replace Emig,

because, while he also had doubts about Grones, he believed she would be the

more concerned person to deal with the issue. McNary also denied that Emig ever

said anything to him to the effect that he, Emig, had already contacted her. Tr.

Although McNary, per his request, hoped that Medina had

contacted Grones, he testified that he could not be sure that Medina had been

successful in reaching her. While he stated that he could not be sure if Grones

ever got the message which he directed Medina to deliver, in his next breath

McNary then stated “ But I told Steve [Emig] that she was called and

she was on her way out there .” Tr. 151 (emphasis added). The Court observes

that something does not fit with that claim. McNary, if he truly did not know

whether Medina had reached Grones, as he claimed, could not have asserted that

he told Emig that Grones was on her way.

In any event, Grones did arrive. At the time of Grones’

arrival, McNary stated that Delgado and Barrick were present, and he, McNary,

“was already walking off.” Tr. 151.    The Court would comment that McNary’s

claim that he would walk off when Grones arrived is quite odd, given his

expressed concern and the steps he took to have Grones arrive at the site of

the problem. Thus, one would think that, as he was the initiator to have Grones

come to the site, McNary would stay.

Although McNary’s Counsel asked “[h]ad anybody at the plant

in management ever told you before in discussing a safety situation that

‘This is not your business’ or ‘You shouldn't be involved in this,’” McNary

responded that he had never been in a situation like that … [it was] the first

time that [he’d] ever been in that situation with management.” Tr. 153. Thus,

McNary admitted it was more than unusual; it had never happened before. This

prompts the question what were the unique circumstances which brought this

about? As set forth below, the Court concludes that, under the totality of the

circumstances, it was McNary’s own conduct which brought about the

exchange with Emig.

The Court would note again that, in its view, it is a

mischaracterization to label McNary’s actions and statements with the words

used by his Counsel, as discussing a safety situation. McNary was not

discussing a safety situation. Rather, he was making assertions about Emig’s

conduct and attempting to orchestrate which management official would control

the event. This was far beyond his legitimate purview.

McNary also stated that no one had to physically restrain

him during this event and he denied swearing or cussing. Tr. 153. McNary’s

Counsel asked about Delton Luhn and McNary confirmed that Luhn died a few

months before this hearing. Tr. 154. McNary was presented with Complainant’s

Exhibit P 5, an affidavit made by Luhn. McNary stated that he and Luhn “put

these affidavits together,” as McNary knew Luhn was a witness who “heard

everything … from the beginning to the end.” Tr. 155. Thus, McNary stated that

Luhn was present, along with Delgado and Emig, during the interaction which is

the subject of this proceeding. Tr. 155. McNary identified the affidavit as

bearing Luhn’s signature. The affidavit was then sent to the Court and this

occurred at a time before McNary had legal counsel. Tr. 157. The Court comments

upon this affidavit below.

Respondent, Alcoa’s, cross-examination began with Luhn’s

affidavit, Ex. P 5. McNary stated that he and Luhn drafted the affidavit

together, along with the secretary at the union office. Tr. 158. Alcoa’s

Counsel noted that Delgado prepared an “almost identical affidavit,” and McNary

acknowledged that to be true, advising that he, McNary, Delgado, and the union

secretary did Delgado’s affidavit too. Tr. 159. Presenting R’s Ex. 17 to him,

McNary acknowledged that was the affidavit they prepared with Delgado. Tr. 159.

Though not certain, McNary, who noted again that he was acting pro se at that

time, believed the two affidavits were created in separate meetings, stating,

“I believe so. I’m not too sure but I know they came over two different times

because we had to talk about the -- the details about what they actually

heard and whatever, you know .” Tr. 159 (emphasis added). McNary did state

that Delgado was not present when Luhn and McNary prepared the Luhn affidavit

and, similarly, Luhn was not present when Delgado and McNary prepared the

Delgado affidavit. McNary could not recall which affidavit was created first. He

also could not state whether the language from the first affidavit was used for

the second one. Tr. 161.

The Court has reviewed the Luhn and Delgado affidavits. In

addition to the fact that they bear the same issuance date, it is true that

they largely mimic one another and therefore have an air of being rehearsed. Both

affidavits state “Said operator Agent Steve Emig, in a loud aggressive tone did

threaten to terminate Mr. McNary from the Alcoa Alumina Point Comfort Mine. Steve

Emigs [sic] demeanor and verbal communication displayed threats of reprisal,

intimidation, discrimination, and interference with the miner’s statutory

rights.” Ex. P 5; Ex. R 17. The mimicking also represents the substance of

Luhn’s and Delgado’s claims. Beyond that, the Court observes that it has the

hearing testimony of Delgado, which is more valuable than his affidavit in

terms of evaluating the totality of the circumstances. Luhn, now deceased, was

not subject to examination of his claim by Alcoa. Perhaps of greatest concern,

McNary’s testimony about the creation of the affidavits is simply not credible,

as one does not by mere happenstance arrive at the common language shared in

them. Finally, drawing back from the words in the affidavits, though there are

differences in exactly was what said, there is no dispute that McNary and Emig

had words with one another. The key is the Court’s determination of what words

were exchanged and how those should be understood within the totality of the

circumstances.

Directing McNary to January 8, 2014, McNary confirmed that his

first conversation with Emig involving this matter , was when he gestured

with his head for Emig to come over to McNary was located. Tr. 163. McNary then

agreed that the first thing he told Emig was that he had called Kelly

Grones. Id . McNary next agreed that Emig’s response was “You did

what? You shouldn't have called anyone.” Id . McNary then agreed

that Emig seemed very upset that he had called Grones. Id . However,

McNary would not agree that Emig was upset about McNary’s act of calling

Grones, stating that, as he could not read Emig’s mind, he could not know that.

Tr. 163.

McNary denied that Emig told him that McNary was not

directing the work force, and denied that Emig told him “that they were, in

fact, in the process of assessing the issue to determine what to do next.” Tr.

164. McNary also denied that he told Emig that Emig could not tell him what to

do. Tr. 164-65. However, McNary acknowledged that if he had said that, Emig

would have been justified in being annoyed at him . Tr. 165.

McNary agreed that Emig was the superintendent of

digestion, and as such McNary’s supervisor. Therefore, while McNary agreed that

it would have been inappropriate for him to tell Emig that Emig couldn’t tell

him what to do, McNary denied having said that, stating, “it didn’t happen.” Tr.

165. Over the objection of McNary’s Counsel , the Court permitted Alcoa’s

Counsel to ask, if McNary had made that remark, whether Emig would have been

justified in telling McNary to get out of the area . McNary’s response was,

“[t]hat depends, Mr. Bacon. [16] I think when

– when you have a situation -- when miners’ safety and health is put in a

position and on the same token you have management that’s putting those miners

or the operators in that position, as an MSHA rep it’s not exactly my job to turn

my face and act like I’ve never seen something like that happening. But the way

you're explaining it, it didn’t ever happen that way.

Tr. 166.

The

Court then questioned whether McNary had been responsive to the question. Tr.

166. Upon review, the Court finds that McNary was not responsive.

Another attempt to get a responsive answer from McNary was

then made. McNary was asked, “if you had told him that he did not -- he

could not tell you what to do, would he have been in his right, in your mind,

to have asked you to leave the area.” McNary responded, “Yes.” Tr.

167 (emphasis added).

McNary then confirmed that it was his belief that Emig’s

request for McNary and Luhn to get tape for the Tyvech suits was motivated to

get McNary out of the area. McNary admitted that it was Emig’s purpose was “to

keep me away from what was getting ready to happen.” [17] Tr. 167-68. However,

McNary acknowledged that Emig asked him to get the tape before McNary

later beckoned Emig to come over to speak with him, answering, “He asked for

the tape before I called him.” Tr. 168. Further, McNary admitted that at that

point he had not had any conversation with Emig “about what was going on,”

agreeing that up to that point, he was only observing. Tr. 168-69. The Court

finds that if McNary truly believed that Emig’s aim was to remove him from the

area, or that what “was getting ready to happen” was hazardous to miners, he

again had the opportunity invoke the stop job.

McNary stated that he observed that they were trying to

suit people up with Tyvech suits. Tr. 169. He agreed that once Delgado and MSHA

inspector Barrick came to the scene, those individuals were talking with Emig

about the situation, assessing it. Tr. 170-71. In fact, McNary then approached

them, interrupting their discussion, in order to tell them that he believed

Emig had sent him away in order to get the tape. [18] Tr. 170. 

When McNary was asked if, when he approached the three and

interrupted them, he said, “ He [Emig] tried to get me out of here by

going to get tape ,” McNary, in his response, took issue with the question’s

use of the term “assessing the situation,” asserting that, while he was only

able to hear bits and pieces of the trio’s conversation, it seemed

like he [Emig] was talking to them about the -- the threats

that he had just made to me. And I went to them -- it was Carlos Delgado, Brett

Barrick and Steve Emig, they were standing about 10 or 15 [the Court presumes

feet] away from me. And I told them, “Tell them about the threats you just made

after you sent me to get tape.

Tr. 171

(emphasis added).

The Court remarked that McNary had not answered the

question. Tr. 171. Alcoa’s attorney then took a different approach, inquiring

whether McNary agreed that “the most important thing at that moment was to assess

the safety of the situation.” Tr. 172. McNary responded, “I think so.” Id .

Thus, McNary agreed that at that point the greatest concern was with the upset

and keeping miners safe, remarking “[t]hat’s what the whole argument was

about.” Tr. 172. However, despite McNary’s agreement that the most important

thing at that moment was safety, he did not agree that the subject of whether

McNary had sent him on a wild goose chase was a matter that could wait. Tr.

172. Pressing the issue, Alcoa’s Counsel inquired of McNary, “You thought that

was more important to address with Mr. Delgado than the safety incident that

was occurring.” Id . McNary, relying upon the “bits and pieces” he heard,

answered

“When -- when I -- when I went back and started talking

with them, they wasn't talking about assessing the situation. They were – Steve

[Emig] was trying to explain to them that he hadn’t threatened me. That's what

they were talking about. They weren't talking about assessing the situation.

They weren’t talking about the valve. They were talking about what they had

just walked up to.

Tr.

172-73.

McNary agreed that Delgado told him to go over to where the

other operators were, and agreed that in Delgado’s testimony earlier during the

hearing he heard Delgado tell Emig that they were not going to be sending

people in. [19]

Tr. 173. When Alcoa’s Counsel submitted to McNary that, based on Delgado’s

testimony, the big issue of concern was the safety emergency they were facing,

McNary’s Counsel objected to the question because it pertained to events after

Emig’s threat to McNary. Therefore, expressly, McNary’s Counsel’s stated

point was that “ the only issue in this trial is, were the threats made and

did it violate 105(c). What happened ten minutes later, you may want to hear it

but it's really not relevant to the issue before [t]he Court .” Tr. 174

(emphasis added).

The Court understands that McNary’s Counsel would prefer to

have the issue so simply circumscribed. If accepted, it is the Court’s view

that mere utterance of the words allegedly used by Emig would, in a talismanic

manner, carry the day for McNary. Certainly, McNary’s Counsel has never

suggested that there could be any other result but interference upon such an

utterance. However, the Court explained that, in applying the “totality of the

circumstances” approach, it is looking “at events immediately prior to the

events where the alleged remarks were made by -- by Mr. Emig and to the events

afterwards. So I'm getting a … continuum.” Tr. 174.

Alcoa’s Counsel then turned to McNary’s accusation that

Emig was “directing the miners to go into the line of fire,” a characterization

to which McNary agreed. Tr. 175. McNary also agreed that Emig took offense at

McNary’s accusation. However, McNary agreed that Emig told him he “did not

direct them to go in,” but McNary did not agree that Emig informed him that he

told the miners to come out . Instead, McNary parsed the words used in

the question, stating that Emig’s statement to him was that he “ called them

out after they went in.” Tr. 175 (emphasis added). Asked whether he felt

that it was Emig’s fault that the miners were in that area, McNary responded

that “Emig was in charge of that area. He was in charge of the safety of those

miners at that time.” Tr. 175-76.

Asked if Emig really was not responsible for the miners

going in, if in fact they went in without his consent and without his control,

whether that would have been a reason for Emig to be upset with McNary’s

accusation, McNary acknowledged that would be a reason, but countered that Emig

“was already upset.” Tr. 176.

Next, McNary acknowledged that, following the incident, he

was part of the investigation into the incident. Tr. 176. In connection with

that investigation, when McNary was asked the important question whether any

of the miners told him that Emig directed them to go into the line of fire,

McNary’s Counsel objected that the question was overbroad and without a proper

foundation. That objection was overruled. Tr. 177. With the question

repeated, that is, whether “any of the miners who were there working that day

[told] [him, McNary], ‘Mr. Emig instructed me to go in,’” McNary responded, “No

one told me that that day.” Tr. 178. Very oddly, in the Court’s view, and given

McNary’s earlier answer that none of the employees told him during the

investigation that Emig had directed them to go into the slurry, when McNary’s

Counsel asked McNary on redirect if he asked anyone, as part of the

investigation, whether Emig had directed employees into the slurry, McNary

responded, “ No. I did not ask any of them that .” Tr. 185 (emphasis

added).

When asked if Delgado requested McNary to move out of the

area while he continued to talk with Emig, McNary stated that was not exactly

what happened. Instead, McNary demonstrated with a gesture that Delgado raised

his hand and moved it a little, while telling McNary to “cool off.” Tr. 178-79.

McNary did follow the instruction from Delgado, and moved away from the area

and then headed back to the breakroom to write his statement. Tr. 179.

Over objections from McNary’s Counsel, McNary answered that

he was never terminated, nor disciplined and that after the incident he

continued to work with Emig on a regular basis. Tr. 180.

On redirect, McNary affirmed that when he interrupted Emig,

Delgado, and Barrick, Emig had already threatened him. In fact, McNary stated

that Emig had just threatened him, only a matter of five to seven seconds

earlier. Tr. 183-84. As noted earlier, McNary’s “head reeling” condition did

not last long.

The Complainant having rested, the Respondent called Ms.

Kelly Grones as its first witness. Grones has a “master’s degree in business

administration, MBA and a bachelor’s degree in safety.” Tr. 191. At the time of

the hearing she was no longer working for Alcoa, her current employment being

with South Texas Electric, as a safety and health manager. That work began in

November 2015. Id . As for her employment with Alcoa, that began in

October 2012 as their environmental health and safety coordinator. Tr. 192.

Turning to the events of January 8, 2014, Grones stated

that somewhere between 8:30 and 9:00 a.m. that morning, while she was in a

production meeting, she received a call from Emig, notifying her that there was

an upset condition and that he needed some advice on “some safety things that

was going on in the area.” Tr. 193. She then left the meeting and headed to the

site of the condition. Tr. 193-94. Upon arriving she saw MSHA’s Barrick, who

was talking with Delgado and Emig. Barrick was raising his voice and screaming at

Emig. She also observed that there was a lot of steam coming off of the pumps

and she described it as “pretty messy.” Tr. 194. There were a lot of employees

gathered there too. She then approached Emig, notifying him that she was there.

According to Grones, the exchanges between Emig, Delgado and Barrick were

intense. This included Delgado stating,

You’re not sending people in there. Brett’s [Barrick] like,

‘You’re not going to send people in there because you -- you almost fucking

killed people last time,’ and really, it was very heated. And honestly, [Emig]

was very quiet which, you know, I have a lot of history with [Emig] as well.

[Emig] is -- at times, he definitely says his opinion and he's very open. He’s

very confident and he’s going to tell you if you're wrong. And he makes the

decisions in that department and he was very quiet. And I could tell that he

was really, really upset, that he -- you know, these individuals, … Delgado,

[and] Barrick were saying these mean things to him.

Tr.

195-96.

Grones stated that she did not participate in the heated

exchanges. Instead, she told them she needed to learn more about the situation.

To that end, that is, to learn from production what was going on, before making

any safety decisions, she proceeded inside and spoke to Richard Ratliff, an

engineer, and JP Strickland, the latter being the production engineer. Tr.

196-97. Grones was also aware that there was a prior such incident in the area,

and that the unit was shut down. She advised that shutting down is not a

panacea; that action brings its own set of problems. Tr. 197. Ironically, there

was no need to make a decision in the instance associated with this hearing, as

the flow stopped. Tr. 197. Had a decision been required, Grones stated that she

would have brought Delgado into that. Tr. 197-98.

Regarding MSHA’s Inspector Barrick yelling at Emig, Grones

related that the inspector asserted, “[l]ast time this occurred, you injured

Mike Brown.” Tr. 198. Brown, Grones informed, “was the individual that was hurt

in the last incident in September.” Id .

On cross-examination, Grones acknowledged that she did not

hear any conversation between Emig and McNary. Tr. 200. Therefore, she could

not testify about events prior to her arrival at the site. Id . When,

on direct, Grones referred to Emig stating that “there are things going on,

we’re discussing things,” that was her interpretation of Emig’s remark, not a

quote from him. Tr. 200. Grones did remember that Barrick and Delgado were

yelling at Emig. Tr. 200. Recapping, Grones agreed that the event which brought

her to the site involved, as expressed by McNary’s Counsel, a spewing valve

that was shooting caustic in the L5. Tr. 201.

McNary’s Counsel’s made the point on cross-examination that

Grones came on the scene after the exchange between McNary and Emig and that

this was also after the attempt to control the valve by putting a tarp over it.

Tr. 206. As discussed below, the Court does not accept such a narrow

construction of the totality of the circumstances. After all, McNary’s Counsel

had no problem inserting into the record citations that were issued by MSHA

after the exchange between McNary and Emig, nor with bringing up the prior burn

incident. Unsurprisingly, the perspective of what should be included within the

totality will differ between the advocates.

Grones stated that the inspector, Barrick, was asserting

“mean things” to Emig, accusing him of nearly killing Mike Brown in a prior

incident. Tr. 202. Grones agreed that Brown’s injuries were significant, involving

significant burns over 60% of his body due to spewing hot caustic material. Tr.

203. Grones agreed that it would not be a good idea to send an employee into

such a condition without being outfitted with PPE. Tr. 204. As to whether a

Tychem suit would provide protection in that environment, Grones stated it

would depend on how that suit was rated. Tr. 205. On the day involved with this

litigation, Grones did not recall seeing any employee in either a Tyvech or a

Tychem suit. Tr. 206. Grones did agree that while Alcoa could make a decision

as to how to deal with the event at hand, the MSHA Inspector, Barrick, could

overrule that decision. Tr. 206. However, she could not recall if Barrick

issued such an order that day. Tr. 207. Grones also agreed that the Inspector

accused Emig of almost getting an employee killed in a similar situation. Tr.

207. While she admitted that Emig never denied the inspector’s accusation, her

response was that Emig instead remained calm in reaction to the inspector’s

words. Tr. 207.

Grones agreed that, at Alcoa, any employee can invoke a

“stop job,” with that term meaning any employee can assert, “Stop this job,

it’s unsafe.” Tr. 207. She also agreed that Emig, under such circumstances,

should, in the words used by McNary’s Counsel, “accept Mr. McNary’s advice to

stop that job -- stop it and let’s figure out what to do.” Tr. 208. However, as

has been noted, the problem for McNary is that he did not invoke the stop

job option, though he knew full well about its availability, nor did he make

such advice to stop and figure out what to do.

When asked if a supervisor who doesn’t like a miners’ rep’s

opinion has a right to say,  “I don’t want you anymore. You leave. I’m going to

bring another miners’ rep in? You’ve never been trained that a supervisor can

do that, have you,” Grones responded that “it depends,” such as “if the person

is being disruptive or if it’s in some sort of harassing behavior.” Tr. 209. However,

if the matter simply involves a miners’ rep who disagrees with an action, then

Grones agreed that is not cause for a supervisor to replace that miners’ rep

with another rep. Tr. 209. The Court notes that the problem with this

hypothetical is that it did not occur here.

Grones was then shown two orders, Exhibits P3 and P4, which

were issued at the relevant time. There was Order Number 8769213, in which MSHA

alleged that safe access was not provided to the L5L pump under 32 in

digestion. MSHA alleged that miners who entered the area were exposed to being

burned by spraying slurry or engulfed in the material. Grones agreed that the

citation reflects the inspector’s opinion in that regard. Tr. 213-14. Further

Grones agreed that the citation also alleges, per Inspector Barrick words, that

Emig had “engaged in aggravated conduct because he failed to initiate

appropriate actions, provide safe access to the area.” Tr. 214. Grones then

agreed that Emig was in charge of the digestion department and responsible for

the safety of miners who went into the hot slurry. Tr. 214. Grones did not know

if Alcoa ever challenged the citation reflected in Ex. P3, nor if it paid a

$5,000 civil penalty for that. Tr. 215.

Referring to Ex. P4, Order No. 8769214, which alleges that

Alcoa failed to instruct miners regarding what to do should the packing on a

pump being brought down if it began to surge or fail, McNary’s Counsel asked if

Alcoa had trained any operators on how to handle a valve that’s spewing slurry,

and her response was “no,” as “that would be an emergency and we would decide

at that moment if we needed to develop a special procedure.” Tr. 216.

Addressing McNary’s action to contact her, Grones agreed

that she never told any miners’ rep that they did not have a right to contact

her and that she would encourage a miners’ rep to contact her if her assistance

was needed. Tr. 215. Thus, she agreed seeing nothing wrong with McNary

contacting her to come to the L5 area. Grones did not accept the premise of

McNary’s question as to whether Alcoa did any specialized training after the

Brown burn incident, responding that was a different case, involving a lock out

issue and a different task. Tr. 217. However, there was some training in the

department, following that incident. Tr. 218.

As to Grones’ remark that Barrick was “mean” to Emig, she

expressed that there are ways to bring up issues of past accidents. She added

that the inspector later apologized for his behavior of cussing and getting

mad. Tr. 218-19.  

Based on the inspector’s remarks, in Order No. 8769214, Ex.

P4, under the Condition and Practice section, he required that the “five

particular miners are to be withdrawn from pump swaps of this type until they

have received required training.” Tr. 219. Grones agreed that this meant that

they couldn’t go into such a situation again until they were given adequate

training. Tr. 220. McNary’s counsel also debated with Grones that one person’s

view of “disruptive behavior” could be different from another’s view of such

behavior. Tr. 220.

Reminded that she discussed with Emig the issue of whether

to shut down the digestion unit, she then agreed with the words used by

McNary’s Counsel that since she “raised the issue of shutting down the

digestion unit, Mr. Delgado’s raising the issue would not have been

inappropriate.” Tr. 223.

Audio

testimony of Mr. Steve Emig [20]

Emig

briefly reviewed his educational background; he has a degree in engineering. Following

that, he began working for Alcoa, in January 2007, and he has remained with

that employer since that time. Tr. 234. His work with Alcoa began at its Point

Comfort facility. Tr. 234. At Point Comfort, Emig was first with the

clarification department as a liability mechanical engineer, a position he held

for three years. He then became a maintenance coordinator in the digestion

department, working at that job for nearly two years. Following that, he was

promoted to the department superintendent role within the digestion department

and again worked in that capacity for three years. A promotion then followed as

the west side manager role. He remained in that job until he transferred, in

August 2015, to Alcoa’s western Australia facility where he was working at the

time of his testimony in this case. Tr. 234-35.

Turning to the events of January 8, 2014, when Emig was the

department superintendent for digestion, his immediate supervisor was then

Michael Hersoff, the production manager at the site. Tr. 235-36. Emig spoke to

the problem with the valve in the L5 digestion area, stating that Joe Nevlud,

who was a retired contractor, but working at the support department, told him

about a leak in the unit. Tr. 236. This occurred at some time between 7:30 and

8:30 that morning, when Nevlud arrived at Emig’s office, reporting the issue. Tr.

236. Upon being informed of the matter, Emig went straight to the area. On his

way to the area he called Donnie Broussard, who was at that time the production

area supervisor or “PAS.” Upon arriving at the site of the problem he came into

contact with other people who were responding to the situation. Tr. 237. He

then saw operators putting on gear, and a supervisor directing the crew. Tr.

238. Emig also could see the problem, noting that “there was a considerable

amount of slurry/liquor and spewing, spraying out in the valve area behind the

pumps that are located there. The -- the area seemed quite inundated with that

material at the time.” Tr. 238. As noted, he saw some operators donning suits. Though

he couldn’t be sure, he thought they were donning paper suits or Tyvech [21]

suits. Some might have been using rain coats. Id . Also, some operators

were assembling canvass material for use in draping the leak, to contain the

spray. When he arrived, the attempt to drape the leak with canvass had already

not been successful. Tr. 239.

Following

this initial view of the situation, Emig stated that he

just tried to get involved to understand what they were

doing to keep themselves protected from any of the caustic or slurry. It would

have been at temperature as well [as] making sure that when they were putting

on gloves and suits that they – that would be, you know, a sealed area, to not

let anything pass through. I would have had conversations with the supervisor

to understand how the unit was operating. So I would have a conversation also

with Donnie Broussard when he arrived to the area to make sure that the unit

was pressured up or in a state that it was -- it was going to shut itself down

basically.

Tr. 240.

Asked

if he knew “if there had been any efforts to shut down the valve” before he

arrived, Emig responded that he could not remember clearly about that, but

thought that the valve had been partially closed. Id . No one

could work the valve until the pressure had died off, so he expressed that the

valve would have been partially closed prior to his arrival. Id .

A

critical question posed to Emig was whether “during the time that he was there,

did [he] instruct any of the miners who were there to try to access the valve?”

Tr. 241. Emig responded that he “did not.” Tr. 241. However, while he was there

he did observe miners trying to access the valve. He saw that the operators had

some protective equipment on and were trying to get close enough to the valve

to drape the canvas on it, an attempt which, as he noted earlier in his

testimony, did not succeed. At that point, Emig stated, they were in “a

somewhat of a stand down position.” Id .

Asked

again if he instructed the operators to go in, Emig responded that he

was present. So in the middle of a time-out session to

regroup and think about what we were going to do, they had turned the pump back

on to try to reduce the pressure, which was successful but that was after I had

already said that we weren't going to do anything until we all agreed on the

steps. When that happened, they had proceeded into the area in a very quick

response because the pressure had died off. But, no, I did not direct them into

there. I even -- but then after that -- after I pulled them back out, I said,

you know, ‘We did not agree to that.’

Tr.

241-42.

Emig

stated that after he pulled them out, no operator went in again, adding that

“they did not go back in there, but that was because I became more forceful in

my language to say, ‘We cannot continue to access the area.’” Tr. 242.

Asked

if he contacted anyone else, besides Broussard, when on his way to the site,

Emig responded,

“[y]es …[he] called Kelly Grones who was the health and

safety manager at the time. .. [he] made her aware of the situation and told

her …[and] [a]s [he] was doing the – the time-out session to not proceed any

further, [he] asked for her [Grones] support, to come down and help us assess

the area so we could put a plan together.

Tr. 242.

Emig

added that around that same time he also spoke with Jeff Jimenez, who was the

former PAS (process area supervisor), and told him about the situation in order

to get his support. Tr. 243. After Emig spoke with him, Jimenez then came to

the area. Id .

Regarding

the presence of an ambulance at the site of the problem, Emig informed that

when mechanic Tim Ables came by the area and inquired if it would be a good

idea to have the ambulance there on standby, Emig agreed. Tr. 243.

Speaking

to the central, but not exclusive, issue in terms of the totality of the

circumstances in this matter, Emig was asked when he first saw McNary that

morning. Emig responded that it was not long after he, that is to say, Emig,

arrived at the scene. Tr. 244. He recalled his conversation with McNary at that

time occurred when “the operators were putting their suits on, I had gone to –

[McNary] and Mr. Delton Luhn, who was next to him, and asked if either one of

them had any duct tape.” Tr. 245. The duct tape was for the purpose of sealing

the glove and arm section of the suits. Id . Both advised that

they did not have any tape and so Emig asked if “either one of them would

possibly get some duct tape for the operators.” Id . He could not recall

if either acknowledged his question. Id . The purpose of the tape

was to seal up the PPE. Emig stated that he did not instruct the operators to

wear the Tyvech suits. Id . Instead, he said it was probably

Broussard who issued that direction. Id . In fact, Emig stated that the

tape was not his idea either. Someone else mentioned it and Emig did not

disagree. Id .

Emig’s

next conversation with McNary occurred “after [he, Emig] finally got the full

time-out session to where nobody was finally going back into the area, [and]

Mr. McNary c[a]me over and asked to speak to[him, Emig]. So -- so from there,

[he, Emig] walked away from the group and had a one-on-one conversation [with McNary].”

Tr. 246. According to Emig, McNary’s “first approach was that he [McNary] had

contacted some people to come down and assess the situation to instruct [Emig]

on what to do.” Id . Emig stated that, in response, he let McNary

know that, Hey, we were in a full stand down mode and that

[he, Emig] had contacted [Grones] as well to come down. We were assessing it. [Emig]

then -- because [he] had felt that [McNary] was trying to control the

situation, [Emig] let him know that -- that [he, Emig] was directing the group,

[but that McNary] could be involved if he [McNary would] like.

Tr. 247.  

Again,

by Emig’s recounting, McNary’s

first response was he didn't have to listen to me [Emig],

which caught [him, Emig] by surprise. [Emig] wasn't quite sure why [McNary] said

that, and [he, Emig] asked him what he [McNary] meant by that. And [McNary]

said, ‘Well, not in this role,’ and [Emig] still didn't know what [McNary] was

referring to. And [he, Emig] said, ‘What role is that?’ He [McNary] said, ‘The

MSHA representative role.’ So from there, [he, Emig] began to explain to

[McNary] – [telling him] ‘Well, you have to listen to me [Emig] as an employee

of my [Emig’s] department and the department superintendent.’ So from there, he

-- he [McNary] didn't appreciate that comment and still reiterated, he [McNary]

didn't have to listen to [him, Emig]. [He, Emig] told [McNary] – [he] explained

to him [McNary] that, yes, he [McNary] did. And, ultimately, his behavior

became unsuitable and irate and [he, Emig] hustled him [McNary] up and had him

[McNary] removed from the area.  

Tr. 247.

Alcoa’s Counsel asked if, upon learning from McNary that he

had called people to come and assess the situation, if he told McNary that he

should not have done that or that he had no business doing that. McNary

responded, “No, not at all.” Tr. 249.  

The Court believes this interaction between McNary and Emig

was a critical moment in understanding the totality of the circumstances. Yes,

a miners’ representative has rights, significant rights, but they are not

boundless. Here, having considered the testimony of McNary and Emig, the Court

finds that McNary overstepped those bounds and Emig’s statement to him, made in

the heat of the moment, and at a point where McNary had been insubordinate, must

be understood in that context. Further, very shortly thereafter, only moments

after Emig’s spontaneous remark in reaction to McNary’s improper remarks, (a

mere five to seven seconds later, according to McNary), Emig regained his

composure and did not take what was essentially baiting on McNary’s part, to

get Emig to reaffirm his excited utterance. To be specific, for this moment,

which involves an important credibility determination, and having heard Emig’s

and McNary’s versions of their interaction, the Court finds Emig’s recounting

to be the more credible telling.

Continuing with his testimony, Emig related that after he

had McNary removed from the area, there was

a brief argument regarding whether or not [he, Emig] had a

right to do that, and [Emig] told [McNary] that, Well, [he, Emig] did … have

the right if [he, Emig] felt it necessary, [Emig] explained to him, to have him

removed from the area. And if it came down to it, I’d have to have stood down

fully and even from the plant as we would have done for anybody else, but it

created a hostile environment.

Tr. 248.

From

there, “the conversation kind of abruptly” ended about the time three other

individuals, Delgado, Barrick and Medina, showed up. Id .

Before McNary entered that conversation, Emig stated that

he was replaying the context of the situation up to that point with the other

three. Tr. 249. Emig expressed that, because of the “way that the conversation

ended between [himself] and Mr. McNary, [he, Emig] began to fill Carlos Delgado

in on the situation, which he was the site MSHA rep.” Id . By Emig’s

characterization of that interaction, the conversation with those three “didn’t

end well.” [22]

Id . Primarily, he was addressing Delgado during this conversation but

telling all of them “what [he, Emig] knew at that point as far as the valve and

it was spraying out, how the -- how we got to where we were as far as the

operators responding to that and depressurize the area by the pump coming

online.” Tr. 250. Emig stated that Delgado said he was “sorry.” Tr. 250. Emig

added that, after explaining the situation, Delgado “very quickly just said to

shut down the unit.” Id . Emig saw matters differently, expressing that

shutting down those units can present “quite a few safety risks in and of

itself, not the operator’s task but also the mechanics. … [Emig] had started an

explanation with [Delgado] but [he, Emig] didn't get very far in that at all.” Tr.

251.

Further, McNary jumped into the conversation too and this

occurred before Grones showed up. Thus, Emig stated that McNary interjected

himself into that conversation and made some accusations about his, Emig’s,

behavior. Tr. 251. This included McNary alleging to those assembled that Emig

had sent him on a wild goose chase to get duct tape. McNary, according to Emig,

said, that Emig “had directed [McNary] specifically to leave the area. He

[McNary] had also accused that [he, Emig] directed the operators into the valve

area.” Tr. 252. Emig responded that he “did neither” of those things. Id .

At that point, by Emig’s telling, McNary argued back “Yes, you did.” McNary

argued back in his own defense. Id . Emig then determined that the

conversation escalated to a point where [he, Emig] made the

decision that [he] didn't want -- I felt -- I felt it was an extremely bad

shelling. As we were trying to handle this crisis, so to speak, [and he is]

sitting there taking accusations [from] McNary. Because of that, [he, McNary]

removed [him]self and Mr. McNary from the area at the time.

Id .

Thus,

it was Emig’s testimony that, as the conversation was “going nowhere,” he put

Jimenez in his, Emig’s role, to assess the situation and complete the

assessment once Grones arrived. Id .

Emig acknowledged that he also made a statement to McNary

directly that he “was through with him at that time ‘cause he had -- he had

pushed me to a point that I did not think it was going further in a positive

direction anyway.” Tr. 252. Emig elaborated that McNary

had said, ‘Oh, you're through with me for good? I said, ‘No,

I’m not through with you for good. I'm just through with you for right now’

because of the point it had gotten to. He [McNary] said, [again] ‘Oh, you’re

through with me for good?’ And that constant reiteration was extremely

frustrating and I said, ‘No, just right now.’

Tr. 253.

Emig

related that Grones arrived at a time not long after he had begun his

discussion with Delgado and Barrick. Tr. 255. When Grones arrived, he filled

her in as to what had transpired and she asked about the options in shutting

down the unit. Tr. 255. The conversation did not proceed much further because

Barrick became irate and that had the effect of preventing Emig from continuing

his conversation with Grones. Tr. 255. [23] After Barrick walked off, those

remaining watched “the last activities those operators had taken to seed off

the valve. The pressure was dying off and there -- there really wasn't much

discussion beyond that. It appeared that it was becoming resolved.” Tr. 256. Emig’s

direct exam concluded with his statement that he never removed McNary from the

site. Tr. 257. The Court notes that no one, McNary included, contends

otherwise.

Under cross-examination, Emig was questioned about his

conversation with McNary after he “suggested about the duct tape.” Tr. 260. Per

the words used by McNary’s Counsel, Emig agreed that McNary accused him of allowing [24]

employees to go into the valve that was spewing the hot slurry. Emig

conceded that he held the supervisory position and was the chief person in the

digestion department and that the employees that entered the slurry were under

him in the chain-of-command. Tr. 261. McNary’s Counsel then stated, “you

could have directed them not to go back into that hot slurry, couldn't you?” Id .

Emig responded, “I did.” Id . That is, Emig stated that he

instructed the employees not to go back in. Tr. 261-62. Emig explained, “After

I seen [sic] that they were not going to be able to safely access that area, I

then told them that we were going to take a time-out and not go back in that

area until we figured out the appropriate solution.” Tr. 262.

McNary’s Counsel’s point was that when Emig arrived at the

scene, employees were putting on Tychem suits and that, at least initially, he

did not tell them they were not going to get into the hot slurry. Tr. 262. Emig

did not agree that inspector Barrick’s accusation was the same as McNary’s,

asserting that Barrick accused Emig of “forcefully directing them into that

area.” Tr. 263. Emig then added that McNary accused him of both allowing and

directing the employees into the area. Id . As noted above,

Emig’s claim on that point is accurate. Emig asserted that allowing and

directing are different things. [25]  

Turning to the events when McNary returned and McNary’s

testimony that he looked for duct tape, Emig confirmed that McNary told him at

that time that “there would be a group of people coming to assess the

situation.” Tr. 265. Challenged on whether McNary actually only said that

Grones would be coming to the site, Emig repeated that McNary stated there

would be a group of people and that Grones was coming too; Emig responded, “He

did also say he had contacted Kelly Grones, but he did say to me [Emig] that a

group of people would come.” Tr. 265. Emig agreed that the only specific name

mentioned was Grones. Tr. 266. McNary’s Counsel asked how an hourly employee

like McNary would have the authority to get a group of people to the site, Emig

responded that he did not inquire how McNary would gather a group and so he

could only speculate that McNary could have phoned people. Tr. 266.

Addressing Emig’s view that McNary was trying to tell him

what to do, apart from Emig’s impressions, Emig agreed that McNary never used

the words to Emig that “I’m conducting my own investigation” nor that he told

Emig that he was “in charge of this investigation.” Tr. 267. However, Emig

maintained that McNary implied those things. Id . Emig added, as

distinct from McNary asserting that he, McNary, had the power to tell him what

to do, McNary “did refer to the group that was coming down would tell [him,

McNary] what to do.” Id .

McNary’s Counsel then asserted that Emig didn’t mind Grones

coming down to assess the situation, but rather his problem was that McNary had

asked her to come down, an assertion which Emig denied, stating, “[t]hat’s not

correct.” Tr. 268. Emig responded further that his issue was that, by the words

he, McNary, used, McNary “was assuming to take control and then direct.” Id .

Though he could not be sure if McNary said “they” or “we,” he was inclined

to say that McNary said “we,” stating that McNary said, “‘We’ll direct you as

to what to do with the situation.’ It was that approach that, yes, made me a

little upset.” Tr. 268.

Turning to Alcoa’s “stop job” policy, Emig agreed with the

words used by McNary’s Counsel that “any employee, whether or not you're a

miners' rep or just a regular hourly employee, has the right to stop a job if

they think there's an unsafe condition present.” Tr. 269. Therefore, Emig

agreed that McNary could have said to Emig that he was “stopping this job and

you [Emig] are not sending anybody into that L5 valve area.” Id . Emig

qualified his agreement, stating, “[y]es. If he had approached it that way,

yes.” Id .

Elaborating, Emig stated that

[t]he reason [he, Emig] did not like it was because [he,

Emig], in the moment, had already stopped and was pulling everybody out trying

to control the crisis. He [McNary] appeared to be oblivious to that, even

though he was close enough, and then approached it as if he was getting the

people down to then stop and -- and direct. . . . [t]hat’s why.

Tr.

269-70.

Further,

Emig denied the suggestion by McNary’s Counsel that he, Emig, didn’t like

McNary taking credit for the action, responding,

No, not a credit. It -- from a – being involved

perspective. I had -- I told him that we had stopped and we were assessing it

and I had also spoken to [Grones] to come down and to be a part of that. That's

why I extended my offer to him to be involved with that as well.

Tr. 270.

Since Emig agreed that McNary, or for that matter, any

operator, could have invoked the stop job right, the suggestion was then made

by McNary’s Counsel that what Emig objected   to about McNary’s words and

actions, accepting for the moment Emig’s version of the events, was really no

different than if McNary had simply invoked the stop job right. Tr. 271. Understandably,

the Court notes that while Complainant’s Counsel may wish to equate the two, they

are quite different.

Getting to the language that constituted a focal point in

this dispute, McNary’s Counsel asserted to Emig that he [Emig] “told Mr. McNary

[that he, Emig] could remove [McNary] as a miners’ rep and bring in another

miners' rep in his place.” Tr. 271. Emig responded that he “said to him that if

[he, Emig] felt the need because of his [McNary’s] behavior, even as a miners’

rep, [he, Emig] could assume someone like Carlos Delgado as his assistant

miners’ rep, yes, I told him that.” Tr. 271-72.

McNary’s Counsel then asked if Emig told McNary that he

could remove McNary as a miners’ rep and replace him with another miners’ rep,

and that he told him he could remove McNary from the plant. Emig answered,

“yes” to both questions. Id . This admission, an indicator of

Emig’s honesty, is but one part in the analysis of the totality of the

circumstances.  It is not, in the Court’s view, the “be-all and end-all” of

this interference claim. [26]

Critically,

McNary’s Counsel, having established that Emig agreed that an operator and or a

miners’ rep has the right to express that a situation is unsafe, then asserted,

“And he did tell you that that day, did he not? He thought it was dangerous to

send anybody into that area?” Tr. 275. Emig’s response was plain and direct, “I

don't believe he ever expressed that to me.” Id . Emig knew that

McNary was concerned about the safety of the operators, but he stated,

“[t]hat’s different. I assumed he was concerned as I was for the operators but

never once said that he was concerned about them going in there.” Id. McNary’s

own testimony supports Emig in this regard; McNary never expressed such a

concern before he informed Emig of his end run.

The

Parties’ Post-Hearing Briefs [27]

Both sides presented their respective view of the facts. While

the respective views of the parties were considered, the Court’s findings of

fact, as set forth above, control.

Complainant’s

Post-hearing Brief

Complainant’s

Post-hearing Brief summarizes McNary’s contention that Alcoa violated McNary’s

section 105(c) rights

“when Emig verbally threatened to remove McNary as a

representative of miners, threatened to remove him from the digestion unit, and

threatened to remove him from the plant, on January 8, 2014, after McNary asked

a safety and health manager to assess a hazardous situation in the digestion

unit and criticized Emig’s handling of that situation.

C’s Br. at

1.

The

Court, based on the testimony at the hearing, as set forth in this decision,

does not adopt the Complainant’s characterization of the events.

In

the “Arguments” section of Complainant’s Brief, Complainant asserts that Alcoa

violated section 105(c)(1) of the Mine Act under both a discrimination analysis

and an interference analysis. Id . at 23. As this case involves an

interference claim, the Court will apply the interference analysis and

applicable case law for such a claim. However, a discrimination analysis does

not yield a different result for McNary.

Complainant

brings attention to the fact that “Alcoa had a stop job policy , which

allowed miners’ reps and even hourly employees to override the decisions of

supervisors - if they felt that a hazardous condition existed - until all

parties could meet and discuss the situation.” Id . at 24. Complainant

notes that “There is a long line of Commission cases - dating back 35 years -

that hold that a threat of reprisal is an unlawful adverse action under

§105(c)(1).” Id . (Bold type in Complainant’s Brief ). The Court

does not take issue with that contention but the analysis does not end there. Instead,

where claims of interference are asserted, a “totality of the circumstances” analysis

must take place.

In

the Court’s view, while not expressly making the assertion, McNary implicitly

suggests that, if made, the utterance of the words ascribed to Emig is the

beginning and end of the case; that is, McNary should prevail in his interference

claim without the need to consider anything else. Thus, as Complainant

expressed it

the Commission made clear that, if true, Emig’s comments to

McNary - i.e., that he would remove McNary as a MSHA rep, remove him from the

digestion department, and remove him from the plant - were threats of reprisal.

… Indeed, the Commission ruled that, ‘At least two of the three threats were

not vague. It may be said that ‘removal from the plant’ is susceptible to

different meanings depending on the length of time of the removal. However, the

threats to remove McNary as a miners’ representative and to remove him ‘from

the department’ were quite specific.’… Because it is clear that Emig threatened

McNary because of his protected activity of calling Grones to the scene of the

hazardous leaking valve, and because of his safety complaint regarding Emig’s

handling of the situation, Emig’s actions violated §105(c)(1) under the

traditional Pasula-Robinette discrimination analysis.

Id. at 25.

Complainant

sets up a straw man by claiming

[w]hen a miners’ rep, who is charged with being involved

in health and safety matters in order to improve health and safety on the job,

is threatened with disciplinary action for speaking out on the unsafe

practices of mine management, of course that tends to interfere with

his exercise of his safety rights. It also has a chilling effect on other

miners and miners’ reps who may be fearful to speak out for safety if they

think they will be threatened by mine management as a result.

Id . at 26 (bold text added).

The

Court views the Complainant’s assertion in this manner because that is not what

occurred. McNary did not speak out to Emig about alleged unsafe practices, nor

did he invoke his right – a right of which he was quite aware – to assert the

mine’s stop job policy. Therefore, the Court agrees that, yes, as Complainant

notes, McNary had a right to “express a contrary opinion.” Id . at

27. The problem is that he did not do so.

McNary’s

Reply Brief

As

with the contentions raised in the parties’ initial briefs, the Court’s

findings of fact overtake the factual contentions made by the parties’ reply

briefs.

McNary’s

Reply begins by taking issue with Alcoa’s claim that McNary waived his

discrimination claim, asserting that,

“McNary was pro se when [the Court] issued [its] summary

decision. Mr. McNary filed his own petition for discretionary review with the

Commission, and then [Complainant’s attorney] filed ... [an] Amended Petition

for Discretionary Review, which the Commission granted. In [Complainant’s

Counsel’s] view, this is a discrimination/interference case and we do not agree

with [Alcoa’s view] that the Commission remanded it for a ‘discrete’ issue.

C’s Reply at 3-4.

Thus, Complainant repeats the argument made in

its initial brief, contending that “Emig’s threats of reprisal against him

violated §105(c)(1) of the Mine Act both under a discrimination analysis and

under an interference analysis.” Id . at 4.  

As

noted above, the Court has addressed this contention, however a few additional

points will be made. In trying to have McNary’s Counsel particularize the

difference between McNary’s discrimination complaint and his interference

claim, if there is any difference in this matter, the Court noted that its

understanding was that “there was no classic adverse action in the sense that

Mr. McNary was not disciplined, he did not have a reduction in pay. There was

nothing in the classic tangible sense.” Tr. 10. McNary’s Counsel replied,

“If that’s what [the Court] consider[s] classic tangible

[adverse action], but what the Commission said is that based on the legislative

history of the Mine Act and on case law, a threat of reprisal is an act of

discrimination, and you don’t have to prove that it was acted upon or carried

out. Just the threat of reprisal is discrimination .

Tr. 10-11;

C’s Reply at 4 (bold and brackets in Reply.)

Complainant

then blurs an important distinction, contending that “Alcoa repeatedly states

that Emig only threatened to ‘remove’ McNary, which is inaccurate.” C’s Reply

at 4 (capitalization and underscoring removed). However, the claimed

“inaccuracy” is difficult to identify with any accuracy. McNary’s ire seems to

be that Alcoa did not state that Emig admitted to making threats to

McNary. Complainant then cites to its view of Emig’s admissions, followed by

Complainant’s review of McNary’s version of what was said between him and Emig.

For good measure, Complainant adds that Delgado confirmed McNary’s testimony. Id .

at 4-5.

Ultimately,

as noted, what was actually said is for the Court to determine, a determination

which is made upon consideration of the parties’ arguments in their briefs, the

testimony of the witnesses, and the Court’s credibility determinations about

that testimony.  

Moving

to a different contention, speaking to the words between Emig and McNary, the

Complainant asserts that,

“[i]t is one thing for a miners’ rep and foremen to engage

in a ‘robust discussion’ about safety and health issues on the job. It is quite

another for a supervisor to threaten a miners’ rep for disagreeing with his

assessment of a hazardous situation and whether or not miners should be exposed

to dangers. That is what happened in this case , and it is a critical

distinction that is apparently lost on Alcoa . . . per its posthearing brief.

Id. at 2 (emphasis added).

As

discussed above, the Court considers McNary’s claim that Emig threatened a

miners’ rep for disagreeing with his “assessment of a hazardous situation

and whether or not miners should be exposed to dangers ” to be a gross

mischaracterization of the exchange and one that is very much at odds with the

facts. C’s Reply at 2.

McNary’s

Counsel also offers its take on what should properly be within the ambit of the

“totality of the circumstances.” Counsel urges that McNary’s prior burn injury

from slurry and Mike Brown’s burn injury and MSHA’s issuing citations regarding

the conditions on the date of the incident should all be part of that totality.

Id . at 6-7. McNary also states that there must be a complete

factual account. Id . With that last remark at least, the Court

agrees and it believes that the findings of fact present such a complete

account. 

McNary

then transitions from the totality issue to its summary of the essence of the

case, asserting, “What this case boils down to is that McNary criticized Emig

for endangering the safety of his fellow workers - whom he represented as a

miners’ rep - and, in response, Emig threatened him. That is classic

discrimination, as well as interference, under §105(c)(1).” Id . at 7. As

discussed above, the Court does not buy into this characterization by

Complainant; it does not accurately portray what occurred. [28]  

Alcoa’s

post-hearing brief

Referring

to the January 8, 2014 event, Alcoa asserts that, while Emig was trying to deal

with the incident, McNary “attempted to direct Emig and take control of the

situation.” R’s Br. at 1. Just as the Court refrained from specifically

addressing the Complainant’s particular take on the facts, it does so for

Respondent as well, leaving the finding of facts to the Court, as set forth

above. Alcoa contends that, under the totality of the circumstances, McNary did

not prove interference. That contention consists of three parts: that “Emig’s

statements probably had no effect on McNary, a seasoned MSHA representative

accustomed to having heated and robust discussions with Alcoa’s management,”

with Alcoa noting that McNary “stayed in the area after Emig shouted at him,

suggesting that he did not really take Emig’s statements seriously;” that “Emig

had a legitimate and substantial reason for taking the position that McNary

should leave the area since Emig was in the midst of handling a crisis

situation and McNary’s behavior was disruptive;” and that “Emig’s decision to

order McNary removed was motivated not by McNary’s protected activity, but by

McNary’s difficult, hot-headed, and insubordinate behavior during an emergency

situation.” Alcoa Br. at 1.

Alcoa

also submits that

“McNary offered no evidence to rebut Emig’s testimony. In

fact, although lead MSHA representative Carlos Delgado was not present when the

miners attempted to access the valve, he did participate in the subsequent

incident investigation and testified that no miner had told him that Emig had

instructed them to access the valve.

R’s Br. 2,

n.1.

Alcoa

asserts that McNary’s action “proceeds only under a theory of interference, and

McNary’s only claim is that Emig’s unfulfilled threats to have him removed from

the area interfered with the exercise of his rights under the Mine Act.” Id .

at 6. As noted, McNary’s Counsel disputes that this case only proceeds on

an interference claim.

Speaking

to the totality test, Alcoa cites Moses v. Whitley Development Corp ., 4

FMSHRC 1475 (Aug. 1982) aff’d , 770 F.2d 168 (6th Cir. 1985), (“ Moses ”)

and Sec’y of Labor o/b/o Gray v. North Star Mining, Inc., 27 FMSHRC 1, 7

(Jan. 2005) (quoting TRW, Inc. v NLRB , 654 F.2d 307, 313 (5th Cir.

1981), (“ Gray ”) for the proposition that “[w]hether an operator’s

actions amount to interference, however, ‘must be determined by what is said

and done, and by the circumstances surrounding the words and actions.’ 4 FMSHRC

at 1479 n.8.” and that

[i]n determining whether a statement is an impermissible

threat . . . language used by the parties . . . must not be isolated nor

analyzed in a vacuum, but must be considered in light of the circumstances

existing when such language was spoken.” [and further that] [d]eterminations

regarding interference must take into account not just what was said, but also

when it was said, how it was said, and how often it was said.

R’s Br.

at 7 (internal citation omitted).

Noting

the views of two Commissioners in United Mine Workers of America

o/b/o Mark A. Franks and Ronald M. Holy v. Emerald Coal Resources, LP , 36

FMSHRC 2088 (Aug. 2014), (“ Franks ”), Alcoa remarks that those

Commissioners expressed that an interference claim is to be examined by whether

the challenged actions can be reasonably viewed under the totality of the

circumstances as interfering with the protected right and whether the actions

can be justified as sufficiently legitimate and substantial to outweigh the

harm from the interference. Id . at 8.  

Alcoa urges that,

“ a reasonable miner would have taken into account the fact

that Emig was under tremendous stress when McNary insisted on confronting him.

No one would dispute that Emig was dealing with a serious crisis when McNary

confronted him. A reasonable miner would have taken this into account or, at

least, would not have been surprised when Emig lost patience with him and was

no longer willing to deal with his distracting commentary and unhelpful

interactions, not to mention his insistence that he did not have to follow

Emig’s directions. Anyone who continued the confrontation given the circumstances

should not have been surprised if his supervisor ordered him removed.

Id . at 16.

Addressing

the second aspect of the interference test, Alcoa contends that “[e]ven if

McNary could show interference with his rights, Emig had a legitimate and substantial

reason for threatening to remove him, and that reason outweighs any harm caused

to the exercise of protected rights.” Id . at 17 (italics and bold

text removed). Alcoa asserts that “Emig did not try to remove McNary from the

scene because of his actions as an MSHA representative, as McNary contends, but

rather because of his actions as an employee—McNary had become disruptive and

confrontational at the very moment when Emig needed to focus on a crisis

situation.” Id .  Alcoa concludes that “McNary has failed to show that

Emig’s threat to remove him constituted interference under the Section 105(c)

and, even assuming some level of interference, legitimate and substantial

reasons vastly outweigh it.” Id . at 18. The Court agrees with

Alcoa.

Alcoa’s Response Brief

Alcoa contends that

Delton Luhn’s affidavit should be given minimal weight, because “much of the

language in Luhn’s affidavit was identical to an affidavit prepared by Carlos

Delgado.” R’s Reply at 1, citing C’s Exhibit 5 and Respondent’s Exhibit 17. Luhn

died a few months before the trial. Respondent adds that the nearly identical

statements also “sound much more like they were either ghost-written by an

experienced advocate who was unofficially helping the pro se McNary or pulled

verbatim from some brief that McNary had been given.” R’s Reply at 2. The Court

has spoken to these affidavits, above, but adds that, given the level of

erudition displayed by Delgado and McNary at the hearing, the Court finds that

something was going on with these affidavits and that it is appropriate to give

Luhn’s affidavit only the most minimal of weight.

Alcoa’s Reply also

asserts that the interference cases cited by McNary are distinguishable. Alcoa

Response Br. at 2. In this regard, Alcoa views the McGary decision as quite

different from this matter. Id. The Court agrees; factually the two are

not comparable in any useful sense. Alcoa reaches the same conclusion regarding

the administrative law judge decision in Secretary of Labor o/b/o

Greathouse, et. Al. v. Monongalia County Coal Co., et. al ., 38 FMSHRC 942

(May 2016) (“ Greathouse ”) and the Court agrees that Greathouse is

not comparable to the facts here at all. The same observation applies to the Reuben

Shemwell v. Armstrong Coal Co. , 36 FMSHRC 2352 (ALJ, Aug. 2014) and Pendley

v. Highland Mining Co. and James Creighton , 37 FMSHRC 301 (ALJ, Feb. 2015)

decisions. Beyond the maxim that decisions of fellow administrative law judges

have no precedential value, and therefore are useful only for whatever

persuasive observations they may contain, the Court finds that, as to that

latter potential value, those decisions are not helpful to this matter.

Applicable

Case law

Mine Act Discrimination Claims

Section 105(c) of the Mine Act states, in

relevant part: 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 [or]

representative of miners . . . because such miner [or] representative of miners

. . . has filed or made a complaint under or related to this chapter, including

a complaint notifying the operator or the operator's agent at the coal or other

mine of an alleged danger or safety or health violation in a coal or other mine.

30 U.S.C. § 815(c). Protected activity often takes the form of complaints made

to the operator or its agent of an “alleged danger or safety or health

violation. 30 USC § 815(c)(1). Section 105(c)(2) permits the filing of a

discrimination complaint by a miner, applicant, or representative of miners

“who believes that he has been discharged, interfered with, or otherwise

discriminated against,” and states that the Secretary’s complaint to the

Commission may allege ‘ discrimination or interference .’ 30 U.S.C. §

815(c)(2) (emphasis added). Section 105(c)(3) also permits an individual to

file a complaint charging “discrimination or interference”” in violation of

section 105(c)(1). 30 U.S.C. § 815(c)(3). McGary v. Marshall Cnty. Coal Co .,

38 FMSHRC 2006, 2009 (Aug. 26, 2016).

The legal framework for assessing

discrimination claims brought under the Act is well-established. A complainant

may establish a prima facie case by showing “(1) that he engaged in protected

activity, and (2) that he thereafter suffered adverse employment action that

was motivated in any part by that protected activity.” Pendley v. FMSHRC ,

601 F.3d 416, 423 (6th Cir. 2010). The complainant bears the ultimate burden of

proving these elements by a preponderance of the evidence. 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 (Apr. 1981). The Court has found that McNary did not

prove his case under the preponderance standard.

An adverse action is any “act of commission

or omission by the operator subjecting the affected miner to discipline or a

detriment in his employment relationship.” Sec’y of Labor on behalf of

Jenkins v. Hecla-Day Mines Corp ., 6 FMSHRC 1842, 1847-48 (Aug. 1984).      

An adverse action must be material, meaning that the harm is significant rather

than trivial.    In determining whether adverse action has occurred, the

Commission applies the test articulated in Burlington North v. White. Burlington

N. & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006); see also Sec’y of

Labor on behalf of Pendley v. Highland Mining Co ., 34 FMSHRC 1919, 1931

(Aug. 2012).

If a complainant establishes the required

elements, the burden shifts to the operator to rebut the prima facie case by

showing “either that no protected activity occurred or that the adverse action

was in no part motived by protected activity.” Driessen v. Nev. Goldfields,

Inc ., 20 FMSHRC 324, 328 (Apr. 1998).

An operator who cannot rebut the prima facie

case may still raise an affirmative “mixed motive” defense by proving that the

adverse action was motivated only in part by protected activity, and it “would

have taken the adverse action for the unprotected activity alone. Haro v.

Magma Copper Co ., 4 FMSHRC 1935 (Nov. 1982). The operator must prove this

defense by a preponderance of the evidence. Id ., see also Pasula ,

2 FMSHRC at 2799-800. When evaluating an affirmative defense, the Court follows

the two-step analysis outlined by the Commission in Chacon v. Phelps Dodge. Sec’y

of Labor on behalf of Chacon v. Phelps Dodge Corp ., 3 FMSHRC 2508 (Nov.

1981). The first step of the Chacon analysis directs the Court to determine

whether “the justification is so weak, so implausible, or so out of line with

normal practice that it was a mere pretext seized upon to cloak discriminatory

motive.” 3 FMSHRC at 2516. If the Court finds that the justification is not

pretextual, it then moves to the second step, which is a “limited examination”

of the justification’s substantiality, and assesses the narrow question of

“whether the reason was enough to have legitimately moved that operator” to

engage in the adverse action.” Id. at 2516-17.

Interference

Claims are to be examined under the totality of the circumstances

Just as in this matter, Wilson v. Fed.

Mine Safety & Health Review Comm’n , 863 F.3d 876, D.C. Cir. 2017

(“ Wilson ”), involved a claim of interference with a miner’s statutory rights.

The right invoked in Wilson was interference with the right to inspect

the mine’s examination books. There are notable factual differences between Wilson

and McNary’s claim – with the former involving an hourly miner who was alleged

to have interfered with Wilson’s right as a miners’ representative to review

the mine’s preshift and onshift examination books.      Among other things, the

miner told Wilson that reviewing those books in order to find violations was

interfering with his livelihood and that he should go home. Management then

intervened in that confrontation, removed the hourly miner, telling the miner

not to interfere with Wilson again. The hourly miner was also suspended for the

rest of the day and lost a day’s pay. Wilson’s interference claim failed. [29]

Despite the significant differences between

these cases, Wilson is valuable because it articulates the appropriate

factors to consider for interference claims, as well as those factors which are

not appropriate. The D.C. Circuit noted in Wilson that “[t]he Commission

has instructed that ‘rather than considering only [the respondent’s] intent,

the [ALJ] should ... analyze[ ] the totality of circumstances surrounding [the]

statements’ to determine whether a violation of Section 105(c) occurred.” Wilson

at 881 (citing Gray , 27 FMSHRC at 10).

The Court also noted with approval that “the

Commission has instructed, whether ‘interference’ occurred does not turn ‘on

the [respondent’s] motive or on whether the coercion succeeded or failed.’” Id .

(citing Gray at 9). The Court then noted, with similar approval,

that the Secretary’s test calls for an objective evaluation of how a reasonable

miners’ representative would view the alleged interfering conduct, and not

whether the person allegedly interfering had a subjective intention to

interfere with the miner’s statutory rights. Id . at 881-82. With that in

mind, the Court noted that the encounter lasted only a few minutes. Id .

at 882. Thus, the D.C. Circuit agreed with the Commission view that “ the

relevant perspective on the issue is that of the reasonable miner [ or

miners’ representative ], not the subjective perspective of the

complainant .” Id . (italics added). Accordingly, even though the

judge did not view the miners’ rep’s behavior as dispositive, it was still

error to consider it at all, because that miners’ rep’s subjective reaction to

the allegedly threatening or coercive remark made by the hourly miner is not to

be considered, as that is inconsistent with the objective standard to be

applied.

Addressing the

context of the incident, in Wilson the incident occurred in a public

setting , and the Court approved the administrative law judge’s view that

such a setting is a mitigating factor, noting that,

[u]nder the

totality of the circumstances, the Commission has observed that a public

interaction with witnesses at the mine could be less intimidating than one that

occurs in private, for example, through an at-home telephone call [or] a

meeting outside the mine office. Here, that was true because the public nature

of the incident enabled another employee, who was also a miners’

representative, to report the altercation and prompt the mine supervisor to

intervene.

Id. at 882 (internal citation

omitted).

The D.C. Circuit

determined that the judge correctly applied the factors set forth in Multi-Ad

Servs . Inc. v. NLRB , 255 F.3d 363, 372 (7th Cir. 2001). Although the

judge was incorrect in considering the subjective reaction from the miners’

rep, that did not result in a remand because the judge did correctly apply the Multi-Ad

factors in concluding that no interference occurred, and the judge’s improper

consideration of actual response of the miners’ rep was harmless because that

conclusion was made only to reinforce his earlier conclusion, applying the Multi-Ad

factors. Accordingly, here, McNary’s subjective reaction to Emig’s

remarks is not to be considered – the correct test is the perspective of a reasonable

miner to those words, with the words being considered in the totality of the

circumstances.

Wilson, though not

prevailing overall, won the assertion that, under the totality of the

circumstances test, a judge should not consider that, following an

incident, the miners’ rep continued to act in that representative capacity. Again,

the DC Circuit emphasized that as the   ‘interference’ test is objective, and “the

Commission has instructed that ‘the relevant perspective on the issue is that

of the reasonable miner [or miners’ representative],’ not the subjective

perspective of the complainant.” Wilson at 882.  Thus, even though the

judge did not consider it to be dispositive, he erred in considering the “subjective

perspective of the complainant.” Id .

One aspect of the

Wilson decision helps McNary, while another aspect does not.  Helping

McNary is that, in his case, management does bear responsibility for the

conduct involved. Indeed, the alleged violative conduct came directly and only

from management, through Mr. Emig. Hurting McNary’s side of the argument is

that, in Wilson , only a single isolated incident was involved. That is

what happened to McNary; there was but a single, isolated, and quite brief ,

instance. Evaluating the totality of the circumstances also means considering

that Emig’s words occurred in the heat of the moment, as the mine was trying to

deal with a serious equipment failure.

Wilson did

refer, approvingly, to the Commission’s decision in McGary [30]

v. Marshall Cnty. Coal Co., 38 FMSHRC 2006 (Aug. 26, 2016). McGary involved

complaints of interference brought by the Secretary of Labor on behalf of six

miners pursuant to section 105(c) of the Act, which pertained to meetings

Respondents held with their miners. The meetings included the subject of miners

contacting MSHA about perceived safety issues. The Secretary alleged that

Respondents interfered with the exercise of miners’ rights at each of the mines

by coercively imposing a requirement that miners who make section 103(g)

complaints report the same complaint to management. Of value to this matter,

the Commission set forth in McGary the “Appropriate Test for

Interference.” Id . Referring to the views of Chairman

Jordan and Commissioner Nakamura, as expressed in UMWA on behalf of Franks

and Hoy v. Emerald Coal Resources , LP , 36 FMSHRC 2088, 2104-19 (Aug.

2014) (“Franks”), the Commission in McGary concluded that the Franks

two-step test is consonant with the Commission’s decisions in Gray and Moses.

That test

provides that

interference is established when (1) a person’s action can be reasonably

viewed, from the perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the exercise of

protected rights, and (2) the person fails to justify the action with a

legitimate and substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

McGary at 2011 .

In this matter, the

Court finds that McNary did not establish the first element and that Alcoa did

establish the second.  

In McGary a

Commissioner noted “that an operator may have legitimate and substantial reason

for its conduct in question,” and, consistent with that, rejected the idea that

an operator may never question or comment upon a miner’s exercise of a

protected right. [31] McGary at 2012

(citing Moses v. Whitley Dev. Corp ., 4 FMSHRC 1475, 1478-79 (Aug. 1982),

aff’d , 770 F.2d 168 (6th Cir. 1985)).

It is fair to state

that the Commission and the D.C. Circuit agree that the first prong of the test

is to inquire “whether Respondents actions can be reasonably viewed, from the

perspective of members of the protected class and under the totality of the

circumstances, as tending to interfere with the exercise of protected rights.” Id.

at 2015. As just noted, the Court finds that, applying the first prong,

McNary failed to establish it. Further, also as just noted, the Court finds

here that such legitimate and substantial reasons were present for Alcoa and,

of equal importance, that McNary had not yet exercised a protected right at the

time when Emig reacted. Accordingly, consistent with the Court’s findings of

fact, the Court concludes that McNary failed to establish the first prong.

McGary also noted,

quoting Moses,“ [w]here an interference claim is made, examining in

isolation the literal meaning of the language used is contrary to the totality

of the circumstances test .” McGary at 2016 (emphasis added)(quoting Moses ,

4 FMSHRC at 1479 n.8); see also , Gray , 27 FMSHRC at 8; 10

(“Whether an operator’s… comments concerning a miner’s exercise of a protected

right constitute coercive… harassment proscribed by the Mine Act must be

determined by what is said and done, and by the circumstances surrounding the

words and actions.”). The Court has adhered to this. It did not examine Emig’s

words in isolation.

It should also be

noted that, in evaluating this case, the Court is aware of, and fully

considered, the Commission’s remark in McGary “that one of the most

important circumstances in any interference analysis is the position within the

company that the communicator of the statements alleged to constitute interference

holds relative to the recipients of the communications.” Id . at 2017.

However, the Court observes that although the position of the communicator is

one of the most important circumstances, that does not supplant the required analysis

of the totality of the circumstances. [32]

The Commission then

addressed the second prong of the interference test. Under the second prong of

the Franks interference opinion, it was remarked that an operator may

defend against an otherwise valid interference claim if it offers a “legitimate

and substantial reason whose importance outweighs the harm caused to the

exercise of protected rights.” Citing Franks, 36 FMSHRC at 2108. Thus, Franks

stated that “an operator may comment upon a miners’ exercise of a

protected right when it is ‘necessary to address a safety or health problem.’” Id .

at 2019. That statement, in McGary , doesn’t fit exactly in this

case, but under the circumstances of McNary’s behavior and his words, which

informed Emig about McNary’s behavior, it does explain and, in the Court’s

view, permitted Emig’s understandable ire. However, that ire was not directed

at any protected activity by McNary, but rather the ire was aimed at McNary’s

insubordinate actions.

Therefore, as the

Court has found, McNary did not invoke his protected right to address any

safety issue vis-à-vis Emig. Further, even assuming for the moment that he did

invoke a safety issue, Emig, focused as he was on a safety issue surrounding

the event, was justifiably angered when McNary told him that he had engineered

a de facto takeover of the incident by seeking to have Grones supplant

Emig. Further, Emig rapidly regained his composure.

Further

Discussion

While McNary asserts that his 105(c) discrimination claim is distinct

from his 105(c) interference claim, his post-hearing brief speaks almost

exclusively in terms of interference. There is only a gauzy, indistinct, additional

discrimination claim. Thus, while Complainant states that a prima facie

105(c)(1) claim must show engagement in protected activity and an adverse

action motivated in any part by such protected activity, matters about which

the Court does not take issue, the question here still comes down to examining

those elements vis-à-vis McNary’s claim of interference. [33]

As set forth in the findings of fact, the Court has determined that McNary did

not exercise a protected right in his interaction with Emig. Rather, he

attempted to commandeer which management official would be in charge of dealing

with the incident.  

As mentioned, nearly all of McNary’s post-hearing brief, following the

brief’s “Facts” section, [34]

deals with his claim of interference. Thus, while McNary speaks of “threats of

reprisal” as within section 105(c) protection, in this case the elements in an

interference claim control. McNary seems to recognize this, noting that

[t]he existence of a distinct cause of action for interference was

explicitly recognized … by the Commission in the plurality opinion of Chairman

Jordan and Commissioner Nakamura in UMWA o/b/o Franks & Hoy v. Emerald

Coal Resources, 36 FMSHRC 2088 (August 2014) … vacated and remanded 620 Fed

Appx. 127 (3 rd Cir. 2015).

C’s Br. at 19

(italics in brief).

Complainant then identifies from Franks the two part test for

interference – that

a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the totality of the

circumstances, as tending to interfere with the exercise of protected rights

and [that] [t]her person fails to justify the action with a legitimate and substantial

reason whose importance outweighs the harm caused to the exercise of protected

rights.

C’s Br. At 20,

citing Franks at 2108.

As noted, the Court has determined that McNary failed to establish such

interference and that Alcoa justified Emig’s brief outburst.

Although McNary then notes that the Commission’s decision in Sec of

Labor o/b/o McGary & Bowersox et al. v. Marshall County Coal Co. et al. overtook

Franks because it represented the

view of the full Commission, McGary essentially reiterated the Franks

interference test. [35]

Complainant asserts that “the ‘harassment proscribed by the Mine Act ‘must be

determined by what is said and done and by the circumstances surrounding the

words and actions.’” Id . The Court agrees and, in line with that

approach, it has determined what was said and done and it also considered the

surrounding circumstances, all in concluding that McNary’s claim is deficient

and, beyond that, Alcoa’s action, through Emig’s words of exasperation, was

justified.

When McNary’s brief turns to its “Arguments” section, the distinction

between the discrimination claim and the interference claim remains blurred, as

McNary states that “the Act’s anti-discrimination/interference provision” is

part of the remedial nature of the Mine Act and therefore must be “liberally

construed to effectuate the Act’s safety-enhancing purpose.” Id . at

21-22. In the Court’s assessment, the Complainant is implicitly asserting that

Emig’s words alone are fatal to Alcoa. It does so indirectly, because it realizes

it is too much to claim this directly.

Although McNary asserts that Alco violated 105(c) under both a

discrimination and interference analysis, this part of its brief is simply a

repetition of its view of the facts. C’s Br. at 23-24. [36]

The Brief then transitions to citing a string of cases which stand for the

proposition that “hold that a threat of reprisal is an unlawful adverse

action under §105(c)(1).” Id . at 24 (bold in original). The problem with

that is no one is asserting that threats of reprisal are okay. Clearly they are

not. Again, Complainant’s argument seems to infer that a threat of reprisal

carries the day. However, under Commission and Federal Court of Appeals law,

the matter is more involved, as threats must be analyzed under the totality

test.

Concluding

Remarks

As

the D.C. Circuit stated, a judge is to analyze the totality of the

circumstances surrounding the statements . Such an analysis is not to be

open-ended. For that reason, looking to past events, that another miner had

been burned at the mine and that McNary himself had been injured, though

discussed supra , are not part of the circumstances surrounding the

statements . Instead, the circumstances began that day when the incident

occurred and from that point the actions and words of McNary and Emig are to be

measured. The Court, in a close analysis of those events, upon examining that

totality, has found that McNary failed to carry his burden as he did not

establish his interference claim. Nor has any other independent theory of discrimination

been established by the Complainant. In contrast, applying the same totality

test, the Court has found that Alcoa provided justification for Emig’s brief words.

Accordingly, consistent with the foregoing, the Court finds that

Complainant McNary failed to establish by a preponderance of the evidence that

Alcoa discriminated against him in any manner under section 105(c) of the Mine

Act, including under his predominant theory of interference.  Therefore this

matter is DISMISSED .

SO ORDERED.

/s/

William B. Moran

William

B. Moran

Administrative

Law Judge

Distribution:

Tony Oppegard, Esq., P.O. Box 22446,

Lexington, KY 40522

Wes Addington, Esq., Appalachian

Citizens Law Center, 317 Main Street, Whitesburg,   KY 41858

Christopher V. Bacon, Esq., Vinson

& Elkins, LLP, 1001 Fannin Street, Suite 2500, Houston, TX 77002-6760

Michael Kevin McNary, 2792 Hand

Road, Victoria, TX 77905

[1]

The facility is an aluminum refinery. The facility takes “red dirt,” which is

bauxite, and it refines it, extracting alumina from it. Tr. 46. The bauxite is

transported on belts up to the digestion area, where it is stored in bins and

from there it is fed into rod and ball mills. At that point, the bauxite is

crushed into a fine, powdery dirt. It then goes to the “25A area,” which is

also part of the digestion area, where it is introduced into caustic, by being

mixed in slurry tanks. Then it is pumped over to the dirt area, where the

incident involved here occurred. Tr. 47. At that location, the material is

heated up to a very high temperatures, in the range of 400 to 450 degrees. Tr.

47. There is no dispute that extracting alumina is hazardous in the sense that

very high temperatures are involved in that process.

[2]

Later, McNary’s counsel would ask of Delgado, when he heard Emig say to McNary

that he was going to remove him as a miners' rep, remove him from digestion,

remove him from the plant, how did he interpret that, and Delgado

responded that “when [Emig] started talking about the fact [of] removing

[McNary] from the plant, to [Delgado] that meant termination, okay. So at that

point is when I said, ‘[y]ou're not removing anybody from anywhere. What's

going on?’” Tr. 60. The Court is not sure that the question, and consequently

the response, is appropriate to consider because, as explained in the

discussion of the case law, below, the “totality of the circumstances” inquiry

is to be based on the reasonable miner reaction, not a personal opinion. Further,

even if Delgado’s response, offering his personal interpretation of the

words he alleged Emig to have uttered, may be considered, that interpretation

cannot be considered in isolation. That is, Delgado’s opinion was made without

the benefit of knowing one whit about McNary’s prior conduct nor Emig’s claim

that McNary was seeking to take command of the event by attempting to have

Grones replace Emig.

[3]

It was Delgado’s understanding that Emig called the ambulance, which is a

company ambulance that is kept on site, just in case an employee was burned or

something happened. Tr. 73. Delgado assumed that an injury of some sort had

occurred, as he saw the ambulance’s lights were on. Tr. 73-74. In response to

the Court’s comment that it assumed that Delgado would not be critical of the

ambulance being present, he responded that in fact he was critical of it. Tr.

74. As he saw it, if one has an ambulance on standby, that means the mine was

doing something they should not. Tr. 74. The Court wanted to be sure it

understood Delgado’s perspective; that he did not view it as proactive on the

mine’s part. Rather, he confirmed that he saw the ambulance presence to

indicate there was a “highly dangerous” situation. Tr. 74.

[4]

Delgado explained what he meant when expressing that the packing was blowing

out of the valve. The valve has a stem and a plug; the plug is to close the

valve, stopping the flow. The stem, when turned, opens it. Tr. 57. The stem has

packing material and this is designed so that one is protected from the process

coming out when one is working on the valve. Tr. 57. With regular maintenance,

including changing the packing, a blowout should not occur. Id . He

emphasized that because there is a high temperature and high pressure, “[i]t’s

the most dangerous spot in the plant.” Id .  Further, the material itself

is caustic and very corrosive. Id .

He added that it will “peel

your skin off.” Tr. 57-58.

[5]

As a bit of history, Delgado was present when McNary got burned. Tr. 58. Delgado

also asserted that the Tychem suits are not rated for temperature, but only for

chemicals. Id . He stated that, at 400 degrees, such suits would’ve

melted on the employees. Id .

[6]

In a similar vein, Delgado’s reference to photo 2, Ex. P 2, and testimony that

the mine tried to throw a tarp over the valve, but that the pressure was so

high that it threw the tarp off, is interesting, but not central to whether

Emig interfered with McNary. Tr. 67. The same observation applies to Delgado’s

confirmation that, on the day in question, he observed the tarps being used in

that fashion. Tr. 68. Photo 3, also from Ex. P 2, was identified by Delgado as

the valve in issue, “blowing out the processed material, the steam, the liquor

blowing straight out of the packing.” Tr. 68. Photo 4 depicts the tarps around

the valve, and the tarps are deflecting the material down. Again, the parties

do not dispute that the event was serious. However, the Court notes that a

serious event does not establish, per se, an interference claim. To the

contrary, an interference claim can be established even in non-serious matters.

The point is that seriousness alone does not end the inquiry into whether

interference occurred.

[7]

Though the dictionary does not support such use, another term used during the

hearing to describe closing the valve was to “seep” it. Tr. 20-21. It is likely

that the term intended is to “seat” a valve. This could’ve been an error on the

court reporter’s part.

[8]

Delgado was later asked about his remark on direct examination that some miners

were hesitant to refuse performing a job, even when they felt it was unsafe

because they held concerns about possible retaliation. Delgado then expressed

that their concern was they might not get flex time. Tr. 105. However, he then

acknowledged that flex time is governed by the collective bargaining agreement.

Tr. 106. He added that management retains some discretion on granting flextime,

but acknowledged that denial of vacation would be a contractual and grievance

issue. Tr. 107. Delgado concluded with the admission that it’s complicated

because management has the right to direct the workforce. Id . The Court

considers this to be an excursion from the issues to be resolved and therefore

a distraction.

[9]

Though sometimes referred to as “citations,” they were actually “orders.”

[10]

Complainant’s Brief at 14-15 recites most of the text from the section

104(d)(2) order (Order No. 8769213) and the 104(g)(1) order (Order No.

8769214). Unfortunately, Complainant’s recitation of those orders applies bold

print to some portions of those orders. The Court understands that the nature

of advocacy can sometimes involve emphasis of certain words, as Complainant did

here. However, the Court notes that, for Order No. 8769213, that had the effect

of deemphasizing that the Order stated that the “Miners state that Mr. Emig

gave the order of withdrawal from the area after the tarp was in place and the

valve seated.” Thus Emig’s name appears in the Order only with regard to giving

the order of withdrawal, not for any order to have the miners enter

the area. Driving home this point it is further noted that, earlier in the

text of that same Order, the inspector alleged, “The miners attempted to tarp

the leak but a sudden release of pressure resulted in the tarp being blown off

of the pump forcing the miners out of the area. The miners then requested

additional PPE so they could return to the pump and attempt to tarp the pump

again as well as seat the valve causing flow to the packing. Management

provided the equipment and oversight for re-entering the area of the leak.”  It

should be noted that Mr. Emig’s name was not identified for this. Emig’s

name specifically appears in the Order only to state that he gave the order of

withdrawal . The Court notes that this is consistent with Emig’s testimony

on this. In addition, Complainant’s Counsel inaccurately stated at the hearing that

Barricks’ citation accused McNary of allowing employees to go into that area .

Tr. 263.

That is not true. Most

important, the Court believes that it is fundamentally unfair to Emig and Alcoa

to let the orders operate to taint Respondent’s defense to the interference

claim, because those orders have nothing to do with that claim.  

[11]

The layoff was not peculiar to McNary as he admitted that “the majority of the

people was laid off. [sic]” Tr. 117. Only a skeleton crew remained. Id .

A lot of management was laid off too. Tr. 118.

[12]

For what it’s worth, McNary explained that a “gland is actually two pieces of

metal that -- that holds the packing back. You know, just -- the same way of

the valve that [Delgado] was explaining the packing is what holds the product

from coming out, a pump is the same way. It has packing in the stuffing box.

It's called the stuffing box. And you have a shaft that goes into the stuffing

box. And the packing is around the shaft and you have two pieces of metal. You

know, most of the pumps are ideally the same, you know. These two pieces of

metal holds the packing in and you tighten the packing to keep the product from

coming out of the pump.” Tr. 121. He added that, “[i]f that packing fails,

then, you know, you have a pump blowing out the same way the valve blew out at

the L5 area.” Id .

[13]

By “making rounds,” McNary meant checking the pumps. Tr. 123.  McNary was

making such daily rounds at the time of the January 2014 event in issue. Tr.

124.

[14]

McNary contended that the Tychem suits were inappropriate for the situation

being confronted, as they are useful only for chemical exposures, not for

situations involving hot temperatures, as here. Tr. 136-37. This assertion, the

Court notes, was yet another basis for McNary to invoke a stop job, yet he did

not do that.

[15]

Shortly thereafter in his testimony, McNary then contradicted his asserted general

passivity, stating that when Gonzalez told him “about that pump that was supposedly

to have been blowing out [he] wanted to see what pump [Gonzalez] was talking

about. So [he, McNary] veered off -- I veered off from going directly back to

the L5 area and [ ] went through the 25 area … looking for steam and slurry

blowing out, and I’m looking through the whole area. I don’t see anything.

There’s nothing blowing out.” Tr. 141-42. Not seeing anything blowing out,

McNary then went back to the L5 area. In the Court’s view, this calls into

question how pressing McNary viewed the L5 situation to be, as he was able to

make a side trip to view a claimed issue with a different pump.

[16]

As a reminder to the reader, Christopher Bacon is Alcoa’s attorney in this

case.

[17]

At that point McNary’s Counsel commented that he would like to note that McNary

raised this issue when he was acting pro se and that the Complainant, now with

counsel, had withdrawn that issue. Therefore, McNary’s Counsel, unsure where

Alcoa’s attorney was going with that issue, asserted this was no longer an

issue before the court in this case. Tr. 168. The Court acknowledged the remark

from McNary’s Counsel, but overruled the contention that the matter was not an

issue. Id . As McNary continued to assert during his testimony his theory

that Emig had sent him on a “wild goose chase,” the Court finds that, under the

totality of the circumstances, the claim certainly remained relevant to

appreciating what transpired in his interactions with Emig. Therefore, whether

strategically claimed to be withdrawn or not, it reflected McNary’s view and is

instructive in appreciating the totality of the circumstances.

[18]

Alcoa’s Counsel asked McNary, “[y]ou, in fact, went up to them and interrupted

them to tell them that you felt that you had been sent away in order to get the

tape?” McNary responded, “[y]es, I did.” Tr. 170.

[19]

Because McNary is the Complainant, he was present for all the testimony. There

is no suggestion by the Court of anything improper by that fact, but simply to

note that it is also a fact that McNary heard Delgado’s testimony before

providing his own testimony.

[20]

At the time of the hearing, Mr. Emig was working in Australia. Therefore, by

the parties’ agreement, his testimony was taken via telephone on August 15,

2017. Emig had also been deposed earlier. His first deposition, taken by

Alcoa’s Counsel, Mr. Bacon, was videotaped and that DVD was entered into the

record. Tr. 228. A separate deposition, taken by McNary’s Counsel, was also

entered into the record. Tr. 228-29. McNary’s Counsel requested that the Court

view the DVD in-chambers, as they had already viewed it. Tr. 230. Although McNary’s

Counsel then offered that the Court could view the DVD with Alcoa’s

Counsel present but with McNary’s Counsel absent, the Court declined the

offer, advising that it would view the DVD, but by itself, with neither

counsel present. Tr. 230. The Court viewed the DVD privately, with neither

counsel present.

[21]

Emig stated that a Tyvech suit is more appropriate to protect from chemicals

[22] When Delgado, Barrick,

and Medina arrived, Emig confirmed that Delgado was the person talking at the

outset. However, Barrick then spoke and Emig stated that Barrick “presented

himself to be very angry [about] the situation. He [Barrick] had made

accusations toward … [him, Emig asserting] that [Emig] had already burned five

other people from an incident that had happened the prior year. He was pretty

irate. He used some very strong language.” Tr. 253. Emig could not recall

verbatim what Barrick said at that moment, but it was “something to the effect

of, you know, ‘I don't know what you're talking about but you're not going to

send anybody in there.’ And he used some profanity. He said he wanted to know

how the canvass material got onto the valve and then that's when he stopped.

That was pretty much what he said.” Tr. 253-54. Emig

acknowledged that the incident Barrick was referring to was the event in

September 2013 involving Mr. Brown in which employees had been burned. Tr. 254.

In that regard, Emig was asked if he was supervising or directing Mr. Brown at

that time when that accident occurred. Emig answered that he “was the

department superintendent” but he “was not directing Mr. Brown.” Tr. 254. Further,

Emig stated that he had not directed Brown to do the task which injured him. Id .

Emig was present that day, but responded that the “task would have been one

of many involving the restart of that unit.” Tr. 254. On the day of Brown’s

injury, Emig “was standing inside of the unit some distance away from where Mr.

Brown was.” Id .

[23] Emig

expressed that he did not have much of a chance to respond to Barrick’s words,

but he, Emig, “listened intently and respectfully” and then at the end, his [Barrick’s]

last comment was forcefully made as he said, ‘Before you leave here today’ --

He said he -- the canvass had gotten on that valve on accident or whatever. He

said, ‘Before I leave today, I will find out how that got there.’” Tr. 256. Emig

started to explain, but Barrick didn’t actually want to hear Emig’s explanation

and Barrick ended the conversation. Tr. 256. To be blunt, the Court observes

that the MSHA inspector’s unfortunate interaction with Emig is not pertinent to

resolving this interference claim.

[24]

Although Emig agreed that McNary so accused him, McNary’s actual words were not

that Emig allowed the operators into the slurry, but rather he alleged that

Emig “ direct[ed ] those operators into that hot slurry.” Tr. 145.

[25] Regarding

the presence of the ambulance, a subject the Court considers to be another side

issue of no value to the interference claim, Emig agreed that it was Mr. Able’s

idea to call the ambulance. Able is an hourly employee. Tr. 264. McNary’s

Counsel, with Emig agreeing, noted that Emig was in charge of Able and that if

he had declined Able’s idea, no ambulance would have come to the site. Tr. 264.

Then, essentially challenging Emig’s decisions, McNary’s Counsel noted that if

Emig had decided to shut down the unit, ( which the Court notes, turned out

to be unnecessary ), there would have been no need for an ambulance, nor any

need for McNary to go look for tape. Emig responded that the Tychem suits still

would have been needed for a shutdown and restart. Tr. 265. The Court reminds

that one should not lose sight of the fact that no ambulance services were

needed, and that, essentially, Complainant’s Counsel was criticizing Emig’s

decision to be proactive when the suggestion for the ambulance was offered to

him.

[26]

McNary’s Counsel then assumed for the moment that McNary did say that he didn’t

have to listen to Emig, and, in a fanciful question, asked if McNary had called

a stop job when the valve was spewing slurry whether that would also be not

listening to him. Emig, responded, “Not necessarily.” Tr. 272-73. Trying a

similar make-believe scenario, McNary’s Counsel asked if Emig had directed

employees to go into the area and then McNary had said, right in front of Emig,

“No, you can’t go in, I’m stopping the job,” whether that would be going over

Emig’s direction, Emig again disagreed, responding that “[w]e don't view that

as going over my direction but the intent behind a stop job is that you insert

exactly that, a stopping point, to then potentially do something different. …

we do not view anybody actually exercising these stop job, as we call that as

an action, as going over my head. Tr. 273. Turning to yet another scenario,

McNary’s Counsel asked and Emig agreed that a miners’ rep does not have to

agree with Emig’s assessment of a situation. Emig also agreed that if McNary

thought a situation was unsafe and Emig did not feel it was unsafe, McNary still

has the right to express his view of the situation.  In fact, Emig took it

further, responding that such a right extends to an operator, not just to

miners’ reps. Tr. 274.

[27]

This portion of the decision represents the Court’s comments on some of the contentions

raised in the Parties’ Post-Hearing Briefs. The briefs were considered in their

entirety. The Court’s findings of fact, which deal with many of the

contentions, have been set forth earlier in this decision.

[28]

Where portions of the briefs descend into competing versions of what witnesses

said, and counsels’ retelling of what was said, there is a simple response –

the Court’s findings of fact recount what was said and, having considered the

testimony, it then makes findings of credibility where the narratives are

competing.

[29] The

D.C. Cir. rejected Wilson’s claims, except for one, holding that considering

that the miners’ rep continued his work after the incident occurred was in

error because the Secretary’s interference test is objective. The Court did

acknowledge that it is appropriate to consider the   “‘nature of [the parties’]

relationship’ and whether the respondent holds a ‘supervisory position.’” Wilson

at 882 (citing Gray , 27 FMSHRC at 10–11). In Wilson , the

employee who challenged the miner’s rep did not hold a supervisory position. Here,

Emig did hold a management position.

[30]

To avoid any understandable, potential, confusion, the Court wishes to

highlight that this case involves Mc N ary , while the name of the

Complainant was Mc G ary in Commission’s August 2016

decision. What were the chances!

[31]

Though mentioned before, the Court believes that it is important to bear in

mind that in the present case McNary did not exercise his stop job

right.

[32]

In fact, the Commission reiterated the “totality of the circumstances” approach

three paragraphs after its remark about the position of the communicator. Id .

[33]

While the Court believes that the distinction McNary now attempts to make is

without a real difference, at the hearing it was ruled in effect that both

theories would be examined. Tr. 13. They were so examined.

[34]

McNary’s Post-hearing Brief pages 18-27.

[35]

Mc G ary is useful only for the application of the interference test

because the facts in that case are worlds’ apart from those in Mc N ary.

[36]

At the hearing, the Court asked Complainant’s Counsel what damages or remedies

he is seeking should he prevail. He responded, “[a] posting, probably, at that

store. Because, for instance, there are still miners' reps at the plant right

now. Mr. McNary was a miners rep, and, of course, anytime there's a violation

of 105(c), there has to be a fine.”  Tr. 12. Attorney Oppegard agreed that the

remedy would include having the Secretary seeking a civil penalty, should

Complainant prevail. Id. Complainant would also seek “an order that

management personnel would have to undergo training on miners' rights;

particularly the rights of representatives of miners.” Tr. 13.