Secretary of Labor obo Robert Baumann v. MOSenecaManufacturer LLC dba American Tripoli

Read the official release (fmshrc.gov)

Plain-English summary

Robert Baumann served as a miners' representative and repeatedly raised safety concerns at American Tripoli's mill before the company terminated him. The judge found that his protected activity was the reason for the discharge and rejected the company's performance explanations as not credible. He separately found unlawful interference based on repeated management messages telling miners not to speak with MSHA or participate in inspections. American Tripoli was ordered to pay $32,500 in civil penalties, $9,920 in back pay, $632 in accrued interest plus additional interest, expunge the termination, provide neutral references, and post a miners' rights notice for one year. The Commission later vacated its direction for review and dismissed the review proceeding.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: Discrimination and interference violations were found, with $32,500 in penalties and make-whole relief for Baumann.
• Subsequent review: The Commission vacated review and dismissed the proceeding on January 17, 2025.
• Key point: Terminating a miners' representative for safety activity and directing miners not to speak with MSHA violated section 105(c).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

|
SECRETARY OF LABOR, MSHA obo ROBERT BAUMANN, Complainant
v.
MOSENECAMANUFACTURER LIMITED LIABILITY COMPANY d/b/a AMERICAN TRIPOLI, Respondent |
|
|
DISCRIMINATION PROCEEDING
Docket No. CENT 2023-0251-DM MSHA No. MADI-CD-2023-03
Mine: MOSenecaMfr LLC dba American Tr Mine ID: 23-00504
|

DECISION AND ORDER

Appearances:

For the Complainant: Laura O’Reilly, Esq., Elaine M. Smith, Esq., Quinlan B. Moll, Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City, Missouri.

For the Respondent, Russell Tidaback, pro se.

Before: Judge William B. Moran

This case is before the Court on a complaint of discrimination pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c) (“Mine Act” or “Act”), brought by the Secretary of Labor on behalf of Robert Baumann, against MoSenecaManufacturer Limited Liability Company, d/b/a American Tripoli. (“Tripoli,” “AT,” “Respondent”). The mine involved is MOSenecaMfr LLC dba American Tr, which mine has the ID: 23-00504.

Bringing
two Counts against the Respondent, the Secretary alleges, in Count I, that
Robert Baumann was discharged from his employment at the mine because he
engaged in protected activity while so employed.
Complaint at 2. In Count II, the Secretary alleges that the Respondent [interfered in Mr. Baumann’s rights and that of at least
one other miner, essentially by telling miners not to communicate with MSHA
during inspections. Id. at 3-4.]

Respondent asserts that it terminated Baumann’s employment for matters unrelated to any protected activity, contending that Baumann did not satisfactorily perform his job duties. Answer at 1.

A hearing was held in Joplin, Missouri from February 27 through February 29, 2024.

Based on the testimony and exhibits presented at the hearing, the Court’s credibility determinations, and the post-hearing briefs of the parties, the Court finds that by the preponderance of the evidence the Secretary clearly established both Counts and that the Respondent failed to establish any credible evidence that Mr. Baumann was terminated for non-protected activity.

The Court further determines that for Count I, the Discrimination Count, the civil penalty proposed by the Secretary, in the amount of $15,000.00, is fully warranted and that, for Count II, the Interference Count, the amount proposed by the Secretary in the amount of $17,500.00 is also fully warranted. Accordingly, both fines are imposed by the Court. As described below, the Court also awards damages to Mr. Baumann and orders other corrective action to be taken by the Respondent.

**APPLICABLE
LAW **

---

The
Source for Both Counts in this Matter Arises from 30 U.S.C. §815(c), which provides:

---

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any miner,
representative of miners or applicant
for employment in any coal or other mine subject to this chapter because such
miner, representative of miners or applicant for employment has filed or made a
complaint under or related to this chapter, including a complaint notifying the
operator or the operator’s agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a
standard published pursuant to section 811 of this title or because such miner,
representative of miners or applicant for employment has instituted or caused
to be instituted any proceeding under or related to this chapter or has testified
or is about to testify in any such proceeding, or because of the exercise by
such miner, representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this chapter.

30
U.S.C. §815(c) (emphasis added).

Commission case law has addressed both causes of action: the discrimination count and the interference count.

---

The
Basics Regarding Discrimination Under the Mine Act.

Discrimination
Claims

A complainant alleging discrimination under the Mine
Act establishes a prima facie case of prohibited discrimination by presenting
evidence sufficient to support a conclusion that the individual engaged in
protected activity and that the adverse action complained of was motivated in
any part by that activity. See Secretary of Labor on
behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799 (Oct. 1980)

[Secretary of Labor on behalf of Hyles,]21 FMSHRC 34, 42 (Jan. 1999).

• *

A
Change Occurs in one Circuit Court[1]

---

In
2021, the United States Court of Appeals for the Ninth Circuit ruled that a
“but for” analysis applies in discrimination claims under the Mine Act. Thomas
v. CalPortland Co., 993 F.3d 1204, 1211 (9th Cir. 2021). The decision
looked to the language in Section 105(c) of that Act, determining that
section’s text, prohibiting discrimination by a mine operator “because” the
miner engaged in protected activity, means that, to prevail, the miner
complainant must show that the discrimination would not have occurred “but for”
the protected activity. Id. In
holding that “because” means “but for,” the decision held that “the word
‘because’ in a statutory cause of action requires a but-for causation analysis
unless the text or context indicates otherwise.”[2] *Id. *

---

---

---

---

Then,
Another Circuit Follows that Change, with the Secretary of Labor’s Apparent
Blessing

Subsequently, the Eighth Circuit, in a
separate Mine Act discrimination proceeding, noted that the Secretary of Labor
took the position that the Mine Review Commission’s traditional approach indeed
requires but-for causation, and she proceeds to argue the case with that
understanding. So we will, too.” Cont’l Cement v. Sec’y of Labor, 94 F4th
729,733 (8th Cir. Feb. 28, 2024). The Eighth Circuit includes
Missouri.

**The Commission Issues its Decision Upon Remand in Calportland on March 1, 2024. **

Speaking to “But-for Causation,” the Commission noted that:

[a]ccording to the Ninth Circuit, the Supreme Court has instructed “that the word ‘because’ in a statutory cause of action requires a but-for causation analysis unless the text or context indicates otherwise.” (citation omitted) … The Supreme Court has explained that the ordinary meaning of “because of” is that the protected activity or class was the “reason” the employer decided to act. (citation omitted) Under the but-for standard the plaintiff retains the burden of persuasion and must prove by a preponderance of the evidence (which may be direct or circumstantial), that the protected activity was the “but for” cause of the challenged employer decision.

Calportland 2024 WL 1012573 at * 3 (Mar. 2024).

Interference
Claims

---

It
is arguable that the proper test for analyzing section 105(c)(1) interference
claims is the two-step framework adopted by two Commissioners in UMWA on
behalf of Franks and Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088,
2108 (Aug. 2014) (sep. op. of Chairman Jordan and Comm’r Nakamura) (“Franks”).
38 FMSHRC at 946-48. Secretary of Labor on behalf of Greathouse, 40
FMSHRC 679, 683 (June 2018) (“Greathouse”).[3]
The first step of the

In Secretary on behalf of McGary, 38 FMSHRC
2006 (Aug. 2016), under the heading “The Appropriate Test for Interference,”
the Commission remarked:

In evaluating whether the miners here
had established interference with their statutory rights, the Judge applied the
two-step test articulated by Chairman Jordan and Commissioner Nakamura in their
opinion in UMWA on behalf of Franks and Hoy v. Emerald Coal Resources, LP,
36 FMSHRC 2088, 2104-19 (Aug. 2014) (hereinafter “Franks interference
opinion”). See 37 FMSHRC at 2603-08. The test, suggested by the
Secretary in his amicus brief in that case and drawn from National Labor
Relations Board precedent, 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.

Id. at 2011.

The decision by the United States Court of Appeals for
the District of Columbia Circuit in Marshall Cnty. Coal Co. v. Fed. Mine
Safety & Health Rev. Comm’n, 923 F.3d 192 (D.C. Cir. 2019) (“Marshall
Cnty”), is also useful when considering interference claims. There, the
D.C. Circuit upheld the Commission’s determination that the operator interfered
with miners’ statutory rights to raise anonymous health and safety complaints
with MSHA. That case involved miners invoking their statutory rights under
section 103(g)(1),[4] but the interference complaints can be
based on any other statutory rights of miners.

The D.C. Circuit noted that “Congress recognized that
its national mine safety and health program would be most effective if
miners and their representatives contributed to the enforcement of the Mine
Act.” Marshall Cnty. at 195(emphasis
added). This
includes “the right to point out hazards.” Id. at 196 (emphasis added). Accordingly, the Mine Act “specifically
protects miners and their representatives against retaliation and interference.
Id. (emphasis added). As noted above, the Mine Act specifically
provides for this protection. 30
U.S.C. §815(c).

The D.C. Circuit referred to the
application of the Franks test, which was applied by the administrative
law judge and later by two members of the Commission. In that regard, it noted
that under Frank:

an interference violation occurs if (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[.] Franks, 36 FMSHRC at 2108 (opinion of Jordan,
Chairman, and Nakamura, Comm’r). Unlike the test for discrimination claims
under Section 105(c)(1), the Franks test for interference does not
require a finding that the employer was motivated by miners’ exercise of their
protected rights.

Marshall Cnty at
199 (emphasis
added).[5]

In the case before this Court,
Sec. obo Baumann, it is not necessary to determine if the alleged
interference was motivated by Baumann’s exercise of his protected
rights, because, as described below, the Court finds several instances of
substantial evidence supporting its conclusion that American Tripoli interfered
with Baumann’s statutory rights. Nevertheless, the Court does find that Tripoli
was so motivated.

Substantial Evidence

Apart from the new “But for” approach, it is important to note that:

[u]nder the Mine Act, an administrative law judge’s
findings of fact are to be affirmed if they are supported by substantial
evidence. 30 U.S.C. § 823(d)(2)(A)(ii)(I); Secretary of Labor on behalf of
Price v. Jim Walter Resources, Inc., 14 FMSHRC 1549, 1555 (Sept. 1992). In
addition, the Commission has held that “the substantial evidence standard may
be met by reasonable inferences drawn from indirect evidence.” Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984). The “possibility of
drawing either of two inconsistent inferences from the evidence [does] not
prevent [the judge] from drawing one of them.” NLRB v. Nevada Consolidated
Copper Corp., 316 U.S. 105, 106 (1942). The Commission has emphasized that
inferences drawn by the judge are “permissible provided they are inherently
reasonable and there is a logical and rational connection between the
evidentiary facts and the ultimate fact inferred. Mid-Continent, 6
FMSHRC at 1138.

Secretary
of Labor on behalf of Hyles, 21
FMSHRC 34, 43 (Jan. 1999).

The Court finds that applying the “but for” test, Complainant Baumann, through the Acting Secretary, overwhelming established his discrimination. Further, the Respondent demonstrated nothing to show otherwise. To put it plainly, all as described below in the Findings of Fact, there was only one credible conclusion from the evidence in this matter: American Tripoli acted as it did because Mr. Robert Baumann exercised his statutorily protected rights against discrimination under the Mine Act. Equally clear, the Respondent interfered with Mr. Baumann’s rights and that of at least one other miner, essentially by telling those miners not to communicate with MSHA during inspections, and otherwise intimidating its miners from free exchange with MSHA’s inspectors.

Findings of Fact and Related Conclusions of Law.

Complainant,
Robert Baumann, was called by the Secretary. Baumann’s complaint alleges that
he was terminated for participating in MSHA inspections and trying to stand up
for the miners’ rights. Complaint at 2-3. He asserts that Russell Tidaback,
Jordan Tidaback[6], and John Spears were the individuals who
discriminated against him. Vol. 1 Tr. 46. Baumann stated that Russell Tidaback
is the owner of American Tripoli.

Baumann
was hired as production supervisor and was informed that the mine’s computer
system reflected that as his job designation. Id. at 53, 99. That
remained his job title during his employment at the mine. Id. He worked in
the mill at the mine.[7] The mine produces “tripoli” and this explains the apt
name for the company, American Tripoli. Baumann described the product as ground
up rock, that ends up as powder.

As
noted, on April 17th, Baumann was terminated from American Tripoli. Id.
at 47. On that day he received a text message to be at the mine office and,
upon arriving, was given his termination letter. Id. at 47-48. Ex. P-38.
According to Baumann, Spears told him at that time “Sorry. Russell [Tidaback]
told me to let you go.” [Id. at 48]. Baumann
also spoke that day with the mine’s safety director at that time, Jesse Molesi,
who also informed that the mine had fired him.

Mr.
Baumann denied that he was having any performance issues at the time he was
terminated. Id. at [51. Importantly, Baumann
affirmed that he had not been disciplined or told that his job performance was
lacking prior to his termination]. Id.

In
the weeks before he was fired, Baumann informed that there had been an MSHA
inspection at the mine. Id. Explaining
the circumstances for MSHA’s presence, Baumann stated that there had been air
tests at the mine, and after receiving those results MSHA issued some citations
based on those test results. Id. at 51-52. The mine was told to get PAPR[8] systems and to work on the clean air system in the
building.

Baumann
agreed that he participated in an MSHA inspection around April 12, 2023. Id.
at 57-58. He also participated in an earlier MSHA inspection involving air
sampling. Id. at 58. The dust issue involved silica dust. Id. [Baumann stated that he had raised safety concerns to mine
management about that dust. Id. He also stated that, following MSHA’s
issuance of a 104(b) order for the dust hazard, he raised concerns about the
dust issue with management “[e]very day.” Id. at 60. He raised these
concerns with John Spears and Jesse Molesi. Id. The concerns were not addressed
before his termination.]

[Regarding the 104(b) withdrawal order and Baumann voicing
his concern that miners were due to be paid as a consequence of the order, he
spoke with both Spears and Molesi about this subject. Id. at 61-62.]An
MSHA inspector confirmed to Baumann that miners would be entitled to pay.

Baumann
was hired at Tripoli by Christine Schreiber, who was then the operations
manager. Id. at 66. Then, not long after he was hired, Schreiber left
and John Spears became his supervisor at Tripoli. Id. at 67. According
to Baumann, Spears was in charge of day-to-day operations at the mine. Id.
at 69. Mr. Spears role at Tripoli is not contested.

Baumann
communicated with Mr. Tidaback in person and through a messaging application,
“Microsoft Teams.” Id. at 67-68. (Hereinafter, Microsoft Teams Chats, or
Teams Chats or Chats) Baumann also knew that Spears was communicating with
Tidaback. Id. at 70. When Baumann raised safety or health issues, Spears
told him that he, (i.e. Spears himself) would need to contact Tidaback. Id.
at 69-70.

During
his employment at Tripoli, Baumann was initially hired to work the second
shift. Id. at 70-71. In that role, he was tasked with loading the 2,000
lb. bags of the tripoli product, while the day shift prepared 100 or 50 lb.
bags. Id. at 71. This was part of production and his hours were from 4
p.m. to 11 p.m. Id. When he began the night shift there were three
employees, but then a maintenance employee was fired, leaving two miners
working. Id. at 72.

Thereafter,
Baumann then moved to the day shift. Id. He asserted that the night
shift work ended, as many of the bulk orders had been completed and because the
machinery was breaking down from high use. Id. at 72-73. [According to Baumann, Mr. Tidaback, Mr. Spears, and Ms. Christine
Schreiber all gave him ‘attaboys’ for his night shift work. Id. at 73.]Once
moved to the day shift, his hours were then from 8 am to 4 pm.

Asked about
miner training, Baumann informed that Tripoli did provide some training,
stating, “[a]bout two weeks after we started we had about a 30, 45 minutes,
like, went through safety stuff.” Id. at 81. Ex. P-40 is Baumann’s
record of his New Mining Training Certificate, dated July 5, 2022, which he
signed while working at American Tripoli. Id. at 82. However, though he
signed the certificate on July 5th, Baumann stated that in fact he had not
received all the training listed on the certificate.[10]Id. at 85.

According
to Baumann, he didn’t know initially about MSHA inspections that occurred
during November 2022 at the mine. Vol. 1 Tr. at 91. He only became aware of
these around February 2023 when MSHA told him that the mine had not corrected
the cited conditions. Id.

There
was certainly ample means to communicate with one another at the mine. As
Baumann informed, there were groups of American Tripoli employees communicating
with each other on Teams. Id. at 92. There were multiple communication
groups different categories such as a maintenance group, a general group, a
mill management and a production group. Id. People could also
communicate individually. Id. at 92-93. Baumann was able to communicate
with John Spears this way too. Id. at 93. In contrast, he described his
communication with Mr. Tidaback as occurring only “on occasion.” Id. However,
Baumann informed that Tidaback would be able to view messages sent through
Teams. Id. Baumann used Teams and he stated that he was never told that
he failed at using Microsoft Teams effectively while working at American
Tripoli. Id. at 94.

For
background, the Court inquired of Baumann to describe his work at Tripoli.[11] He was hired to do production and was the lead over
production from his first day to the day he was terminated.

It is accurate to note that during the relatively short time of Baumann’s employment there was a great deal of employee turnover for maintenance. This is instructive in understanding this operation.

Baumann
asserted that no one at Tripoli ever told him he had to meet a certain
production quota. Id. Specifically, Baumann denied that Mr. Tidaback
ever told him he had to meet a 40,000 pound daily production quota. Id.
at 106. Baumann maintained that he never spoke with Mr. Tidaback or Mr. Spears
about meeting production quotas or goals and further that he was never
counseled for not meeting production demands. Id. To the contrary, he
was given positive feedback regarding the production he was able to achieve
from John Spears. Id. at 106-107. Baumann stated that the praise came
about a month before he was fired. Id. at 107. Baumann also stated that
the 40,000 lbs. per day goal was not realistic due to equipment and weather
issues, among other reasons. Id. at 108.

Baumann
informed that John Spears was the operations manager. [Id.
at 109]. As such, Baumann asserted that Spears had the ultimate authority as
to the amount of production at the mine.

It
is noteworthy that shutdowns occurred not simply due to operations problems. Baumann
informed that the local Chief of Police for Seneca came to the mill due to mill
dust reaching the city. Id. at 112-113. He claimed such shutdowns
occurred on three or four occasions. Id. at 113. On one occasion,
according to Baumann, the sheriff threatened to arrest everyone if the dust
problem was not corrected. Id. Then too, MSHA shut down the mill
multiple times, Baumann informed. Id. at 114.

The
Secretary then inquired about Baumann’s role, if any, regarding safety. Id.
at 134. Baumann informed that he was never in charge of safety while at
Tripoli, nor was he given any training on that subject by Tripoli. Id. Further,
he was never tasked with ensuring that the mill was complying with MSHA
standards. Id. at 135. Baumann informed that out of the 10 months of his
employment for at least 3 or 4 of those months there was no one employed with
the role of safety at Tripoli. Vol. 1 Tr. at 136. During those time when no one
was employed for that, John Spears would be in charge of safety. Id.

Essentially,
Baumann asserted that employees were inattentive to safety issues until MSHA
started with its inspections and began issuing citations. He stated that when
safety issues were raised, the Mill often did not have the material to repair
items or were prevented from taking such action when production would be
impacted. Id. at 137. When safety issues were raised to Spears, Baumann
informed that, unless the issue would shut down operations, they were to keep
running. Id. at 138-139. Baumann also contended that he was unaware of
any written safety procedures and never provided with such. [Id. at]139.

Baumann’s
duties did include keeping track of the hours that miners worked. Id. at

140. He was never told that he was failing at that task. Id. at 140-141.
     Handling shipping and receiving paperwork were also part of his job duties, and
     for this responsibility too, he was never told of issues with his performance
     for this duty. Id. at 141. In contrast, mill product and production
     supply inventory were not part of his duties. Id. Though on occasion
     Baumann sent employees home early, it was always after receiving approval from
     Christine Schreiber or John Spears. Id. at 143.

Questions
then turned to MSHA inspections at Tripoli. Id. at 148. Ex. P-21
references the mine’s ID: 2300504, and it lists several MSHA inspections at the
mine. Id. Part of that exhibit refers to “verbal hazard complaints.” Id.
at 149. Baumann informed that during February through April 2023 MSHA
inspections, he walked around with MSHA on multiple days. Id. at 150. Baumann
confirmed that Spears was with him during some of those MSHA inspections and
that Spears also observed him with MSHA inspectors. Id.

Ex.
P-8 is a Microsoft Teams message sent from Spears to Gage Wheeler. Baumann took
a screen shot of the message using his phone. Id. at 151. The exhibit,
which is dated February 14, 2023, reflects that Spears and Mr. Tidaback were
part of the message and that Gage Wheeler is also referenced in it. Id.
at 152. The message states: “Gage Wheeler, do not answer any questions about
the -- that the MSHA inspector may have. Do not go into the mill. I'll be the
person who talks to me [sic] inspector.” Id. at 154 (emphasis
added). Baumann identified Wheeler as the maintenance person at that time. Id.
Baumann, quite reasonably in the Court’s view, understood the message to convey
that the employees were not to speak with MSHA. Id. Baumann’s
recollection was that he and Wheeler walked around with the MSHA inspector on
the February 14th inspection. Id. at 155. Ex. P-9 is a Teams Chat from
the same time. Participants in that Chat would have been Baumann, Gage Wheeler,[12] Russell Tidaback, Jordan Tidaback, and John Spears.

The
Court finds that those messages were plainly to warn the employees, improperly,
that they were not to speak to MSHA. Even a follow-up Teams message from Jordan
Tidaback was improper, when she expressed “Hi, Gage. We spoke with John about
that. You are absolutely allowed to answer questions the MSHA inspector has
(obviously). I think John [Spears] may have meant don't just go up to him and
point out everything under the sun. We've had people doing that, knowing very
well it's an issue being worked on.” Id. at 167; Ex. P-10.

Ex.
P-13, consisting of 467 pages, reflects Team Chats. It was produced by the
Respondent through MSHA’s discovery. Id. at 170. Baumann was a
participant in the February 14, 2023, MSHA inspection. Id. at 173. As part
of messaging for that day, he wrote: “IDK. This guy is out for blood. We are
removing product from the floor now.” Ex. P-13 at page 54.
Baumann explained his message, stating that the MSHA inspector was:

very unhappy that nothing had been done that we were supposed to be doing.
[Baumann] asked him, … what do we need to be doing to make this right … [and
Baumann learned that the inspector … was talking about some product that was on
the floor in front of an electrical box and then an oil dam that was underneath
the tube mill.

Id. at 173-174.

For
context, Baumann explained that the inspector was referring to prior citations
that had not been abated. Id. at 174. However, Baumann told the
inspector he was unaware of the prior citations. Id. at 174-176. The
upshot was that the MSHA inspector shut the mill down. Id. at 177.
However, on page 30 of that exhibit, Baumann was told it was unnecessary to
shut down the whole building. Id. at 195. Instead caution tape was used
around the affected area. Tr. 195. Baumann stated that the hazard was
not remedied until about two weeks later. Id. This example epitomized
Baumann’s view that he was often told to do something in response to a safety
concern that did not actually fix the issue at hand. Id. at 196. Baumann
cited other examples of inadequate responses to his safety concerns.[13]

Baumann
confirmed that his Chat message reflected there would have gone to all in the
Mill group Chat. Id. at 191. Mr. Tidaback was part of that group. Id.
The issue there was described as “[s]weeping up by palletizer and we have live
wires coming through the floor. Sparked through the broom, shutting this area
off.” Id. at 192. Baumann wanted the power cut to the whole building for
this issue because “none of the breakers were labeled, so we didn't know what
was energizing that wire. You couldn't tell where it was going into what.” Id.
at 193; Ex. P-13, at page 31.

There
were other, safety-related issues,[14] raised by Baumann. One such instance involved a
safety-related concern involving stacking 100 lb. bags of product too high. Vol.
1 Tr. 187. Next was Ex. P-13 reflecting a message from Baumann which he sent to
the Mill Group.

In
the same exhibit, P 13, at page 314, that page reflects a message from
Tidaback, stating: “Did all the mill associates[15] get their 40 hours this week. If not, John Spears, maybe they will
want to come in and work some hours over the weekend to get these repaired.

Ex.
P-12 pertains to an MSHA inspection which began on March 28, 2023, and
continued through April 10th, and for which Baumann participated. Id. at

211. Ex. P-12 is discovery American Tripoli produced.[16] At page 18 of this exhibit, a message dated March 31st from Mr.
     Tidaback states: “

Continuing
with page 19 of Ex. P-12, Baumann again identified the page as from Mr.
Tidaback in a message dated March 28th to Jim Huber,[17] who was a mill associate.

Regarding
an MSHA inspection that began on April 11th, six days before Baumann was fired,
Baumann affirmed that he participated in that inspection. Id. at 223;
Ex. P-21. A 104(b) order was issued that day. Id. Spears was aware that
Baumann had participated in that inspection. Id. at 224. Ex. P-31, a
screen shot, dated April 12th, mentions Baumann, and it is a screen shot sent
to John Spears. Id. at 224-226. This communication refers to Baumann
stating to Spears that employees would have to be paid because of the shutdown.
Id. at 225. Respondent produced this information in response to a
discovery request. Id. at 226. Baumann, sent home as a consequence of
the withdrawal order, did not return to the mine until April 17th on which date
he was terminated. Id. at 227.

For context, Baumann sent this message on April 12th,
stating “Good morning crew. We will finish SO 325 this morning. Everyone did
very well yesterday with pallets and color bearing and staging product. Thank
you.” Id. at 227. John Spears was included in the message. Id.
The 11th of April was the last day Baumann worked at the mine before the MSHA
shutdown. Id. at 228.

Ex. P-7 is a message Baumann sent to Spears, referring
to the MSHA Handbook. Id. It was sent following the issuance of the
104(b) Order. Id. at 229. The portion sent from the Handbook referred to
miners’ pay when there is a shutdown. Id. at 230. Baumann never received
a response to this. Id. at 231. Baumann sent the message following the
April 12, 2023, withdrawal order. Id. at 232.

At any rate, the Secretary then returned to Ex. P-32,
and April 14th within that exhibit, which was in the same time frame as the
remark about miners being paid for work lost due to the (b) order, Mr. Tidaback
states “Rob's termination will[18] be based on production performance. Not following
guidance given by management. Not ensuring the safety of the mill associated by
utilizing the proper controls, etcetera. He doesn't have to sign it.

The Court finds this remark clearly displays that Tidaback was aware that he needed to create a basis to justify Baumann’s firing, a basis he did not then have.

In light of that, Baumann was asked if he “[h]ad []
ever been told [he] w[as] having issues with production performance before [he
was] terminated,” to which he answered “No.” Id. at 246. He also denied
that he had ever been told he was “having issues with not following guidance
given by management before [he was] terminated,” and denied that he had ever
been told that he was “not ensuring the safety of the mill associates before [he
was] terminated.” Id. at 246. In fact, Baumann
affirmed that, regarding the safety issue, he had been trying to ensure the
proper PPE would get purchased specifically for the dust issues going on at
this time. Id. Baumann asserted that he “checked with the safety
director, Jesse Molesi, every day to see if the systems had been ordered or if
they were on their way, if they were there yet.” Id. at 247-248.

In a sense, the following exchange by the Secretary
with Mr. Baumann amounts to a summary, as Baumann affirmed that Tidaback was
sending e-mails with different options on what kind of face filters the mine
could get ordered, and that Molesi informed Baumann about those emails and all
of this occurred on the Friday before Baumann was fired, April 14th, with his
termination occurring on April 17th. Id. at 246-250. Further,
it cannot be ignored that his firing occurred three weeks after he became the
miners’ rep, and within days of his raising the issue of miners’ pay, following
the MSHA withdrawal order. Id. at 250-251. It was only five days after
he participated in an MSHA inspection which resulted in the mine being issued a
104(b) order regarding dangerous silica dust hazards. Id. at 250. Baumann
concurred that the 104(b) order was issued for not controlling dangerous silica
dust, a safety issue which he had repeatedly raised to management. Id.
at 251. Also, Baumann agreed that his termination happened just two weekend
days after he had been messaging with the safety person, Jesse Molesi, about
his concerns with the dust. Id. Baumann asserted that every time MSHA
inspectors were on the site he was with them. Id. at 254.

Ex. P-34 consists of additional discovery from the
Respondent, involving some 56 pages. At page 15 of the exhibit are Teams
Messages with Jim Huber from April 17-May 7, 2023. In the message for April
17th, Mr. Tidaback stated, “[u]nfortunately, we had to let Rob [Baumann] go
today.” Vol. 1 Tr. 259. On April 19th Tidaback’s message states: “MSHA just
compounds the problem 10 X but not working with us and being fucking dicks.”
Id. at 260, (emphasis added). Baumann agreed that Tidaback made similar
statements about MSHA. Id.

On
the same date, Tidaback stated “[t]his [MSHA Inspector] Keith [Markeson][19] jackass... he gets his jolly off handing out
citations... this fucker is a snake. When he is -- when he's around you better
watch what you say and do... he is out to fuck you or anyone else he can.” Id. at 261. And, in the same exhibit,
Tidaback states: “Everyone needs to stop calling MSHA.” Id. at
265, (emphasis added).

Baumann
affirmed that such remarks from Mr. Tidaback made him fearful about talking to
MSHA. Id. at 265. However, in contrast, Baumann made clear that he was
not scared of MSHA inspectors, nor did any inspector ever threaten him. Id.
at 266.

In
another message, this one on April 28th, from Tidaback to [Mill
employee Jim] Huber, Tidaback stated: “We need you to make that place rock and
roll. I need the justification since Rob's complaint to MSHA about being let
go... Just need you to put the cherry on the cake. That's all.” Id.
at 267, (emphasis added).

Baumann
affirmed that he started to raise more safety complaints in February 2023,
which coincided with his walking around with MSHA during inspections. Id.
at 268. Baumann stated that he raised such safety issues to Spears, the
operations manager for the mill. Id. at 109, 269.

Ex.
P-12, at page 23, pertains to a message, in July of 2022, from Tidaback to the
group Teams Chat, wherein he states: “and if you are asked a question by the
[MSHA] inspector, keep your answer short and simple. Don't be that guy Cameron
LOL that thinks he knows it all and starts pointing out all the faults,
etcetera. …I only named John Cameron since he doesn't work with us any longer.”
Id. at 272- 273 (quote edited by the Court to remove extraneous parts).

Ex.
P-11 also involves Teams messages. Baumann affirmed that Spears made comments
about not speaking to MSHA and not trusting their inspectors. Id. at

276. A message from Spears dated April 14th evidences this, with Spears
     remarking, “I'm telling you guys... Keith [Markeson] is a snake... be
     cautious on what you say to and around him . Any MSHA inspector really.”

Respondent’s
cross-examination of Mr. Baumann was conducted by Mr. Tidaback. Baumann agreed
that the administrative building, providing offices for John Spears and a
safety person, is a separate building from the mill but it's very close, separated
just by probably 20 feet. Id. at 295. The mill itself consists of a four
floors. Id.

Directed
to Ex. R-I, titled, ‘Production lead duties,’ Baumann could not identify it as
a document he had seen before. Id. at 300-301. With some differences as
to the proper title for his position, Baumann stated he was hired a “[production supervisor” when asked by Tidaback if he was
the “production lead].” Id. at 302. Baumann considered the terms to
be roughly synonymous. Id. at 303. However, as to Ex. R-I, Baumann
recognized some items within that exhibit as part of his duties, but not
others. Id. He added that he never received training for those duties. Id.
Referred to Ex. R-J, Baumann informed he had never seen that exhibit either.[20]Id. at 304.

Baumann
denied reading the employee handbook, adding that he never got one. Id.
at 315-316. He also denied any instructions or feedback about his work from his
boss at Tripoli, Christine Schreiber. Id. at 320-323. Baumann did agree
that there were instances where he had disagreements with Schreiber and Spears
which led to raised voices by him, but this was an expression of frustration,
“yelling about a situation with [his] boss.” Id. at 323-324. He denied
that anyone ever claimed he was creating a hostile work environment by, in
Mr. Tidabacks’ words, “screaming, getting mad or walking off.”[21]Id. at 325.

When
asked about receiving new miner training, Baumann stated “No. Not the full -- I
didn't realize that it was supposed to be 24 hours or whatever, until months
into my employment, until the lady came and did the refresher course.” Id.
at 333. The Respondent tried to make much of the fact that Baumann signed his
training certificate, contending that he should not have signed it, given his
testimony that he did not receive all the new miner training. Id.;
Proposed Exhibit R-L; Ex. P-40.[22] Baumann did agree that he received annual refresher
training.

More
importantly, Tidaback stated that the whole business about the training form
certificate was not a basis for firing Baumann.[23]Id. at 340-341.

At
that point in the hearing the Court spoke to what it identified as the central
problem for the Respondent, namely that it seemed to the Court “that at the
time that you decide[d] to discharge Mr. Baumann you would have, of necessity,
had some sort of record established prior to discharging him as to the grounds
for his discharge.” Id. at 343. Mr. Tidaback concurred, stating
“Correct.” Id. The Court then noted that it didn’t “know of any exhibit
thus far that identifies [Baumann’s] deficiencies such as that would warrant
your [Mr. Tidaback] firing him, regardless of protected activity.” Id.

One
of Respondent’s contentions, which was not testimony, but only Mr. Tidaback’s
assertion before he testified, was that Tripoli hired several people to
replace Baumann. Id. at 345. The Respondent’s theory was that
Baumann “would have been fired in any event for his lack of adequate job
performance, [but the Court noted] that would have had to have been detailed
chapter and verse before [the Respondent made] the decision.” Id.

The
Court then commented that it seemed to it that there was, at that point in the
hearing, no record that the Respondent had demonstrated, such inadequate
performance by Baumann, adding that if the Respondent was trying to demonstrate
that shortcoming by people it hired after Baumann was fired, that did not get
Respondent there. Id. at 344-345.

Summing
up its observation, the Court informed that the Respondent would need testimony
or other evidence that Baumann would have been fired in any event for his lack
of adequate job performance, and that would have had to be detailed, chapter
and verse, before Respondent made the decision. Id. Mr. Tidaback
agreed that Respondent’s goal was to establish that, apart from any protected
activity, it would have fired Baumann anyway. Id. at 346.

On the subject of daily safety inspections, Baumann stated
that he didn’t hear anything about doing those “until the MSHA inspector
started asking for them. I never got trained. I never heard one -- not one word
was ever said to me [about that] until it became an issue with MSHA.” Id.
at 365.

Respondent
next brought up Exhibit R-P, about which the Court noted that exhibit has a
“citation to MSHA[’s] guide to equipment guarding tips. This is dated 2-14-23.
So that's near the end of Mr. Baumann's employment.” Id. at 366. Mr.
Tidaback agreed with that description. Id. Attempting to testify, but
not yet sworn in, Mr. Tidaback asserted the exhibit refers to refresher
training. Id. at 367. However, the Court noted that there was nothing in
that proposed exhibit indicating that there was prior guarding training. Id.
at 368. The Court emphasized that there was nothing in that proposed exhibit to
indicate that prior to 2-14-23 there were instructions from Tidaback to people
about guarding.[24]Id. at 371-372.

Next
was Respondent’s Ex. R-C. Baumann agreed that he did daily workplace exams, and
that part of his workplace exam responsibilities was to look for hazards before
his shift started. Id. at 376-377. That proposed exhibit reflects dates
from March 3, 2023, through April 7, 2023. Id. at 378. Baumann stated
that he did not recognize the exhibit. Id. Baumann, it will be recalled
was fired on April 17, 2023. Id. at 379.

Mr.
Tidaback then referred to Exhibit R-D, which reflects a violation issued to
Respondent during the time Baumann was an employee. Id. at 392. It
pertains to guarding, housekeeping, and workplace exams. Id.
Essentially, Tidaback was asserting that these were Baumann’s responsibility
and that, as MSHA issued citations on these subjects, it showed that Baumann
wasn’t doing his job. Id. at 392-394. However, it was then disclosed that
Respondent created the exhibit, not MSHA. Id. at 395. As the
Respondent had no witness at that time to identify Exhibit R-D, it was not
admitted. Id. at 396. The Respondent never moved to have the exhibit
admitted later in the proceeding.

Another
problematic assertion from the Respondent is its claim that it hired four
people so that Baumann could then be terminated. Id. at 400-401. The
Court voiced its concerns about this claim stating:

This doesn't -- to me this doesn't make sense that you're saying that you decide to terminate Mr. Baumann months before, and you hire four people to effectively do the job that he wasn't doing sufficiently, and yet there's no record of -- written record or Microsoft Teams even between just you and Mr. Spears or your daughter saying we got a real problem here. You haven't laid a foundation for what causes you to hire these other people, and of course, we haven't heard from those people, but this is not adding up. It sounds -- I know you blanch when I use the expression, but backfilling. It sounds like you're trying to look back and create reasons, from what I have heard so far, to discharge him as opposed to we had this problem and this problem and this problem, and then [you] hired four people but [you] had to keep Mr. Baumann on. Bad a job as he was doing, because someone had to teach him how to do it. Are you really suggesting that?

Id. at
401-402.

Amazingly,
Mr. Tidaback agreed that he was keeping Mr. Baumann on for the purpose of
having the replacement employees learn the job from him. Id. at 402. Tidaback
agreed, stating, “[s]o we can terminate Mr. Baumann. Correct.” Id. Thus,
Respondent was claiming he wanted Baumann, who he is claiming was doing a poor
job to stay on, while needing him to remain on the job so that he could train
the replacement people. Id.

---

** The Respondent’s cross-examination of Mr. Baumann
continued on the second day of the hearing. Baumann was directed to Ex. R-A,
referring to the bottom of page 10, and Jim Huber, at 5-7- 2023 at 2:01 p.m.
Vol. 2 Tr. 14, 16. Baumann noted that the message was made after he had
been fired. Id. at 15.

According
to Mr. Tidaback, Ex. R-A represents a communication between him and Mr. Huber. Id.
at 16. The Secretary objected to its introduction, stating that it is a
redacted version of Ex. P-34, at page 15. Id. at 17-18. Nevertheless,
the Court admitted Ex. R-A. Id. Still, this exhibit was of no real
moment, as Baumann agreed that Huber stated there was yelling and screaming
going on among Huber, Spears and Baumann. Id. at 19. Baumann agreed that
things got loud, arising out of issues such as the need for parts, but that he
was never confrontational. Id. at 19. Baumann agreed that his manager
was to make decisions about needs at the mill, but he added that no one ever
spoke to him about raising his voice and, if that had occurred, he would never
have raised his voice again. Id. at 22.

Mr. Tidaback tried, without success in the Court’s view, to show indirectly that Baumann was not doing his job. Most of his questions pertained to matters not relevant to this discrimination matter.

The Court then addressed the evidentiary problem, explaining:

what's missing is if [Mr. Baumann] were deficient, as you allege here, there would be a record of that. Not just through Team chats, but the normal course of business is when an employer is unhappy with their employees, those employees get notified of it. … [the employer has] to advise that [the employee has] to make certain corrections or something more serious will come down.

Id. at
51-52.

Mr. Tidaback conceded that nothing along that line had
been presented up to that point in the hearing. Id. at 52.

After
sustaining an objection to a question from Tidaback in which he asserted that
Baumann never communicated safety concerns, the Court rephrased the question
for him, inquiring of Baumann if he ever raised safety issues to Mr. Tidaback
or to Mr. Spears. Id. at 79. Baumann identified safety concerns he
raised to management. Id. at 79-80; Ex. P-14. It is noted that Baumann
had mentioned these issues in earlier testimony.

Baumann asserted that he was being treated differently after raising safety concerns, stating:

Just like I testified yesterday, I felt like I was being left out of Team chats, and any concerns that I brought up were, in my opinion, being blown off or ignored … [in that his] my name was not being tagged in any of the Team messages. If I brought a concern across, taking a picture of something, I never got answered, in my last two months … prior to being terminated [though he agreed that he was still in the group chat].

Vo1. 2 Tr. 86.

The
Court then inquired of Mr. Baumann, if he
ever received a warning, oral or written, from Mr. Spears, that his job
performance was inadequate, whether he ever received an oral or written warning
from Mr. Tidaback or any other person in management that he was not performing
his job adequately and whether he was ever given a warning that he was on some
sort of probation. Id. at 100-101. The Court added that it wasn’t using
those terms “in a legal sense, but rather if he was
advised that if his job performance did not improve he would be terminated.” Id.
at 100. Mr. Baumann answered “No” to each of those questions. Id. at
100-101. Further, when asked if management had ever called to his attention
deficiencies in the performance of his job, he also answered “No.” Id.

Mr. Gage Wheeler was then called by the Secretary. Id.
at 126. Wheeler was employed by American Tripoli, beginning around
December 26, 2022. Id. at 128. He left that employment around February
2023. Id. He was employed as a maintenance person, working in the mill. Id.
at 128-129. Spears was his supervisor. Id. at 130. His duties were to
keep and maintain everything in working order, to the best of his ability. Id. Wheeler
stated that, not long after he began working for Tripoli, he was “pulled” from
his job by an MSHA inspector because he lacked new miners training. Id.
at 137. Wheeler stated that once his employment began, he was put right to
work without any new miner training. Id. During this time he was not
closely supervised by anyone, nor did he receive any task training from
Tripoli. Id. at 137-138. Asked a series of questions about task training
for welding, lockout/tagout, and use of a forklift, Wheeler stated he never
received such training. Id. at 138-139. On the issue of lockouts,
Wheeler stated that Tripoli did not provide locks, and consequentially, he used
his own locks. Id. at 139. He used Teams Chat to communicate with
Tripoli management and other employees there. Wheeler quit when the mill was
shut down by MSHA. Id. at 145.

Asked
about his relationship with John Spears, Wheeler answered “[t]urbulent I guess
is the best word I can use in the company present.” Vol. 2 Tr. 145. He
explained further, “I'm sure he's a great feller, but I don't think he's
competent and overall just kind of ignorant in some aspect. I think that's a
fair word. Ignorant is a fair word.” Id. He agreed that ‘contentious’
was an apt word to apply by his using the term ignorant. Id. at 145-146.
In contrast, he described his interactions with Baumann as “pleasurable
interactions” and in his view, Baumann was a “pretty decent” employee. Id.
at 152. In his estimation, Wheeler believed that Baumann did his job
adequately. Id. at 153.

Wheeler
also expressed that, in his view, Baumann cared about safety and he expressed
safety concerns to him. Id. at 154. As an example, he offered:

One was the dryer downstairs. It was leaking gas real bad. Real bad. I mean, to the point, you know, you were a smoker, you know, the whole place might go up. It was really bad. There was, on the other couple of floors, there was some rotten spots in the floor that got brought up to me. Just kind of overall, you know, rust, sharp things, you know, about. Just kind of in general. I mean, you know, kind of a walking tetanus shot in there.

Id. at 154.

Wheeler also noted that fixing things was his
responsibility, not Baumann’s. Id.

Indicative
of the problems at the Mill, Wheeler stated that it was often shut down,
explaining “you know, most of the time we were shut down from whatever agency,
you know, whether it be MSHA, the National Department of Natural Resources or
the cops, for that matter.” Id. at 157.

The
Secretary then referred Wheeler to Ex. P-43, the deposition transcript of
Russell Tidaback taken on January 22, 2024. Id. at 158. This was
relevant because Mr. Tidaback asserted in his deposition that Wheeler said he
did not like Baumann and that Baumann was lazy. Id. at 162. Mr. Wheeler denied
he ever said such things. Id. Further, Wheeler denied that he told
Tidaback that Baumann never helped him with maintenance. Id.

It
is clear that Mr. Wheeler’s overall description of the Mill’s operation was not
a positive one. Asked about his earlier remark about jagged edges, he stated
“everything that's in there is just jagged, you know. The handrails, you got to
be careful with them handrails, you slice your hand open on those. Short bits
and bobs around every corner. Just in general.” Id. at 163. Plainly,
Wheeler was concerned about safety at the Mill in general. Id. at 164.

Wheeler
confirmed that there were instances of conflict between Baumann and Spears,
with dust being the number one contention. Id. at 167. He stated that,
at times, the Mill ran in spite of the dust issue while at other times it did
not run. Id. He informed that Spears told him to “steer clear” during an
MSHA inspection. Id. at 170. Asked how he received that message, Wheeler
stated “Don't talk to them. Don't interact with them. Don't engage with them in
any way, shape or form.” Id. at 171. And this message was delivered to
Wheeler more than once. Id.

It
is noted that Ex. P-9, a Teams Chat, dated February 14, 2023, involved a
message from Spears to Wheeler advising that he not speak with MSHA. Id.
at 175. In one Teams Chat message to Wheeler, on February 14, 2023, he was
advised to not volunteer information to MSHA. Tr. 178-179. Wheeler also spoke
of an instance when the Seneca Police came to the Mill and told them not to run
the Mill, advising them that if the Mill continued to run the police would
“tak[e]every one of you son's of bitches to jail.” Id. at 185. To be
clear, Wheeler quit, he was not fired. Id. at 196. Wheeler worked at
Tripoli for three months. Id. at 194.

When
Mr. Tidaback suggested that Wheeler’s time at the Mill was too short for him to
speak knowledgeably about it, Wheeler responded “I got eyes.” Id. at
196.

** Carson Allman was then called by the Secretary. Id.
at 214. He worked at Tripoli, from September 13, 2022, through November of
2022, as a maintenance employee, primarily working in the Mill. Id. at

218. John Spears was his supervisor. Id. During some periods of that time,
     he was the only maintenance worker at the Mill. Id. at 219. He received
     new miner training about a month after his employment began. Id. at 220.
     When he received his new miner training, Mr. Tidaback told him “[m]ostly
     just not to tell any stories about the mill itself to the inspectors.” Id.
     at 221-225, (emphasis added). He never received any task training while at
     Tripoli. Id. at 222- 223.

The
Court notes that Allman’s testimony was consistent with the prior witnesses –
that Spears had to get approval from Tidaback before things were repaired, such
as parts needed for repairs. Id. at 225. Sometimes requested parts were
not received. Id. at 230-231. Allman stated that Spears told him “it was
just too expensive. Something they couldn't do right now.” Id. at 231. Allman
informed about a request he made for new filters for the bag house. Id. Regarding
that, he explained the nature of the bag house:

The “[b]ag house [is] kind of like a ventilation system. The dust goes in and [its] supposed to separate the dust from the clean air, but the clean air, instead of pushing out a whole bunch of dust. When them filters go bad, instead of separating the air and dust, it just pushes out the dust with the air straight out of the stack.

Id.

Allman
recommended new filters because “[t]he ones they would were plumb full of
tripoli and old and brittle. A lot of them had rips in [them]. I think we
counted 36 [bags with rips]. Id. at 231-232. New bags were not ordered.
Id. at 232. Instead, Spears had them use those from a “stockpile of old
filters that they had pulled out and replaced beforehand. He had us sort
through them to put back in the place of the ripped ones, but they were just as
rough as condition because they had been sitting in the garage for who knows
how long.” Id.

According to Allman, the day shift was shut down
most of the time he worked there. Id. at 233. He elaborated about the
reasons for the shutdown, stating “[t]here was multiple reasons. On day shift
they didn't want to run for -- one, the local police weren't happy with the
dust. And then there was also an MSHA inspector that wanted to watch the plant
run so we were running night shift instead.” Id.

The Court takes note of that revealing remark, as Allman stated that the mill would run at night. Vol. 2 Tr. 233-234.

Allman’s view of Baumann was, like Wheeler’s,
positive, informing that he was “one of the most helpful people I worked with
while I was there.” Id. at 234. Further, Allman expressed that Baumann
was concerned about the workers’ safety. Id. at 235. Distinct from
safety, Allman spoke to the Mill’s production demands, informing that “Russell
[Tidaback] had mentioned several times that the plant was capable of running a
hundred thousand pound of product, but I think when I was working there it was
lucky to push out about 15,000, if that.” Id.

In explaining why production fell short, Allman did not paint a pretty picture about the operation, stating:

There were a lot of reasons why. Such as holes in the augers, holes in the bearings. A lot of their product was going on the floor. Like in the very lower floor there's several spots where the tripoli would just pile up at the machine [while it was] running. By [the] end of shift you'd have probably a couple hundred pounds worth of tripoli sitting on the floor. And half the equipment, when I started there, wasn't even working. A lot of it was just locked out, not running since I started.

Id. at
236-237.

Allman
described the safety culture at American Tripoli thus: “[k]ind of nonexistent,
for the most part. Kind of just look out for yourself.” Id. at 238. As
just one example, illustrating Allman’s concern about his safety, he stated that
his concern was:

[q]uite a bit. Especially like working on that bag house, we were doing some air diaphragms on that, and we would [] do it from the roof of the building because it's on the back side of the bag house, so you have to stand on the roof and all the safety harnesses they had there were expired.

Id. at 242.

Also
consistent with the previous witnesses, Allman stated that Spears’ instruction
to him was that he didn’t want employees speaking with the MSHA inspector Van
Horn, telling them “he [Spears] could handle it all.” Id. at 246. Allman
denied that Inspector Van Horn ever yelled or threatened him. Id. at

249. Allman also stated that he and employee [Terry] Newburn were terminated
     not long after they participated in an MSHA inspection. Id. at 250. Allman
     denied that he was ever verbally abusive and disrespectful to Spears and
     Baumann. Id. at 252.

During
his cross-examination, Mr. Tidaback asked if Allman ever received a letter of
reprimand from Tripoli. Id. at 255-256. Allman denied that. Id.

Ms.
Kensley Brewer then testified for the Secretary. Id. at 266. She
was identified as a miner witness. Id. at 264. Her employment at Tripoli
was brief, as she worked there just over a month, from December 19, 2022
through January 24, 2023. Id. at 289; Ex. P-39, at page 15. Though she
had applied for a safety position, she “ended up being like a secretary and I
did, like I did the production part. Did inventory and shipping and receiving a
lot of the times, or helped with that.” Vol. 2 Tr. 270.

She
informed that she worked with Mr. Baumann on a daily basis. Id. at 272. Her
impression of him was “[he] was always really dedicated to his job and wanted
everything to go right and be safe [and that he did the work he was asked to
do], stating “yes, he did.” Id. at 273. She added,

[b]ut sometimes things would be unsafe, and he [Baumann] would come and report to John [Spears] in the administration building that I was in, and you know, he would tell John [Spears], you know, more than one time, and then finally, you know, he would have to stand up for what was right as far as safety went. And he was just always trying to make sure that everything was as safe as possible, even though a lot of the times [he] was being told to do otherwise.

Id. at 273.

In
sum, Brewer described Baumann as one who was always at work early, had a good
attitude, and cared about safety. Id. at 275-276. Brewer asserted that
Baumann complained about safety concerns to Spears “[c]onstantly.” Id.
at 278. Brewer described the MSHA inspectors as “always friendly.” Id.
at 282- 283. As with other witnesses, Brewer asserted that Spears stated that
“Russell said we [i.e. employees, such as Brewer] [were not] supposed to talk
to the MSHA inspectors.” Id. at 283. No MSHA inspectors ever yelled or
threatened Brewer. Id. at 287.

On
cross-examination, Brewer stated that she worked with Baumann every day. Id.
at 294. She clarified that her testimony was not about Baumann’s job
performance; she did not watch him perform his job. Id. at 295. She
acknowledged that there were instances when Spears and Baumann raised their
voices, but that this was when safety was in issue. Id. at 301. She
expressed that Spears would not listen to Baumann, informing that he [Spears]
had been told by Tidaback how things were to be done. Id.

---

Following
Mr. Brewer, Michael Dillingham then testified for the Secretary. Id. at

306. Dillingham is a special investigator for MSHA. Id. at 307. He has
     more than 49 years of experience working in mines, with 17 of those years
     working for MSHA. Id. at 308. He conducted the section 105(c)
     investigation for Baumann’s discrimination complaint. Id.; Ex. P-1. The
     complaint was delivered to the mine operator on April 27, 2023. Id. at
307. Mr. Baumann’s complaint of

discrimination
was based upon his claim of raising safety concerns and also by being selected
as the miners’ representative. Id. at 316. Dillingham
requested Baumann’s personnel file from the Respondent three times, but it was
never given to him. Id. at 324. Later, Dillingham stated he received,
“bits and pieces” of the personnel file. Id. at 326.

[Investigator Dillingham]did
receive a copy of American Tripoli’s employee handbook, which includes its
disciplinary policy. Id. at 325. He described that policy, stating “it
says right in there that it's a three step process. No. 1, if they have got an
issue, they converse with you about it. They talk to you about it. No. 2, you
get some kind of written form, and then after that, the next thing would be --
would be potential termination or disciplinary action, you know, whatever they
could warranted to do.” Id. at 325; Ex. P-16 at page 43. The penalty
MSHA is seeking for the alleged violations are reflected in Exhibit P-42.

After Investigator Dillingham’s testimony, MSHA
Inspector Keith Markeson testified. Vol. 2 Tr. 356. It is noted that Tripoli
asserted that it filed a complaint against Markeson regarding his behavior
during his inspections. Id. at 352. However, the Secretary advised that
there is no active complaint regarding the Inspector. Id. at 354.

---

Inspector Markeson has been an MSHA inspector for
sixteen plus years. Id. at 356. He has inspected Tripoli many times.[25]Id. at 357. These inspections
included times in the past when the mine was under different ownership. Id.
at 375. He has interacted with Baumann on every inspection he performed at the
Seneca Mill. Id. at 358. He described the management members of Tripoli
as follows: “John Spears was the operations manager. Rob Baumann was the
production supervisor, and then Jordan and Russell Tidaback were in the
ownership roles.” Id. at 359.

He first met Russell Tidaback on February 27, 2023.
Id. On that date he was conducting a~~ ~~complaint investigation. Id.
at 359-360. Mr. Baumann and Mr. Tidaback were present during his investigation.
Id. at 360. Markeson stated that during the first day of that inspection
Baumann “brought some concerns to my attention when we were on the top floor of
the mill building that needed to be addressed.” Id. at 361. For context,
the inspector stated that “[a] miner had gotten hurt at the mine. He had fallen
through some floor grating and gotten hurt, and he didn't want anybody else to
get hurt. And during some of the repairs that were conducted at the mine, he
was directed to leave guards out of place to get back into production faster,
and he thought that was a concern that needed to be addressed.” Id. at
362.

Markeson informed that during inspections he would discuss
miners’ rights, including their right to elect a representative. Id. at

363. He did so at Tripoli and shortly thereafter provided Mr. Baumann with the
     paperwork to become a miners’ representative. Id. at 363-364. Thereafter,
     on March 21, 2023, Baumann was elected as the miners’ representative. Id.
     at 364. At that point, Markeson went to the mine’s office, informing them of
     the miners’ representative and the rights that person had in that capacity. Id.
     at 365.

During his inspections at Tripoli, Markeson spoke to
all the miners employed there. Id. at 366. There were five miners, but
one of them didn’t talk much. Id. The big concern raised by those miners
was the dust at the mill, and that they were exposed to it without proper
protection. Id. at 366-367. The miners also spoke of other safety
issues. Id. at 367. He described these as “[g]uards being left off,
which left moving machine parts exposed. Some electrical issues and general
condition of walkways and work areas, whether it be sturdiness of the area or
housekeeping of the areas.” Id.

Inspector Markeson denied ever threatening miners at
Tripoli, nor for that matter, did he threaten anyone at Tripoli. Id.
Instead, he asserted that he explained the MSHA enforcement process. Id.
at 368. But this was never done in a threatening or harsh manner. Id.

Regarding Markeson’s inspections at the
Mill, although there were one or two times when he and Baumann were alone, most
of the time either Spears or Tidaback were present with them. Id. at

369. It is noteworthy that Inspector Markeson always had another MSHA inspector
     with him when he was at American Tripoli. Id. at 372. Markeson stated
     that no one from MSHA ever threatened anyone at Tripoli during those
     inspections. Id. Shortly after his inspection in February 2023, three
     miners told him they were told not to speak with MSHA and they showed him text
     messages supporting that claim. Id. at 373-374.

In comparison to his inspections when
Tripoli was under previous ownership, Markeson’s impression in February and
onward in 2023, was that the mine was “lacking in upkeep.” Id. at 375. Among
the inspector’s concerns, he stated that:

[t]he biggest thing that comes to mind is there was a dust citation issued on, what was it, March 30th, 2023 for overexposure to dust. I had sampled all the miners that worked -- that were working that day at the plant, and they were all overexposed. Four of them were overexposures that was citable. One was an overexposure that was not citable. I set the termination due date for April 7th, which was a week later, which is standard because none of the miners had been enrolled in a respiratory protection program, and normally when we cite dust that doesn't have a respiratory program, we give them a week to get that program in place, get the miners wearing respirators, fit tested, that type of thing.

And then I returned to the mine on April 12th, so the termination due you was on the 7th. I came back the following Wednesday on April 12th and no action had been taken. Respirators hadn't been ordered. The respiratory protection program hadn't been put into place. Miners hadn't been fit tested or medically evaluated. Nothing had been done yet.

Id. at 377-378; Ex. P-21.

The Court makes note that this testimony from Inspector Markeson is considered in a limited fashion because this proceeding is not for the purpose of adjudicating any citations or orders at Tripoli. Rather, it is mentioned for context only, in support of the finding that Mr. Baumann’s safety concerns were not invented or fabrications.

On the third day of the hearing Inspector Markeson’s
testimony resumed, with Mr. Tidaback starting his cross-examination. Vol. 3 Tr.

8. Markeson stated that he had more than ten inspection visits at Tripoli. Id.
   at 9-10.[26] The inspector denied that he has ever been
   disciplined for his performance as an inspector.

The
Court also takes note that much of Mr. Tidaback’s questions to Inspector
Markeson were irrelevant to this matter, as they related to that inspector’s
actions during an inspection. See, Id. at 21-22, for example,
relating to the speed of an inspection. That said, employing its discretion,
the Court did admit Ex. R-H. Vol. 3 Tr. 24. It is a chain email, introduced by
the Respondent to show, allegedly, that Inspector Markeson was disrespectful or
showed some other negative attribute with his behavior. Id. at 24. The
email is a message from Tidaback to MSHA District Manager Simms. Id. at

28. The Court had issues, to put it mildly, with the Respondent’s use of this
    email, noting “[t]he extent of the camaraderie or disagreements between MSHA's
    inspection team does not advance at all in my perspective the determinations
    that I have to make in this case.” Id. at 27. Tidaback stated that the
    Respondent’s purpose for this exhibit was “to establish the basis that Mr.
    Markeson influenced and coerced Mr. Baumann in filing a complaint,” but that is
    something which is also completely irrelevant to this case. Id. at 32.
    Markeson did say to Baumann, upon learning of the circumstances of Baumann’s
    firing, that he might have a discrimination action. Id. at 34.

The
Court would remark that there is nothing improper about so advising a miner of such
a right. Inspector Markeson denied having tried to influence Baumann; he only
provided the information for the procedure to file such a complaint, if he
chose to do so. Id. at 35.

As Mr. Tidaback frequently tried to establish that Mr. Baumann was deficient in his job, in one instance by attempting to have the inspector comment on machine guarding, the Court informed that:

that's not how you're going to establish that Mr. Baumann was deficient. The way that the American Tripoli can potentially do that is to have someone like Mr. Spears or some other witness testify that Mr. Baumann's duties included making sure that guards were in place and that on one or more occasions this was noted by such individual and that there was -- to demonstrate the veracity of that, that there was a record made on the part of American Tripoli which would have noted this deficiency, alleged deficiency, on the part of Mr. Baumann. So this would all be part of American Tripoli's affirmative defense to the extent that they can show that.

Id. at 40-41.

The
Secretary then called MSHA Inspector, Bryan Licklider. Id. at 67. He has
conducted an inspection at Tripoli. Id. at 69. Ex. P-26 at page 9,
represents Licklider’s field notes. The inspector alleged that the mine had a
fire extinguisher that did not have an annual inspection on it. Id. at

73. Instead, the last inspection sticker was dated 2021 and his inspection was
    carried out on February 14, 2023. Id. On that date Licklider was present
    because of a hazard complaint. Id. at 74. An inspection ensued and the
    inspector asserted that multiple violations were found. Id. Licklider’s
    opinion was that Tripoli had “a total disregard for safety.” Id. at 80. He
    denied ever telling personnel at Tripoli that he would call the U.S. Marshalls
    on them. Id. He also denied that he threatened anyone, and similarly
    denied that he told anyone he would take them to jail. Id. at 80-81.

Subject
to any rebuttal witnesses, the Secretary then rested. Id. at Tr. 86.

The
Respondent’s defense then began. Mr. Tidaback called John Robert Spears as his
first witness. Id. at 88. Spears confirmed he is employed at American
Tripoli at its Seneca, Missouri location, where he is the operations manager
for the mill. Id. at 91. His employment began in August 2022. Id.
at 92. His duties are broad, as he informed that he “oversee[s] the activities
of the processing mill as well as the drying shed area and the quarry itself. Id.
at 92. Spears agreed that the operation experienced high turnover in several
jobs including maintenance, the shift lead, the safety and environmental job,
and the administrative assistant positions. Id. at 96-97.

Essentially,
all of Spears prior work was with US Postal Service. Id. at 98-99. For
some of those years with the post office, he helped conduct training. Id.
at 99. It must be said that much of Mr. Spears testimony was not helpful to the
Respondent’s defense. For example, Mr. Tidaback asked if Mr. Baumann had
expressed to Spears multiple times that more Tripoli should not be fed into the
system. Id. at 100. Spears agreed, but only in part, as he expressed
recalling “[o]nly one particular instance, you know, with the weather being hot
and having to hand stack our -- our product.” Id.

Tidaback
continued, asking whether Spears “ever provide[d] reasoning why [the mine]
should provide more feed to the mill?” Id. Spears response was “to meet
our production goals.” Id. at 100-101.

Spears
denied ever instructing Baumann not to speak with MSHA. Id. at 102. He acknowledged
that Baumann did inform him that he was a miners’ representative. Id. at

104. He denied ever cutting off a lock that wasn’t his own. Id. at 105. He
     denied creating an atmosphere where miners would be fearful of speaking with
     MSHA. Id. Though it is irrelevant to the issues in this matter, Spears
     did agree that a miner expressed concern about his job in connection with MSHA
     inspectors, and fear of MSHA inspectors, identifying Inspector Markeson in
     particular. Id. at 107-108.

As
for Spears relationship with Baumann, Spears believed they “got along pretty
well.” Id. at 109. On the issue of whether Baumann ever raised his
voice, cursed at him, or was basically disrespectful to him as his subordinate,
Spears answered, “[n]ot to me personally, no.” Id. As to whether Baumann
“ever showed anger, haste, stomp his feet, g[o]t mad at anything you directed
him that we needed to do,” Spears responded “[y]es, sir.” Id. at
109-110.

In
describing the mill operations with Baumann as the shift lead, Spears stated
he, “felt that [Baumann] was conscientious about trying to -- you know, trying
to get our product produced.” Id. at 110. Asked if Baumann ever had
issues or complaints that he brought to Spears, he answered “[w]ell you know,
there was always issues with -- with the equipment, you know, needing to be
repaired, looked after, you know.” Id.

Thus,
Spears agreed that Baumann brought those issues to his attention. Id. at
109-110.

Spears
asserted that he addressed any maintenance-related or safety-related issues
that were brought to his attention. Id. at 111. He acknowledged that
there were instances when guards were removed for lubrication and then the
guards were not reinstalled. Id. at 112. Responsibility for reinstalling
the guards, he said, was the person doing the workplace exam. Id. at
112-113. This person would be the shift lead, i.e. the production supervisor. Id.

When
Spears was asked about hazards and keeping employees safe, he expressed a view
that put the burden on employees, not on the mine’s compliance, stating: “I
would like to think that people's personal initiative, that they would want to
-- to not be in a position to be in danger of any -- of any type of equipment
that we have.” Id. at 115.

Spears
affirmed that there were issues with Baumann’s performance when he was the
shift lead and that he discussed those performance issues with him. Id.
at 118-119. Spears stated that he knew of and was familiar with, the mine’s
employee handbook, including the progressive discipline aspect of it. Id.
at 119-120.

At
that point, Mr. Tidaback posed a revealing question, asking if Spears knew that
Missouri is an “at-will work state.” Id. at 120. Spears affirmed he knew
that. Id. Spears then described its application, expressing “[i]t just
means that at any point, the employer may terminate an employee's employment
with the company. And, therefore, the employee can also terminate at any time,
you know, for no -- you know, without giving any reason.” Id.

The Court would note that such an unfettered ability to fire an employee may be true in a right to work state, but if the Respondent is suggesting that overrides the protections of the Mine Act, that is incorrect.

Spears
did state that it was not his intention to interfere with an MSHA inspection,
asserting that there was a swirl of activity ongoing at that time. Id.
at 131. Instead, he asserted that, as Gage Wheeler was a new employee, his
motivation was he didn’t want “any kind of wrong information” given by him. Id.
This was offered, Tidaback asserted, to show that Tripoli had no intention to
interfere with an MSHA inspection. Id. at 132; Ex. R-DD. February 14th
group chat material. The Court concludes that this explanation is not credible.
The Court asked Spears if he had seen the document, to which he responded
“[n]ot that I can remember.” Vol. 3 Tr. 127. That same day, February 14th,
Spears agreed that he was also dealing with the Seneca Police who were arresting
a Tripoli employee. Id. at 128.

In
cross-examination by the Secretary, Spears agreed
that he is the operations manager at Tripoli and that he has the authority to
discipline employees. Id. at 144-145. He then agreed that he never
disciplined Baumann while he was an employee at Tripoli. Id. at 145.
Spears added “I don't remember ever doing any kind of a counseling notice or a
write-up or anything like that.” Id.

In notable contrast, Spears informed that he has given
written discipline to other miners at American Tripoli. Id.

Further, Spears stated that Baumann was fired for
production issues. Id. at 146. The record shows that the claim that
Baumann was fired for production issues is unsupported. Spears also agreed that
Baumann told him that meeting production quotas was too hard on the mill
associates. Id. However, Spears stated that he did not know if this was
related to safety concerns on Baumann’s part. Id.

On
the issue of production, Spears agreed that the demand of 40,000 lbs. per day
has only been met 20 to 30 times during the entire time he has been employed at
Tripoli. Id. at 147. Thus, Tripoli rarely met its production issues and
the record show that this claim was aspirational, and infrequently met.

Spears also admitted that he walked around with the
MSHA inspectors and that he observed Baumann speaking with the inspectors. Id.
at 148. Further, he agreed that Baumann informed him that he was a miners’ rep
before he was terminated. Id. In addition, Spears acknowledged that he
never hired anyone to replace Baumann before he was fired. Id.

On re-direct, Spears repeated that Baumann was fired
for performance issues. Id. at 150. However, Spears blurred that meaning
of that term, calling it “performance/production.” Id. at 151. He
considered production to be the key element, stating “[i]f your production's
not showing what it's supposed to be, then it would be your performance toward
that goal.” Id.

The Court inquired further. Spears stated that meeting
production goals would be part of his ‘performance,’ elaborating that “it was
his, Mr. Baumann's, reluctance to -- to try to meet that production goal due to
whatever circumstances in the mill that he thought was relevant at the time.” Id.
at 152.

When asked if conversations between Tidaback and
Spears discussing firing Baumann occurred months before Baumann was fired,
Spears answered “No.” Id.

On recross examination, Spears was directed to Ex. P-44,
from his January 30, 2024, deposition at p. 29. There, in response to the
question that “it sounds like overall, you [Spears] didn't have a lot of
complaints about Rob [Baumann]. Would you say your only complaint about him had
to deal with meeting production quotas?” Id. at 156. Spears answer was
“Yes.” Id.

On redirect, Mr. Tidaback referred Spears to Ex. P-44
at page 10, when Spears was asked why Baumann was fired, Spears responded “for
his lack of production and just an overall him just not being a productive
employee.” Id. at 158-159.

Mr.
Tidaback then testified. Id. at 164. Questions to Russell Tidaback were
posed to him by his daughter Jordan Tidaback.[27] When asked how he coordinates between himself, Spears and Jordan
Tidaback “to provide support and ensure that the company’s operations run
smoothly,” Tidaback stated that “everything in American Tripoli [is] run
through [Microsoft] Teams.

Tidaback
stated that Baumann’s correct job title was production lead or shift lead. Id.
at 203. He described the roles and responsibilities of the shift lead as
follows:

The shift lead is responsible for the mill operations. That position is -- monitors the production schedule which the sales team builds for them. They -- They are the ones that control the inventory flow through the mill. They are the ones that also control the quality control of it leaving. They create the product. They ensure that it goes out properly. That's -- That's really it for that role. They manage the workload of the mill associates. They're in there. That's their role. That's their primary role, to make sure that things get done in the mill.

On top of that, they're also responsible for the safety and -- of the mill associates. They're in that senior leadership position because it would be the senior person because the progression -- and this may help, your Honor, the progression of every mill associate is they start as a mill associate. Then they move to the shift lead. And then after the shift lead is when you come into a manager role where you can either become safety, the operations manager, the quarry manager, that stuff. So there is progression moving up and that's one of the things that we had for Mr. Baumann, and that's -- that's -- that's why this is bothering me, so --

Vol. 3 Tr. 177-179.

Tidaback
agreed that he had to remind Baumann to add mill Teams hours and shifts, so that
too many days didn’t go by. Id. at 179. He maintained that he shouldn’t
have had to remind Baumann about that task but he had to do that numerous
times. Id. at 180. He asserted that, by Baumann’s failure to do that
task, it impaired the production scheduled for the next day. Id. at 181.
Tidaback also asserted that he had to remind Baumann to do the shift lead
close-out at the end of each day. Id.

In
speaking to Tripoli’s disciplinary process, Tidaback emphasized, as did Spears,
that Missouri is a “right-to-work state, [one] can be fired at any time without
any notification.” Id. at 182. Then, he described Tripoli’s disciplinary
process, stating “First is a verbal, okay. Second is a written. Third, if there
is one, is immediate termination. No explanation is needed or anything like
that. By that time, you know that you're going to be terminated.” Id.

He
then added that, per its policy, the process “can go in any order. We don’t
have to follow that [disciplinary process] order.” Id. at 183. Thus, he
asserted Tripoli can terminate anyone at any time just for any reason. Id.

Tidaback
asserted that he hired people to replace Mr. Baumann. Id. at 186. The
Court tried to clear up testimony about this claim. Id. at 186-187. Tidaback
contended that, if he remembered correctly, that four people were hired for
that purpose. Id. at 187. None of them are still employed by Tripoli. Id.
at 188. None worked for Tripoli for more than one month. Id. at 189. Respondent
referred to Ex. R-X regarding this issue. Id. at 190. That exhibit
refers to a hiring document for one such employee, Will Shellenberger. Id.
at 192. It is dated August 24, 2022. Id. at 193. Exhibits R-X, R-Y, and
R-Z were admitted previously. Id. at 194. Among those exhibits, Richard
McCullen was another employee hired by Tripoli. Id. at 195. According to
Tidaback, that hiring was for production shift lead. Id. at 196. A third
such hiring was for Alex Nigrass, who started work for Tripoli on March 20,
2023. Id. at 195. Tidaback asserted that all three of these hirings were
for the purpose of replacing Baumann. Id. at 196.

Tidaback
contended that Tripoli never stopped any employee from speaking with MSHA. Id.
at 199. Tidaback then veered into irrelevant material, asserting that
inspector Markeson in taking notes during an inspection, asserted that
operator’s statements can be used against them. Id. at 201-202. Tidaback
took that to mean that Markeson was effectively giving him Miranda rights. Id.
The Court reminded Tidaback about the subject of this hearing – Mr. Baumann’s
discrimination claim. Id. at 203.

On
the issue of whether Tidaback ever received any safety concerns from Baumann in
any fashion, whether it be a phone call or a chat, Tidaback responded, “[t]hat
I recall, no.” Id. at 204. When the Court inquired further about this,
he reiterated that “[i]n the numerous communications that we had, I do not
recall any specific safety-relatable concerns from Mr. Baumann, no.” Id.
at 205. Further, on the issue of safety concerns, Tidaback stated that such
concerns should be voiced through the hierarchy and that Baumann did not follow
that procedure. Id.

Given the small management group- three people – the Court did not find Mr. Tidaback’s lack of recollections to be credible.

On
the subject of appropriate procedure for terminating an employee, Tidaback
informed that no written counseling statements are required by Missouri law and
that verbal statements are sufficient and beyond that no counseling statements
of any sort are required. Id. at 207. Though in the Court’s view it is
inconsequential, Tidaback denied that he ever knew that Baumann was a miners’
representative until he was fired. Id. at 214-216. Nor, he contended,
did Spears inform him of Baumann’s miners’ rep status. Id. at 216.

The Court did not find the denial to be credible.

The
Respondent then turned to Ex. P-38, Baumann’s termination letter. Id. at

222. Tidaback stated that on numerous occasions he gave Baumann counseling
     sessions about reading training files as he was “starting to have issues in his
     role.” Id. at 223. This led to questions for Tidaback about Ex. R-B. Id.
     at 224. He identified it as notes regarding Baumann from June 26, 2022, through
     April 17, 2023. Id. at 224. The Court attempted to clarify the nature of
     Ex. R-B. Id. at 224-227. It is, Tidaback agreed, a three-page exhibit, dated
     April 27, 2023, and it reflects Teams notes. Id. at 226. Tidaback
     also agreed that the exhibit reflects his personal notes about Baumann. Id.
     at 227. There are three entries within the exhibit: The first entry, on page 1,
     is dated July 26, 2022, and the last is April 17, 2023. Id.

The Secretary had significant objections to the admission of the exhibit, noting “the document was not provided to the Secretary, adding that:

A version of this document was provided to MSHA during
their inspection. However, the document has been modified since then
that they're offering here as an exhibit. Also, Mr. Tidaback puts in his cover
page to his exhibit binder that this document is … an ongoing journal. And so
it's not clear when this document was last updated or even the date here at the
top here. It was [created] after Mr. Baumann's termination, and so we object to
the reliability and authenticity of this document and that it does vary from
what was provided to the MSHA inspector during the investigation.

Id. at 228, (emphasis added).

Despite
these legitimate concerns, the Court admitted the exhibit, Ex. R-B. Id.
at 229. However, the Court stated that the Secretary would be able to
cross-examine about the exhibit and in doing so to have the original document,
which was sent to the Secretary from Tripoli, entered in the record. Id.

On
cross-examination, the Secretary first referred to Exhibit R-JJ. Id. at

235. Tidaback agreed that the last page of that exhibit, which involves an
     email, is dated November 13, 2023. Id. at 235-236. The Secretary then
     presented Ex. P-45, which Tidaback acknowledged that “[i]t appears to be an
     e-mail from myself to Mr. Dillingham, cc'ing John Spears, Jordan Tidaback and
     myself …” Id. at 236-237. Tidaback then corrected himself stating that
     “it does appear to be the correspondence between myself and Mr. Dillingham.” Id.
     at 237.

Michael
Dillingham, it will be recalled, was the special investigator for the Baumann
Complaint. Tidaback, was asked to identify page 2 of Exhibit P-45 and whether
it was in response to documents that Mr. Dillingham had requested during his
investigation of Mr. Baumann's complaint. Id. at 238-239. At that
location of the exhibit, Tidaback’s email states “I have attached a copy of the
employee notes journal paren Rob Baumann space hyphen space notes dot PDF
closed paren that I maintain on each employee.” Vol. 3 Tr. 240. Stated more
succinctly, the email states “I have attached a copy of the employee notes journal
[for] Rob Baumann … that I maintain on each employee.” Id.

Turning
to page 7, 8, and 9 from that exhibit, Tidaback expressed uncertainty when
asked “[i]s there anything about the document attached on pages 7, 8 and 9 that
you do not recognize as the notes regarding Rob Baumann that you provided to
Mr. Dillingham during his investigation of this matter.” Id. at 242. Tidaback
didn’t deny such recognition, but insisted that he would need to verify the
attachments to agree with certainty to the question. Id. at 242. The
Secretary then moved to admit Exhibit P-45 and it was admitted. Id. at
243.

The
Court then inquired of Tidaback about Exhibit R-B, asking if he agreed that it
is not identical to those pages within Exhibit P-45. Id. at 246. Tidaback
agreed they were not identical. Id. The Secretary then asked if Exhibit
R-B, contains an entry for February 14, 2023, and Tidaback agreed that was
true. Id. at 246-247. Further, Tidaback agreed that P 45 at pages 7
through 9, does not have an entry for February 14, 2023. Id. at

247. Further, Tidaback agreed that his Exhibit R-B includes an image of some
     Teams chat messages. Id. He also agreed that those notes are generated
     based on his [i.e. Tidaback’s] writing in a wipeable notebook and then that
     text being uploaded into one note and that the Teams chat messages are not
     something that he wrote in a wipeable notebook. Id. at 247-248. Regarding
     the November 5, 2022, entry within Exhibit R B, Tidaback stated that entry
     “would be the date that [he] added the entry, not the actual specific date.”
     Id. at 248-249 (emphasis added).

Tidaback was then referred to the April 27, 2023, entry in Exhibit R-B and to Exhibit

P-12,
with the latter involving answers to interrogatories from the Secretary. Id.
at 249-250. Interrogatory No. 5 asks for Tidaback to “set forth the reasons Mr.
Baumann was terminated, who participated in the decision and when that date of
that decision was made.” Id. at 250. To that very basic question,
Tidaback answered “[t]hat’s what it states, yes, ma'am.” Id. He was then
asked, referring to page 4 of the interrogatories, whether his response
identified three individuals who participated in the decision to terminate Mr.
Baumann. Id. at 250-251. Those individuals were Russell Tidaback, Jordan
Tidaback and John Spears. Id. Tidaback admitted the three are “in the
decision-making process.” Id. at 251. On re-direct, Tidaback stated that
he makes the final decision on terminations. Id. at 252.

The testimony concluded at that point.

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Analysis:[28] For the Discrimination Count

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Complainant, Secretary of Labor, MSHA obo Robert Baumann has alleged that he engaged in protected activity while employed by Respondent by his making safety complaints and raising safety concerns to Respondent; by walking around with MSHA inspectors during MSHA inspections at Respondent’s mine and discussing safety concerns and hazards with those inspectors during those inspections and by his participation in those inspections as the elected representative of miners and, following an MSHA withdrawal order, by inquiring of MSHA inspectors about the rights of miners to compensation in connection with withdrawal orders. Complaint at 2-3. As noted in the Findings of Fact, Inspector Markeson informed that on March 21, 2023, Baumann was elected as the miners’ representative and thereafter Markeson went to the mine’s office, informing them of the miners’ representative and the rights that person had in that capacity. Spears admitted that Baumann told him he was the miners’ representative.

Robert Baumann was hired as the production supervisor at the mine. He was employed to do production and he was the lead over production from his first day on the job to the day he was terminated. Later, workplace exams became part of his job. Though expected to write down issues he found during an exam, initially the form did not provide sufficient space to describe problems found. Baumann stated that the workplace issues he identified could not be addressed right away because either there was no maintenance person at that time or because the fix would interfere with production. He contended that only problems hindering production would be addressed immediately.

His
employment was for a period of ten months, from June 16, 2022, to April 17,
2023. He was fired on April 17, 2023. Baumann stated that, per his termination
letter, he was fired, allegedly, due to poor performance, lack of leadership
skills and for failure to follow procedures and guidance given to him by his
supervisor. As noted, Baumann denied that he was having any performance
issues at the time he was terminated, and he affirmed that he had not been
disciplined or told that his job performance was lacking prior to his
termination. The Court takes note of its determination that none of the
trio of reasons for Baumann’s firing were established with any credibility. This
is because virtually all of the evidence Respondent offered to support those
claims were developed after the firing. The Court noted this deficiency
during the hearing, characterizing the claimed reasons as backfilling. Vol. 1 Tr.
401.

Baumann participated in an MSHA inspection around April 12, 2023, and in an earlier MSHA inspection involving air sampling. There was an issue involving silica dust at the mine. Baumann stated that he had raised safety concerns to mine management about that dust. Further, following MSHA’s issuance of a 104(b) withdrawal order for a dust hazard, Baumann stated that he raised concerns about the dust issue with management every day with operations manager John Spears and the mine’s safety director, Jesse Molesi. The concerns were not fixed prior to his termination. Baumann raised the issue of miners’ entitlement to pay following the withdrawal order with Spears and Molesi, but neither responded to him about the issue. The withdrawal order was issued on April 12, 2023. That order shut down the mill and it would be the last day Baumann worked at the mill. When he returned to the mill on April 17, 2023, he was fired.

The
subject of miners’ training was brought up during the hearing. Based on the
testimony of Baumann, Gage Wheeler and Carson Allman, all of whom the Court
found to be credible witnesses, the Court finds that, based on their credible
testimony during the hearing, the Respondent came up short in terms of meeting
the required MSHA training. Baumann agreed that he received annual refresher
training, but he never received task training for maintenance or electrical
work at Tripoli. There is no evidence of record to contradict Baumann’s claim
on the issue of task training. While the Court does not find that the
Respondent violated MSHA training requirements, that is because such citations
which may have been issued were not part of the Secretary’s case, which is
limited to discrimination and interference claims. However, the Respondent did
not refute those claims of insufficient training and the Court finds that,
based on the credible testimony, such shortcomings were emblematic of the
overall poor operations at the mine.[29]

Another instructive evidentiary finding by the Court is the unrefuted remark by Baumann that during his employment there was a great deal of employee turnover for mill maintenance. This is instructive in understanding this operation.

On
the subject of communication, the mine employed Microsoft Teams, as the
messaging system at the mine. It was referred interchangeably at the hearing as
“Microsoft Teams Chats,” or as “Teams Chats,” or “Teams.” At bottom, it was
simply an email messaging system for the mine’s employees.[30]

The
Respondent’s claim that Baumann had poor performance. Baumann stated
that no one at Tripoli ever told him he had to meet a certain production quota
and he denied that Mr. Tidaback ever told him he had to meet a 40,000 lbs.
daily production quota. He added that the 40,000 lbs. per day goal was not
realistic due to equipment problems and weather issues, among other reasons. Baumann
maintained that he never spoke with Mr. Tidaback or Mr. Spears about meeting
production quotas or goals and further that he was never counseled for not
meeting production demands. To the contrary, he was given positive feedback
regarding the production he was able to achieve from John Spears with such praise
coming about a month before he was fired. The mine’s own production records
make it clear that output of 40,000 lbs. per day was aspirational, a fiction,
not a fact.[31]

The claim of Baumann’s alleged poor performance was never documented, such as through Teams or through some disciplinary remark.

Baumann maintained that operations problems were a source of diminished production. Equipment problems and an insufficient number of employees were contributors to this. Not to be overlooked, on one occasion, dust emanating from the mill was so serious an issue, as it was reaching the city, that it prompted the local police to come to the site. MSHA too impacted production by its shutting down the mill operation.

As Spears admitted, debunking Tripoli’s claim that Baumann was deficient in performing his job, he never disciplined Baumann while he was an employee at Tripoli. Spears added “I don't remember ever doing any kind of a counseling notice or a write-up or anything like that.” Vol. 3 Tr. 145. Spears asserted that Baumann was fired for ‘production issues’ but the record shows that production at the mill was irregular, rarely meeting the aspirations. Beyond that, there was simply no record evidence to support the claim that Baumann was failing in meeting those illusory goals. Spears himself admitted that the goal of producing 40,000 lbs. per day of product has only been met 20 to 30 times during the entire time he has been employed at Tripoli. That’s a span beginning in August 2022 to the date of the hearing. The record, overall, shows that goals were not met because there were multiple equipment problems, and inadequate repair to address those problems and hazards, such as dust, making the Mill unsafe to operate.

Spears also
blurred the distinction between performance and production. As he said, “[i]f
your production's not showing what it's supposed to be, then it would be your
performance toward that goal.” Id. at 151.

Critically,
and strong evidence refuting Tripoli’s claims that it had issues with the
quality of Baumann work before firing him, when Spears was asked if he had
conversations with Tidaback discussing terminating Baumann months before he was
fired, Spears’ answer was plain and direct: “No.” Id. at 152. Though
Spears answer left no doubt, when asked if it was correct to state that,
overall, he did not have a lot of complaints about Baumann and that his only
complaint had to deal with meeting production quotas, again Spears answered
succinctly, responding “Yes.” Id. at 156.

Very clearly, Mr. Spears honest testimony augmented the Secretary’s case.

Baumann’s Role in Safety

---

Baumann contended that he was never in charge of safety while at Tripoli, nor was he given any training on that subject at Tripoli. Further, he was never tasked with ensuring that the mill was complying with MSHA standards. He asserted that during the 10 months of his employment for at least 3 or 4 of those months there was no one employed with the role of safety at Tripoli. When no one was employed for safety, John Spears would be in charge of safety. When safety issues were raised to Spears, Baumann informed that, unless the issue would shut down operations, they were to keep running. No testimony from the Respondent contradicted Baumann’s assertions on this issue.

In contrast, Baumann’s duties did include keeping track of the hours that miners worked. As with every other task he acknowledged to be within his duties, he was never told that he was failing at that task. Handling shipping and receiving paperwork were also part of his job duties, and for this responsibility too, he was never told of issues with his performance for that duty. Every contention of Baumann’s alleged failures arose after he was fired. The Court concludes that, as it stated at the hearing, this was an attempt to backfill the claim of Baumann’s shortcomings, and as such the Court can only conclude that the reasons were contrived.

Baumann’s Presence During
MSHA Inspections

Baumann’s testimony is uncontested that, during MSHA inspections in the time frame of February through April 2023, he walked around with MSHA inspectors on multiple days and that Spears was with Baumann during some of those times and observed Baumann with the MSHA inspectors. In fact, a Teams message to Tripoli employee Wheeler from Spears on February 14, 2023, informed “Gage Wheeler, do not answer any questions about the -- that the MSHA inspector may have. Do not go into the mill. I'll be the person who talks to me [sic] inspector." Vol. 1 Tr. 154. The participants in that Teams chat included Baumann, Wheeler, Spears, Russell Tidaback, and Jordan Tidaback.

This is an indisputable example of Tripoli management’s animus towards its employees involvement with MSHA inspections and, as discussed below, it also constitutes interference with its employees exercising their protected rights. As noted above, the Court finds that those messages were plainly and expressly warning the employees, improperly, that they were not to speak to MSHA. The Court views Jordan Tidaback’s follow-up message as simply an attempt to repair the plain import of that message, a failed attempt to put an innocuous gloss on the warning. There were serious results from that February 14, 2023, inspection, as MSHA then shut down an area of the Mill.

The
record shows that maintenance was a step-child to production at the Mill. For
example, Tidaback, referring to employees working less than 40 hours that week
may want to do weekend work to attain those hours. What is more instructive
about the remark is Tidaback’s remark that “[w]e don't want to use production
schedule time to do maintenance.” Id. at 210.

Tripoli’s Animus Towards
MSHA

---

** The record is replete with examples showing Tripoli’s
animus, misguided as it was, towards MSHA. A March 31, 2023, Teams message from
Tidaback says it all: “I will stress with you -- any MSHA inspector is not your
friend. Anything you say to or in their presence can," in all caps,
"and will be used against you in court of law. Hopefully this will never
be needed, but just be well aware.” Id. at 216-217. This remark alone
sinks Tripoli both with regard to the discrimination and interference counts. The
Findings of Fact identify other such inappropriate remarks. A few examples make
this abundantly clear:

On
April 19th Tidaback’s messaged: “MSHA just compounds the problem 10 X but not
working with us and being fucking dicks.” Id. at 260, (emphasis
added).

On the same date, Tidaback stated:

This [MSHA Inspector] Keith [Markeson] jackass... he
gets his jolly off handing out citations... this fucker is a snake.[32] When he is -- when he's around you better watch what
you say and do... he is out to fuck you or anyone else he can.

See Findings of Fact, supra. (emphasis added).

The testimony of Gage Wheeler is in line with this observation. Wheeler was hired as a maintenance person. Overall, as noted in the Findings of Fact, his testimony did not paint a safety conscious picture of the operation. Spears telling him to “steer clear” during an MSHA inspection evidences this animus towards MSHA. Wheeler understood the messages, quite reasonably in the Court’s view, that he was not to talk with MSHA. As noted below regarding the interference count, Spears “steer clear” message amounts to interference as well.

It is noted that Ex. P-9, a Teams Chat, dated February 14, 2023, involved a message from Spears to Wheeler advising that he not speak with MSHA. Vol. 2 Tr. 175. In one Teams Chat message to Wheeler, on February 11, [2023] he was advised to not volunteer information to MSHA.

The testimony of Carson Allman reinforced the testimony of other witnesses. As noted, when he received his new miner training, Tidaback told him mostly just not to tell any stories about the mill itself to the MSHA inspectors. His testimony too is tantamount to interference, effectively an attempt to silence employees from exercising their rights when MSHA inspectors were on the site. Ms. Kensley Brewer, another former Tripoli employee, told the same story, reporting that Spears told her that Tidaback said they were not supposed to talk to the MSHA inspectors.

Baumann Raises More Safety
Complaints in February 2023

---

** **Baumann started raises more safety complaints in
February 2023. He raised these safety issues with Spears. These coincided with
his walking around with MSHA inspections at the mill.

Tripoli’s Attempt to Show
it Fired Baumann Because MSHA Issued Citations to the Mill Fails

---

** **Tidaback tried to show that by virtue of MSHA’s
issuance of citations, this meant Baumann was not doing his job. Even if, for
the sake of argument, the citations could be placed at Baumann’s doorstep,
there is no record that Tripoli ever stated anything to Baumann about this
claim prior to firing him. Thus, Tidaback was left with nothing more than his
claim, at the hearing, that Baumann’s alleged shortcomings were responsible for
those citations being issued. Such mere assertions are insufficient.

The Testimony of Russell
Tidaback

---

As mentioned earlier, when testifying about Tripoli’s disciplinary process, Mr. Tidaback placed emphasis that Missouri is a right-to-work state and as such that he can fire anyone without any notification. And, while he acknowledged that the process had an order to it – verbal, written and then immediate termination, he stated that order could be ignored, or be applied in any order. Thus, he affirmed, Tripoli does not need to follow the order of its process.

Also, as mentioned earlier, he asserted that he hired people to replace Baumann, contending that four were hired for that purpose. None of them worked out, with none working for more than one month. But a greater oddity was that Tidaback needed Baumann, the allegedly deficient employee, to stay on to train the replacements.

On
the issue of whether Tidaback ever received ever received any safety concerns
from Baumann in any fashion, whether through a phone call or a Teams chat, as
the Court noted, supra, Tidaback responded, “[t]hat I recall, no.” Vol. 3 Tr.

204. When the Court inquired further about this, he reiterated that “[i]n the
     numerous communications that we had, I do not recall any specific safety-relatable
     concerns from Mr. Baumann, no.” Id. at 205. Regrettably, the Court,
     observing Mr. Tidaback closely during those answers, concluded that he was not
     credible.

Mr. Tidaback also denied that he ever knew that Baumann was a miners’ representative until he was fired. Nor, he contended, did Spears inform him of Baumann’s miners’ rep status. Given the extremely small management group at Tripoli, essentially Tidaback, his daughter, Jordan, and Spears, the Court finds that it is highly unlikely that this assertion was true.

In
terms of Baumann’s termination letter, it is noted that Tidaback asserted, on
numerous occasions, that he gave Baumann counseling sessions about reading
training files. To say the least, there were problems with Tidaback’s effort to
substantiate that claim, as the exhibit offered, Ex R-B, was dated April 27,
2023, a date after Baumann was fired. There were several other problems
with that Exhibit, as set forth in the Findings of Fact. While the Court
admitted the exhibit, the weight given to it is nil, for the reasons set in
forth in the Findings of Fact.[33]

An Important Event Just Before
Baumann is Fired; a Nexus Writ Large

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As noted in the Findings of Fact, an MSHA inspection that began on April 11th, was just six days before Baumann was fired. Baumann participated in that inspection and Spears knew that. A 104(b)-withdrawal order was issued that day. Baumann told Spears that, as a consequence of the shutdown resulting from the (b) order, Mill employees would have to be paid. Baumann, like the other employees, was sent home. He returned to the mine on April 17th on which date he was terminated.

Tripoli’s First Attempt in
Point of Time to Justify Baumann’s Firing

---

On April 14, 2023, Tidaback stated “Rob [Baumann] 's termination will be based on production performance. Not following guidance given by management. Not ensuring the safety of the mill associated by utilizing the proper controls, etcetera. He doesn't have to sign it. We just need to have a document of why he was let go.” Vol. 1 Tr. 245.

Tidaback’s
remark shows the reason for firing Baumann was pretextual and invented. Baumann
denied each of these alleged deficiencies and Tripoli presented no earlier
evidence demonstrating them. Though the remark above is more than sufficient,
Tidaback’s message to Huber on April 28, 2023, a date after Baumann’s firing, states
“I need the justification since Rob's complaint to MSHA about being let go... Just
need you to put the cherry on the cake. That's all.” Id. at 267
(emphasis added).

---

** **As the
Secretary notes, protected activity may take several different forms. These
include making safety complaints to MSHA or the mine operator, and acting as
the miners’ representative, which includes walking around with MSHA inspectors
during an inspection. Sec. Br. at 35. As reflected in the Findings of Fact,
Baumann made multiple safety complaints directly to Spears, and Tidaback and
through Teams Chat. The events very close in time to Baumann’s firing, all as
set forth in the Findings of Fact, demonstrate the attempt by Tidaback to
contrive reasons to justify that action. One does not speak idly of putting the
“cherry on the cake,” as Tidaback expressed, for terminating an employee.

With no choice but to express it bluntly, the Court concludes that Tripoli presented no credible defense. If anything, Spears’ testimony supported Baumann’s claim. Further, as the Court noted during the hearing, Mr. Tidaback’s claims, almost all of which arose after Baumann was fired, amounted to backfilling and, as such, were not credible.

Additional Observations.

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Mr. Baumann’s
Discrimination Complaint

• *

Mr. Robert Baumann engaged in multiple instances of protected activity. The adverse action is undisputed: Baumann was fired on April 17, 2023. The termination was motivated by Baumann’s protected activity, clearly meeting the “but for” test, as described above. Per the discussion above, Baumann made several safety-related complaints to management at the mine and made safety complaints to MSHA. He also served as the miners’ representative, walked around with MSHA during inspections, and discussed safety issues with MSHA, all of which are protected rights afforded by the Act. He would not have been fired but for his safety complaints. No other legitimate basis for Baumann’s termination was presented by Respondent Tripoli.

As the Secretary accurately summarized,

During his time at American Tripoli, Baumann made multiple and repeated safety complaints to Spears and Tidaback in person and via Teams, including increasingly more safety complaints in the last two months of his employment. … The safety issues Baumann raised, … included complaints about the dangerous silica dust that was not being properly controlled, concerns about a guard that nearly fell on Baumann, multiple electrical issues including a live wire Baumann found while sweeping that sparked a miners’ broom, rags being stuffed into bearings, and concerns about manually stacking 100-pound bags over six feet high. … Baumann walked around with MSHA during inspections and made safety complaints to MSHA, including a complaint to MSHA that triggered a new inspection on March 28, 2023, and [he] participated in MSHA inspections by walking around with MSHA inspectors and pointing out and discussing safety issues with MSHA inspectors during those inspections. … Baumann also became a miners’ representative on March 21, 2023, and in that role exercised his right under the Act to walk around with MSHA during their inspections, raised his safety concerns to MSHA, and brought the safety concerns of other miners to MSHA. … Baumann also exercised his and other miners’ statutory right to be paid during the 104(b) Orders.

Sec’s Post-Trial Brief at 35.

Tripoli’s Initial Brief, consisting of five pages, began with the assertion
that Baumann “was terminated on legitimate, non-discriminatory grounds related
solely to documented performance issues, which were persistent and detrimental
to operational efficiency. … there is no credible evidence linking his
termination to his safety complaints or MSHA interactions—activities that the
Respondent acknowledges and supports as part of its commitment to safety.” Tripoli
Brief at 1.

Succinctly stated, the Court finds otherwise with each of those assertions, findings amply supported in the record.

Tripoli
maintained that Baumann was fired “strictly due to job performance and
operational requirements.” Id. at 2. It then immediately turned to its
right “exercise discretion in its disciplinary measures.” Id. It is
revealing that Tripoli emphasizes its unfettered discretion regarding
discipline. That discretion, Tripoli advises, means that it “is not required to
adhere to a fixed sequence of progressive discipline steps and may terminate
employment without prior written warnings if operational exigencies or
substantial performance failures warrant such immediate action.” Id.

Tripoli,
through Tidaback, justifies its right to sidestep its own disciplinary
procedures to provide “the necessary flexibility to manage its workforce
effectively and ensure operational integrity without being constrained by a
rigid disciplinary procedure.” Id.

That disciplinary procedure, it must be said, is Tripoli’s creation. That is to say, it was not foisted upon it by some outside force.

Tripoli
then turns to its assertion that its Exhibit R-JJ establishes “the absence of
any MSHA record recognizing Mr. Baumann as an official miners’ representative.”
Id at 2. Tripoli combines this claimed absence with its “application of
flexible disciplinary policies that comply with the company’s handbook.” Id.

There are problems with this contention. To begin, it is not necessary to be a miners’ representative to have the Mine Act’s protections against discrimination. Further, the Court finds that Tripoli did in fact know of Baumann’s status as a miners’ rep. As noted above, and during the hearing itself, the Court identified problems with Tripoli’s claim that its termination procedure is within its complete discretion, a view which it somehow ties to Missouri being a right-to-work state.

As
for the Interference claim, Tripoli acknowledges that its “internal
communications, such as the message from Mr. Spears to Mr. Wheeler on February
14th, might imply interference,” but that, in context, those communications
were simply to ensure that the most knowledgeable person, i.e. Mr. Spears,
speak with MSHA. Id. Thus, Tripoli maintains that the messages were
simply “operational in nature and aimed at ensuring effective communication
during MSHA inspections.” Id. at 4.

The Court finds that the words in the Teams messages, and the credible hearing testimony, clearly refute this assertion.

**Tripoli’s Reply Brief **

Tripoli
continued the theme of its Initial Brief, to wit, there was no discrimination
or interference, contending that its actions were simply “well-intentioned
operational decisions.” Reply at 1. Tripoli essentially repeats the claim in
its Initial Brief that Baumann was fired due to “persistent performance issues
that directly impacted operational efficiency.” Id. at 2. Thus, it
reiterates its position that those “policies allow the company to terminate
employment without prior written warnings if substantial performance failures
warrant such immediate action, ensuring that operational integrity is not
compromised by inadequate job performance.” Id.

Similarly,
Tripoli repeats the contentions it made in its Initial Brief that there was no
interference, as its concern “was operational, aimed at ensuring that accurate
and relevant information was communicated to inspectors.” Id. It then
touts its training programs and policies, referring to Exhibits P-14 and P-16. Id.

Regrettably, the Court finds that the credible hearing testimony tells a very different story.

Last,
Tripoli contends that “[g]eneralized scenarios from other cases do not satisfy
the legal burden of proof, which demands clear and convincing evidence specific
to the circumstances at hand.” Id. at 4. It also asserts that the
Secretary has used “reliance on speculative linkages from other cases [and that
this is] insufficient for establishing a causal connection in this case [and
such cases] do not replace the need for specific evidence in proving individual
claims of discrimination or interference. Id.

The Court, based on the testimony from those witnesses it found to be credible and the Secretary’s documentary evidence admitted at the hearing, concludes that the Secretary’s case clearly established each of the claims.

As the Court noted during the hearing, a central problem for the Respondent was that at the time he decided to discharge Mr. Baumann, of necessity Tripoli would have had to have some sort of record established prior to discharging him as to the grounds for his discharge. The Court added that it didn’t know of any exhibit thus at that point in the hearing that identified Baumann’s deficiencies such as that would warrant Mr. Tidaback basis for firing him, regardless of protected activity. In fact, it was not just the lack of identified deficiencies warranting firing Baumann; Tripoli never identified any deficiencies at all prior to terminating Baumann.

In fact, as the Court also stated during the hearing, Tidaback’s efforts to create grounds for Baumann’s firing were in the nature of backfilling, that is, to invent grounds after firing him. In short, Tripoli’s grounds were contrived, not genuine.

The Secretary’s Count
Alleging Interference with Miners’ Rights

---

On the issue of interference, an equally clear case was presented. Tripoli interfered with the Mine Act’s rights of miners on multiple occasions. As described above, Tidaback’s own words show direct motivation to fire Baumann. Beyond the ample direct evidence, circumstantially the evidence is overwhelming that Tripoli knew of Baumann’s protected activity, and, to say the least, did not take it well. Tripoli did not want interaction with MSHA Inspectors. Tidaback expressly stating that “everyone needs to stop calling MSHA” is plainly interference. Derogatory remarks, replete with expletives, were made about the MSHA inspectors and employees were advised to steer clear of them.

---

Baumann’s Damages

---

[Finding that Mr. Baumann was unemployed for 62 days after
his termination, the Court awards $9,920.00 in back wages to him.]

The Court finds that the other expenses Baumann incurred in searching for a job: inability to keep up with his bills, needing to sell possessions to meet such bills, gasoline costs incurred from driving to unemployment offices and to the days of the hearing, were all insufficiently supported as they were without receipts to establish those expenses and so must be denied.

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---

---

**The Court’s Imposition of Civil
Penalties for Tripoli’s Interference and Discrimination Acts. **

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Tripoli’s Interference

---

Interference
is a separate and distinct violation of the Mine Act.[35] The Court agrees with the Secretary’s remarks that:

The evidence at trial established it was part of the cultural fabric at AT to interfere with miners’ rights. Management at AT, including Tidaback, Ms. Tidaback, and Spears, repeatedly and regularly told miners not to talk to MSHA, not to participate in MSHA inspections, and even made veiled threats that if a miner did speak to MSHA they would be terminated. The evidence at trial introduced numerous Teams chats from management consistently reminding miners to not speak to MSHA, many of which were sent during or after MSHA inspections, including inspections which were initiated based on miner complaints. The messages sent, which were also reinforced during repeated verbal conversations to multiple miners, could not be more clear: “do not talk to MSHA,” “MSHA inspectors are NOT your friend,” anything you say to MSHA “can AND WILL be used against you in a court of law” and “EVERYONE needs to stop calling MSHA.” Further, miners testified at the trial that it was a pattern and practice at AT to avoid any contact with the inspectors, and miners were told by Spears and Tidaback that their participation and speaking to MSHA could cause them to personally be issued citations. These statements, when viewed from a miner’s perspective, would tend to interfere with miners’ rights to raise safety issues to MSHA. Indeed, the miners at AT interpreted these messages from Spears and Tidaback as interfering with their rights, as they were fearful of speaking to MSHA because of these statements. Inspector Licklider testified that the miners at AT appeared nervous when MSHA was there, and their behavior was out of the ordinary from the miners at other mines. (¶ 93). In addition, Baumann was fearful to speak to MSHA, other miners told him they were fearful to speak to MSHA, and Wheeler testified he was concerned he would be terminated if he volunteered information to MSHA after being told not to by Spears. Any reasonable miner would have taken these multiple, ongoing statements about not speaking to MSHA and not volunteering information to MSHA from AT management as preventing them from exercising the right to speak to MSHA about safety concerns at the mine. This is particularly true when AT management’s comments directly referenced prior miners who spoke to MSHA and then were swiftly terminated.

Sec.’s Br. at 53-54. (Sec’s references to cited paragraphs from its brief were omitted).

There was utterly nothing presented by Tripoli to excuse its interference.

---

Analysis: For the Interference
Count

---

** The **Secretary, upon investigation, alleges that
Respondent interfered with Mr. Baumann’s rights and that of at least one other
miner in violation of Section 105(c)(1) of the Mine Act in that, on February
14, 2023, MSHA was conducting an inspection of the Respondent’s Mine and on
that date Complainant Baumann and another miner received a message via
Microsoft Teams from John Spears, Respondent’s operations manager, telling the
miner not to answer questions from the MSHA inspector, to not go in the mill,
and Spears as the operations manager continued to state that he would be the
person who would talk to the MSHA inspector. Further, at other times during
Complainant Baumann’s employment, Respondent told miners not to speak to MSHA
during MSHA inspections. Complaint at 3-4.

In
the Exhibit P-34, a Teams message, Tidaback states: “Everyone needs to stop
calling MSHA.” Vol. 1 Tr. 265. This is interference plain and simple. Further,
MSHA Inspector Markeson testified, credibly in the Court’s view, that shortly
after his inspection in February 2023, three miners told him they were
told not to speak with MSHA and they showed him text messages supporting that
claim.

The Secretary contends that those statements to miners, as described above, illegally interfered with the exercise of the miners’ statutory rights in violation of Section 105(c)(1) of the Mine Act by intimidating miners against engaging in activities protected by the Mine Act, including miners’ protected right to report safety issues to MSHA. Complaint at 4. The Court agrees.

Imposition of Civil Penalty
for Each of the Two Counts.

---

** **The Court has given due consideration to each of the
two counts brought by the Secretary of Labor. As noted by the Secretary and
about which the Court agrees:

The Commission considers six statutory factors in its penalty assessment: (1) the operator’s history of previous violations; (2) the appropriateness of such penalty to the size of the business of the operator charged; (3) whether the operator was negligent; (4) the effect on the operator’s ability to continue in business; (5) the gravity of the violation; and (6) the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i). The Court should award a separate penalty for the discrimination violation and the interference violation, as the Act requires a civil penalty for “each such violation” of the Act. 30 U.S.C. § 820(a).

Sec. Br. at 55.

The Court agrees that separate penalties are fully warranted in this case.

The Acting Secretary assessed a penalty of $15,000 for
the discrimination violation and $17,500 for the interference violation based
on information gathered during MSHA’s investigation. AT’s violations of the Act
by interfering with miners’ rights and discriminating against Baumann are
serious offenses which exhibit a lack of good faith and a high degree of
negligence. AT discouraged miners from speaking to MSHA about the multiple
safety issues at the Mine, putting miners in serious danger, as evidenced by
the hazardous conditions miners testified to, like cutting off a lock while
maintenance work was being performed, not having ladders, dangerous silica dust
exposure, and electrical sparks. AT discouraged miners from speaking to MSHA
during ongoing MSHA inspections, including MSHA inspections triggered by miner
complaints and during inspections where Baumann was raising safety complaints
to MSHA and participating in MSHA inspections as a miners’ representative. AT
went out of their way to ignore miner safety complaints, disregarded MSHA
standards and miner safety, failed to provide training, and ultimately
terminated Baumann, who was the miners’ representative and was trying
repeatedly, against strong resistance and constant interference and
intimidation, to improve miner safety at the Mine. See Highland Mining Co.,
37 FMSHRC 2436, 2438 (Oct. 2015) (ALJ) (finding mine operator’s interference
with a miners’ representative’s rights was serious considering the important
function that miners’ representatives serve in ensuring a safe and healthy
environment for miners). AT has not exhibited any good faith in complying with
the Act …”

Id. at 55-56

Although the Secretary conceded that AT had no previous discrimination violations at the time the penalties were assessed, it then asserted that AT has an extensive recent history of safety and health violations, and these past violations must be considered as part of the penalty assessment.

The Court does not agree with
the Secretary. The Secretary’s regulations addressing
violation history interprets the language to include “[o]nly assessed violations that have been paid or finally
adjudicated, or have become final orders of the Commission.” 30 C.F.R. §
100.3(c); See, for e.g., GMS Mine Repair, 72 F.4th
1314, 1318 (D.C. Cir. 2023) and Brody Mining, 36 FMSHRC 2027, 2038,
(Aug. 2014). Tripoli’s current ownership, headed by Mr. Tidaback, was acquired
in June 2021. Vol. 1 Tr. 40. Accordingly, the history, being so recent, and
outside of consideration, does not count for and against Tripoli.

In
the same vein, the Secretary’s argument regarding AT’s history of violations,
while reacknowledging that it did not have a history of Section 105(c)
violations, still remarks that “MSHA assessed a subsequent penalty against AT
for terminating another[36] miner in violation of Section 105(c) in a case still
pending with the Court.” Sec. Br. at 33, (emphasis added).

The Court departs from and disagrees with the Secretary’s remark that it should consider another discrimination claim, which claim is unresolved and involves another employee of Tripoli. That case is assigned to another administrative law judge. Being outside of the proper scope of Tripoli’s violation history, that other case plays no role in the Court’s penalty determination.

Speaking to the factors of size and
ability to continue in business, the Secretary remarks: “the record establishes
AT is a small employer, but AT did not present any evidence that any civil
penalty assessed would cause the company to go out of business.” Id. at

57. Those remarks are accurate:

In terms of the civil penalties sought by the Secretary for the discrimination and interference counts, the Respondent states only that both counts should be dismissed in their entirety. Thus, Tripoli made no contentions about any of the statutory penalty consideration such as its size, violation history, and good faith in achieving rapid compliance.

The
mine’s small size, was considered, as was the absence of any contention that
the penalties sought by the Secretary would interfere with its ability to
continue in business. Nevertheless, considering the Court’s conclusions that
the negligence, gravity and lack of good faith associated with Tripoli in this
matter were of such a serious level that, at a minimum, the penalties sought
were fully warranted. See the Court’s extensive Findings of Fact, fully
supporting its determinations regarding those three penalty factors.

**
**ORDER

Based
on the foregoing Findings of Fact and the Court’s Analysis, the Court ORDERS
a civil penalty in the amount of $15,000.00 for the discrimination violation
and $17,500.00 for the interference violation.[37] Given the entire record in this case, including Tripoli’s
high degree of negligence, the lack of good
faith, and the Court’s determination that Tripoli’s assertions lacked
credibility, the Court could well have imposed larger penalties for these
Counts.

Regarding
Complainant Robert Baumann, as set forth above, the Court awards damages in the
amount of $9,920.00 in back wages to him. The Court also awards interest
on backpay in the amount of $632.00 through February 27, 2024, plus the
additional interest accrued from that date to the actual date of payment, which
date is presently unknown, applying the Arkansas-Carbona formula for
the additional interest. Tripoli is ORDERED to pay these amounts to Mr.
Baumann.

The
Court ORDERS that Tripoli shall remove from Robert Baumann’s personnel
file any mention of any employment action stemming from this incident and to
expunge Baumann’s termination from his personnel record and only provide a
neutral reference for any inquiries regarding him.

Further, American Tripoli is ORDERED to post a notice at Tripoli’s Mill, in a conspicuous location, and on hard stock board of at least 11 x 17 inches size, setting forth the rights of miners protected by 105(c) of the Mine Act. Given the mine’s history of rapid employee turnover, the notice shall remain in place for 1 year. If weather or other factors cause the notice to become deteriorated, a new notice of equivalent composition shall be posted.

SO ORDERED

/s/
William B. Moran

William B. Moran

Administrative Law Judge

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Distribution List:

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Russell Tidaback, Jordon Tidaback, American Tripoli, 222 Oneida Street, Seneca, MO 64865

([email protected]) ([email protected])

Laura O’Reilly, Esq., U.S. Department of Labor, 2300 Main Street, Suite 10100, Kansas City, MO 64108 ([email protected])

Elaine M. Smith, Esq., U.S.
Department of Labor, 2300 Main St., Suite 10100, Kansas City, MO 64108 ([email protected])

Quinlan B. Moll, Esq., U.S.
Department of Labor, 2300 Main St., Suite 10100, Kansas City, MO 64108 ([email protected])

Robert Baumann, ([email protected])

[1]
There are thirteen circuits for the United
States Courts of Appeals. About the U.S. Court of Appeals, USCourts (May 9, 2024), https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals.

[2] This Court believes that a “but for” essentially
existed under the Commission’s Pasula- Robinette standard in that
a mine operator could rebut the prima facie case by showing either that
no protected activity occurred or that the adverse action was in no part
motivated by protected activity. The difference, it would seem, is that under
the “but for” approach, that burden is placed on the complainant. Even so,
where a complainant, as in this case, presents a plethora of credible
information in support of its position and a respondent’s slate is empty, the
burden is met.

[3] In Greathouse, Administrative Law Judge
Margaret Miller noted that “a majority of the Commission has recognized that
‘the Mine Act establishes a cause of action for unjustified interference with
the exercise of protected rights which is separate from the more usual
intentional discrimination claims evaluated under
the Pasula-Robinette framework.’ … [and that] in interference
cases the Commission has focused not on the employer's motive, but rather on
whether the conduct would “chill the exercise of protected rights,” either by
the directly affected miner or by others at the mine. [citing] Gray,
27 FMSHRC at 8; Moses, 4 FMSHRC at 1478-79. Greathouse, 38 FMSHRC 941, at
947 (May 2016) (ALJ).

Greathouse was mentioned
again in McNary v. Alcoa, 42 FMSHRC 9 (Jan. 2020) (“McNary”)
wherein it noted “[i]n Secretary of Labor on behalf of Greathouse v.
Monongalia Coal Co., 40 FMSHRC 679 (June 2018), a four-member Commission
divided evenly regarding the proper analytical framework for interference
claims. Two Commissioners stated that they would apply a test developed by two
Commissioners in UMWA on behalf of Franks and Hoy v. Emerald Coal Resources,
LP, 36 FMSHRC 2088 (Aug. 2014), in which protected activity need not cause
the operator action giving rise to an interference claim. The other two
Commissioners concluded they would apply Secretary of Labor ex rel. Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 14, 1980), rev'd on other grounds,
663 F.2d 1211 (3d Cir. 1981), and its progeny to claims of interference. Id. at
681, 708-16. McNary at n.8

[4] 30 U.S.C. §813(g)(1) affords the statutory right for
a representative of miners or a miner, who has reasonable grounds to believe
that a violation of a health or safety standard exists, or an imminent danger
exists, to obtain an immediate inspection by giving notice to the Secretary or
his authorized representative of such violation or danger. The notice is
reduced to writing but the name of the person giving such notice and the names
of individual miners referred to therein shall not appear in such copy or
notification.

[5] Although the D.C Circuit declined to decide whether
the Franks Test is the proper for interference claims in that case, any
reasonable reading of that decision would conclude that it supported the test. It
remarked “[i]t is beyond dispute that the Commission’s finding of interference
in this case was supported by substantial evidence under any
applicable test construing Section 105(c)(1).”

[6] Jordan Tidaback is the daughter of Russell Tidaback. Tr.
164.

[7] The mill is located in Seneca, Missouri. Id.
at 65. Baumann described the operation generally, stating “[t]hey mine the rock
out at the pit. They bring it into Seneca to the processing plant. They dump it
in a pit. It goes through a crusher. Goes up into big holding tanks, and then
when we were producing or trying to produce, it would come out of the tanks
into a fluid bed dryer to dry the product and then into a tube mill, which
actually crushed it up into a fine like powder. And then it went through a --
basically an air system type thing that classified what grain or whatever, you
know, how fine the powder was, whether we were running once ground or double
ground, and then it went through classifiers, shakers, up through a big system
into the finished goods hopper to go into a bag.” Vol. 1 Tr. 53-54. In response
to an inquiry by the Court about the size of the operation, Baumann estimated
that it had about 20 employees. Id. at 55. Though not testifying at that
point in the hearing, Mr. Tidaback asserted that the number of employees was
less than 12. Id. Either way, the Tripoli Mill is a small mine.

[8] The witness was unsure of the words for the acronym,
but explained that it refers to respirators with filters. Tr. 247. PAPRs are
identified as “Powered Air Purifying Respirator, … “PAPRs provide a constant
flow of filtered air, which offers respiratory protection and comfort in hot
working environments.” Petition Docket No.
M-2022-040-C, MSHA (Jul. 31, 2023), https://www.msha.gov/petition-docket-no-m-2022-040-c

[9] This was essentially true. [Ex.
P-4,]a payroll record for the Complainant, reflects that Baumann was paid
for only three hours of overtime during the period from July 1, 2022 through
April 21, 2023, essentially ten months. Thus, that exhibit reflects that his
overtime was miniscule. Id. and Tr. 76-77.

[10] Mr. Tidaback objected, as Baumann’s testimony
conflicted with the certificate. The Court ruled that Respondent could raise
this issue during cross-examination. Tr. 85-86. Baumann did check ‘new miner
training’ on the certificate box, but he stated that at that time he did not
know what new miner training entailed. Id. at 86-87. He stated that he
did not know that the training encompassed all the topics checked off on this
training list. Id. at 87. Baumann contended that he never received 24
hours of new miner training while working for Tripoli. Id. at 87-88. The
point is that Baumann, at least by his testimony, which the Court found to be
credible, did not receive all of the required training. Further, he stated
that he never received any other additional training after July 5, 2022. Id.
at 88. Elaborating, Baumann responded to the following inquiries from the
Secretary’s Counsel, affirming that he was never supervised closely prior to
July 5, 2022, the date when he received his new miner training. Id. at

89. After that training, he never received close supervision by anyone while he
    was working at American Tripoli, and never received any task training on the
    jobs he would be performing while working at American Tripoli. Id. Nor
    did he ever observe task training being carried out, while he worked at
    American Tripoli. Id. He only became aware of these training
    requirements when so informed by MSHA inspectors during their inspections from
    December 2022 to February 2023. Id. Based on the credible testimony of
    other Tripoli employees, the Court concludes that Tripoli came up short in
    meeting its obligations for training its miners.

[11]In response, Mr. Baumann described his duties,
generally. He informed that when on the second shift he would overlap the day
shift by 30 minutes. Tr. 96. He would then find out if the day shift was having any problems,
and anything like that for which he could provide assistance. Id. at
96-97. He would also get the bulk bags and other items, such as pallets, ready
for his shift. Id. at 97. His duties were to feed the rock (i.e. the
Tripoli) out of the tanks into the dryer, through the fluid bed dryer system
and then into the bags. Id. He would then label the bags to identify the
customers where they would be sent. Id. This was part of the process to
get the orders ready. Id. The process would end with shutting down
phase. Id. In sum, there was a start-up phase, running the material to
fill orders and, last, a shut-down phase. Those were the phases on a good day,
when things went smoothly. Id. On a bad day, if something broke, that
would have to be addressed. Id. There were other factors impacting
production. For example, the temperature, moisture and humidity could
interfere with running the product. Id. Baumann would walk around about
once an hour to make sure all the scrolls and all the pieces were moving in
order to prevent backups or excessive dusting outside of the stacks and other
issues like that.’ Id. at 97-98. His duties encompassed the
entire mill; they were not confined to a certain area of the mill. Id.
at 98. He agreed that he interacted with all the employees at the mill. Id.
at 98-99. Around December of 2022 or January 2023, he started doing workplace
exams. Id. at 100. However, he never received any training how to do
those exams. Id. at 101.

[12] The message lists one participant as “UU.” Baumann
explained that stood for ‘unknown user,’ which he identified as Wheeler in that
instance. Vol. 1 Tr. 156-157. Mr. Tidaback
stated that Exhibits P -8 and P-9 contain the same information. Id. at 161.

[13] One involved the bagger for the tripoli product. “So
the bagger, it bags. It shoots product into a hundred pound bags. They had had
multiple problems. It started giving them problems, and Mr. Tidaback and Mr.
Spears were telling … the mill associates to run it. The electrical box was
open with a jump wire across it, and they were telling them to run it like
that, running a little toggle manual switch. And I brought that up multiple
times to both of them.” Vol. 1 Tr. 198-199.

[14] Another instance Baumann cited involved a dam
underneath the tube mill that was created by the tripoli. Vol 1. Tr. 189. The
material, which had oil in it too, damned [sic] up underneath the tube mill. Id.
MSHA wrote a citation for this condition, asserting that it was a fire hazard. Id.
Though Baumann asserted that he tried to clean it up, he was told the mine was
not doing that. Id. There was also an instance involving product on the
floor in front of an electrical thing. Id. at 190. Though Baumann
started sweeping it up, he was told not to do that as the product was going to
be reused. Id. This was in spite of the MSHA inspector advising that it
needed to be removed as it was covering an entranceway to an electrical box. Id.

[15] Tripoli refers to its employees as “associates.” See,
for e.g., Vol. 1 Tr. 177- 178.

[16] Specifically, this pertained to Respondent's Third
Interrogatories Answers and Responses for Production of Documents. Vol. 1 Tr.
213.

[17] It is noted that the Secretary, in her post-hearing
brief, repeatedly incorrectly referred to Mr. Huber as Mr. Hoover. The pages
cited by the Secretary refer to Mr. Huber, a mill employee; there is no mention
of anyone named Hoover in the transcript. The mysterious reference to Hoover
was solved by the Court. See footnote infra.

[18] The Court notes the use of the future tense.

[19] Baumann informed that there was no one named Keith
working as an employee at the mine, but there was an MSHA inspector at the
mine; Keith Markeson. Tr. 264. Markeson was the inspector who issued the 104(b)
citation. Id.

[20] The Court took a moment to explain to Mr. Tidaback
that whether the correct name for Mr. Baumann’s job title was ‘production
supervisor’ or ‘production lead,’ does not really count for much as the focus
is upon whether the complaining employee engaged in protected activity and had
an adverse action associated with that, regardless of his job title. Vol. 1 Tr.
305-307.

[21] The Court commented that this question was plainly
aimed as an attempt by Mr. Tidaback to establish an affirmative defense, that
he would have fired Baumann anyway because of such alleged intemperate
behavior. Vol. 1 Tr. 325. Mr. Tidaback agreed with the Court that was his
intention behind those questions. Id. at 326. The problem, however, is
that Respondent never established any credible testimony, or other evidence, to
show this improper behavior occurred.

[22] Exhibits R-L and P -40 involve the same training
certificate, but they are not identical, as Exhibit R-L is undated. Vol. 1 Tr.

338. Consequently, the Respondent was satisfied to have only P-40 admitted. Id.
     at 335.

[23] Mr. Tidaback informed that his questions were intended
to contradict Baumann’s assertion that he did not receive all of his new miner
training. Tidaback’s position, which was an assertion and not made as
testimony, was that the training was available online and accessible for
Baumann. Vol. 1 Tr. 342-343.

[24] The Court explained its point about the deficiency
with proposed Exhibit R-P further, stating “[f]or example, let's say that the
three times in 2022 you said, hey, Mr. Baumann, I want you to pay attention to
guarding, and then you give me dates through your Microsoft chat or whatever,
Teams. You don't have that. The first time you have mention about this is in
the wake of getting some citations from MSHA, so I find it difficult for you,
if you're attempting to put the blame on Mr. Baumann on the issue of guarding,
that the first time on this record that this shows up is after you got the
citations from MSHA. And apparently, you're suggesting that would be on him,
not doing his job properly because you had guarding citations.” Vol. 1 Tr. 372.

[25] The Inspector briefly described the mine’s operation:
“They quarry their material over in Oklahoma. That material is then trucked
over to drying sheds on the Missouri side. Dries for a period of time there,
and then it is trucked again to the plant in Seneca, Missouri, where it is
crushed and ground and sized and then packaged for sale.” Vol. 2 Tr. 357-358.

[26] The Court made note that this discrimination case is
not about trying the citations issued by any MSHA inspector to American
Tripoli. Vol. 3 Tr. 11.

[27] Jordan Tidaback, Russell Tidaback’s daughter, did not
testify. All references to testimony from Tidaback refer to Mr. Tidaback, not
his daughter.

[28] The analyses’ portions in this Decision are derived
from the Court’s determinations of those findings of fact, which were found to
have been credible.

[29] Instead of showing that all training was conducted,
the Respondent tried to make an issue that Baumann had signed the initial new
miner training certificate as having been completed. Baumann credibly responded
that, when he signed the form, he did not know what that training actually
required. See the Court’s earlier footnote 10 on this issue in the Findings of
Fact.

[30] As noted in the findings of fact, there were
certainly ample means to communicate with one another at the mine. As Baumann
informed, there were groups of American Tripoli employees communicating with
each other on Teams. There were multiple, different, categories such as a
maintenance group, a general group, a mill management and a production group. People
could also communicate individually. Baumann was able to communicate with John
Spears in this way too. In contrast, Baumann described his communication with
Mr. Tidaback as only “on occasion.” However, Baumann informed that Tidaback
would be able to view messages sent through Teams. Significantly, Baumann stated
he was never told that he failed at using Microsoft Teams effectively while
working at American Tripoli. The Court notes there is no record evidence
contradicting Baumann’ statement about his effective use of Teams Chat.

[31] If the mine was running well, the mine would run
about 15,000 pounds in product and during Spears 18 months of employment the
40,000 lbs. of product goal was only met 20-30 times. Ironically, during the
last six weeks of Baumann’s employment, Tripoli approached the 40,000 lbs. goal
more than once. Sec. Br. at 24.

[32] Spears displayed the same animus to MSHA earlier
when, on April 14th, on the Teams message he made this virulent remark, “I'm
telling you guys... [MSHA inspector] Keith [Markeson] is a snake... be cautious
on what you say to and around him. Any MSHA inspector really.” Vol 1. Tr. 276, (emphasis added).

[33] As the Secretary notes and the Court so finds, regarding
Respondent’s Exhibit: R-B, Tidaback’s personal notes, that exhibit is quite suspect
and is disregarded by the Court as a failed attempt to justify Baumann’s
termination. As the Secretary correctly remarks, those “notes were not produced
in the form seen in R-B during MSHA’s investigation. Rather, Respondent
provided a different version of those notes than in P-45. In Ex. R-B, an
entirely new entry, dated February 14, 2023, that was not provided to MSHA, was
the date Baumann started walking around with MSHA pointing out certain safety
concerns he had to MSHA and AT. [] There is no reason why, if this entry was
made contemporaneously with the event, it would not appear in the version of
the document provided to MSHA. Another indication that these notes are not
reliable is the date of the document. R-B is dated not only after Baumann was
terminated, but on the same day Tidaback was served with Baumann’s
discrimination complaint. []. These inconsistencies solidify that these
“notes” are not a reliable or credible source of information and are nothing
more than AT backfilling a reason to terminate Baumann, after he was
terminated. Not only are there issues on the face of R-B, but the substance of
the document was not supported by the testimony at trial. Sec’s Br. at 48.

[34] In awarding this backpay, the Court subscribes to the
Secretary’s remarks in its Post-Hearing (“Post-Trial) Brief, wherein it noted:
“During Baumann’s unemployment, he collected unemployment benefits from the
State of Kansas. (See Vol. 1 Tr. 285:11-14; 290:9-21). However, none of these
amounts should be subtracted from an award of back wages to Baumann. The
Commission has recognized that unemployment should not be deducted from the
backpay awards of miners discharged in violation of Section 105(c). See
Secretary of Labor on behalf of Poddey v. Tanglewood Energy, Inc., 18
FMSHRC 1315, 1325 (August 1996) (citing the Fourth Circuit’s decision in Secretary
of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir.
1996) and reversing the judge’s deduction of unemployment compensation from the
Complainant’s backpay award). In addition, the State of Kansas requires Baumann
to pay back the unemployment he received if he receives any back wages award. See
K.S.A. § 44-706(s)(1) (“For any such weeks that an individual receives
remuneration in the form of a back pay award or settlement, an overpayment will
be established in the amount of unemployment benefits paid and shall be
collected from the claimant.”). As such, subtracting unemployment benefits from
the award would charge Baumann double for the unemployment benefits as he would
still be required to pay back the State of Kansas.” Sec’s Br. at 50, n. 24.

[35] In this respect, the Court also agrees with the
Secretary’s remarks on the issue of interference, to wit: “under section 105(c)
of the Act interference is a separate and distinct violation from
discrimination. McNary v. Alcoa World Alumina, LLC, 39 FMSHRC 433, 449
(2017) (“Section 105(c)(3) permits an individual to file a complaint charging
‘discrimination or interference’ in violation of section 105(c)(1).”). The
Acting Secretary interprets the Act as prohibiting acts that reasonably tend to
interfere with protected rights, the motive for those acts notwithstanding. See,
e.g. Marshall Cnty. Coal Co. v. FMSHRC, 923 F.3d 192, 198-99 (D.C. Cir.
2019); Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (2014). The
Court should find a violation of the interference provision of Section 105(c)
of the Act if: “(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.” Franks, 36 FMSHRC at 2108.” Sec’s Br. at 52-53.

[36] The improperly cited case, Hoover v. AT, does
at least explain the Secretary’s mistaken reference in its Brief to Hoover,
when it meant Huber.

[37] Pending any appeal rights, the Respondent is to pay
the full imposed penalty amounts within 30 days of the date of this decision.
Penalties may be paid electronically at Pay.Gov, a service of the U.S.
Department of the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. It
is vital to include Docket and A.C. Numbers when remitting payments.