Consolidation Coal Company
Consolidation Coal Company (FMSHRC CENT 85-89-D): Retaliatory reprimand for equipment tag-out found
Apply this to your situation
This order from 1986 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
DuWayne Schafer, a heavy-equipment operator at the Glenharold Mine, tagged out a motor grader twice because its brakes were slow to engage and the machine was being used on an inclined roadway near a drop-off. Judge Michael A. Lasher, Jr. found that Schafer acted reasonably and in good faith in reporting a safety concern, and that Consolidation Coal reprimanded him in retaliation after management failed to follow its own tag-out procedures. The judge ordered the reprimand removed, required record clearing and a 60-day posting, awarded litigation costs and expenses, and assessed a $1,000 civil penalty. He denied Schafer's claim for $16.61 in lost pay for time spent trying to contact an MSHA inspector.
Decision snapshot
- Governing provisions: 30 U.S.C. § 815(c)(1) and § 820(i)
- Outcome: The discrimination violation was found, the reprimand was ordered expunged, and a $1,000 penalty plus costs and expenses was ordered.
- Key point: Tagging out equipment believed to be unsafe is protected safety activity when the miner acts reasonably and in good faith.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19861017
TTEXT:
Page 2
~1568
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 85-89-D
ON BEHALF OF
DUWAYNE SCHAFER, Glenharold Mine
COMPLAINANT
v.
CONSOLIDATION COAL COMPANY,
RESPONDENT
DECISION
Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
Gregory Lange, Esq., Richardson, Blaisdell, Isakson
and Lange, Hazen, North Dakota, for Respondents;
Deborah Fohr Levchak, Esq., Office of the General
Council, Basin Electrical Power Cooperative,
Bismarck, North Dakota, for Respondents.
Before: Judge Lasher
This proceeding was initiated on May 20, 1985, by the filing
of a discrimination complaint by William E. Brock, Secretary of
Labor, on behalf of DuWayne Schafer (herein "Schafer"). The
Secretary's complaint, as twice amended, alleges that Schafer was
reprimanded in violation of Section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq., (Supp.
V., 1981) (herein "the Act") and seeks as a remedy therefor one
day's back pay with interest, and correction of Schafer's
employment record including removal of the reprimand. In
addition, the Secretary prays that a $2,000.00 civil penalty be
assessed against Respondent pursuant to Section 110 of the Act.
PRELIMINARY FINDINGS
The preponderant reliable and probative evidence, based on
the testimony and documentary evidence received at the formal
adversary herein and pleadings, establishes the following:
Page 3
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The Glenharold mine, a large surface coal mine (T. 366), in
November, 1984, and at all times material herein, while owned by
Respondent Basin Cooperative Services (herein "Basin") was
operated, supervised and controlled by Respondent Consolidation
Coal Co. (herein "Consolidation"). At the hearing, it was
conceded that both Respondents are subject to the Act and the
Commission's jurisdiction. Since Consolidation operated,
supervised and controlled the mine (T. 286) it was the "operator"
at the times pertinent herein, and as the record demonstrates,
directly responsible for any violation of the Act by its
management personnel which occurred during the period in
question.(FOOTNOTE 1) The superintendent of the mine in November,
1984, and at all times material herein was Marvin Suess, an employee
of Consolidation (T. 416Ä418).
In November 1984, Schafer, an employee of Consolidation, was
a heavy equipment operator (sometimes referred to as a "blade
operator"), who regularly operated a Cat. No. 16 Motor Grader,
referred to in the record as the "GÄ4". At the times pertinent
here, the Glenharold Mine utilized three motor graders
("blades"); the one directly involved in this proceeding was a
standby for use when the other 2 were being repaired and is
referred to in Respondents's mining jargon as the "GÄ3"; it is
similar to that depicted in Exhibit 17 (T. 31Ä34). The GÄ3 has
disc brakes and can travel up to speeds of 7Ä8 MPH in fourth gear
(T. 123) and 28 MPH in eighth gear.
During the relevant time period the mine was operated around
the clock--three 8Ähour shifts; the GÄ3 blade was subject to use
each shift.
On November 12, 1984, Schafer's usual GÄ4 blade was being
repaired and his assigned task was to operate the GÄ3 grader on
the afternoon shift (4 p.m. to midnight) doing reclamation work
on the surface ("top") of section 5 of the mine consisting of
removing overburden and dumping it in an area shown as the
"spoils" area on the depiction marked Exhibit 3ÄA. This required
him to operate his diesel-powered grader along a mile-long
inclined roadway (T. 45, 59, 191, 401Ä402, 414) between the
highwall on the south side of the pit and the spoils area. Other
vehicles, such as scrapers, pickups and haulage trucks, were also
traveling along the roadway. (T. 36Ä46, 58). It was very dark (T.
46). There was a 4Äblock distance where there were no berms with
a 30Äfoot straight-down drop if the blade had gone over the side
(T. 55Ä57).
Page 4
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At the beginning of his shift on November 12, Schafer performed
his usual safety check of the blade and noticed some lights
thereon were not working and that a mirror was missing. He called
his foreman, Dean Bray (T. 61, 369) who sent out an electrician
who fixed the lights and brought out a mirror which Schafer
installed. When the electrician left, Schafer operated the blade
for about 3 hours (T. 61, 62) and noticed "the brakes were not
holding well" (T. 46, 136). The brakes were getting worse each
time he used the brakes, according to Schafer (T. 46Ä47). Schafer
described the problem as follows:
"A. Well you would go to step on the brakes and it
would take awhile before they would grab and then it
wouldn't stop like it should. Normally if you slam on
the brakes, it will stop.
* * * * * * *
A. You should be able to slide the tires on it.
Q. What does that mean?
A. Lock up the brakes so the tires don't go around on
it. You should be able to to stop down on the brakes
and the tires lock right up, they don't go around.
* * * * * * *
A. Well until the tires stop--from the time you step on
the brakes until the tires stop turning, shouldn't be
more than one to two seconds.
* * * * * * *
Q. Now on November 12, what were the problems with the
brakes that you experienced?
A. They had--I noticed that they were considerably
worse, so I run it that way for a part of the shift.
Q. What do you mean by considerably worse, what
happened when you stepped on the brakes?
A. It was--the pedal would go to the floor and it was
taking considerably longer until they would grab. It
was taking approximately five seconds from the time
you'd step on the pedal until they would grab, and then
you would only coast to a stop, it wouldn't stop it
like--you know, or lock up the wheels or anything. It
would just kind of coast to a stop.
Q. How far did you go from the time you stepped on the
brakes until the time the equipment stopped--how much
time?
A. I would say on a flat surface with it warmed up and
everything, from the time they would actually start
grabbing--it'd be five seconds from the time you'd step
Page 5
on the brake approximately till they would grab; from
the time it would grab until it would stop, a minimum
of 20 feet--minimum.
Q. That was on a level surface?
A. Right, in fourth gear, which is approximately seven
miles an hour. I don't really know for sure, that's
just my guess.
Q. How fast were you traveling on that particular
evening?
Page 6
~1571
A. Anywheres from--depending on what type of situation I was
in, anywheres from second to fourth gear while I was blading.
Q. And do you have any ideal how many miles per hour
that would be?
A. Well like I say, fourth gear I think is
approximately seven miles an hour, seven to eight." (T.
47Ä49).
On November 12, Schafer operated the GÄ3 from about 5 p.m.
to 8 p.m. during which time the last 4 transmission gears,
numbers 5 through 8, became inoperative and a ball joint on the
steering axle broke. (T. 62, 137). At approximately 9 p.m. he
tagged out the GÄ3 (T. 65, 66 171,; Ex. 8) and took it to the
repair shop after calling the shift foreman, Dean Bray and
telling him that the transmission was out, that the ball joint
had broken and that the brakes needed to be adjusted (T. 65, 138,
139). Bray told him to take it to the shop. At the shop, Schafer
reiterated to the shop foreman for that shift, Rich Schneider,
the three items which needed repair.
Tagging out equipment is an equipment operator's means of
alerting management that the equipment is unsafe (T. 413).
Schafer's safety concerns as to the brakes were thus communicated
to management personnel both orally and in writing.
At a speed of 7 MPH (approximately the top speed of the GÄ3
with the top 4 gears of the transmission out) the GÄ3 would
travel 20Ä40 feet over a 5Äsecond period after the brakes were
applied before it would stop in some of the conditions Schafer
was operating in on November 12 depending on whether the roadway
was flat or inclined (T. 69, 140, 141). Part of the area of
roadway Schafer was working was inclined (T. 43Ä45, 58Ä59, 63,
68, 191, 195, 198Ä200).
Consolidation's Tag-out Procedure, reflected in a 2Äpage
memorandum from "Mike Quinn" to "all employees" dated January 8,
1981, as a "Safety Topic for the week of January 19, 1981" (Ex.
4), provides as follows:
"PROCEDURE FOR TAGGING OUT DEFECTIVE EQUIPMENT"
In order to insure that defective equipment is not
operated and that equipment is not needlessly taken out
of service, the following procedure should be followed
when placing a "DO NOT OPERATE" tag on a piece of
equipment.
1. Any individual can tag out a piece of
equipment. However, the individual should know
enough about the machine to determine if it is
safe.
2. If you place a "DO NOT OPERATE" tag on
equipment, you must:
Page 7
A. Immediately inform your foreman that you have
done so.
Page 8
~1572
B. Write on the tag exactly why it should not be
operated.
C. Put your name, the date, and the time on the
tag.
D. Turn in a safety maintenance request and note
that the equipment has been tagged out of service.
3. To remove a "DO NOT OPERATE" tag:
A. Anyone can remove the tag if the defect has
been fixed. It should be noted on the copy of the
safety maintenance request sheet that it has been
fixed.
B. The tag should not be removed until the defect
is fixed or it is determined by one of the
following people that the defect does not merit
taking the equipment out of service.
1. Safety Director
2. A member of the Safety Committee
3. The individual that placed the tag
4. A Foreman
a. If a Foreman or the Safety Director removes the tag
prior to the repair of the defect, an explanation
should be given to the person who tagged the equipment
out or a member of the Safety Committee. If there is
no mutual agreement that the tag should be removed, the
issue shall be considered a Health and Safety Dispute
under Article III, Section (O) of the Contract.
C. If the tag is removed prior to repair of the
defect, it should be noted why and by whom on the
safety maintenance request.
D. In some instances the use of a defective piece
of equipment is permissible if it is done under
limited circumstances and with an awareness of the
defect. If this becomes necessary, the
circumstances and precautions taken should be
noted. An Example: The brakes don't work on the
polecat. It is parked by bucket hardware that
needs to be loaded onto the two ton truck. Without
moving the truck someone blocks the wheels and
used the hoist.
Company policy effective January 19, 1981.
s/ Marvin R. Suess
MARVIN R. SUESS
SUPERINTENDENT
Page 9
~1573
The frontside of the tag (Ex. 8) which Schafer placed on the
steering wheel of the GÄ3 at the time provided as follows:
"DANGER
EQUIPMENT NEEDS REPAIR
SIGNED BY S/ DuWayne Schafer
DATED 11Ä12Ä84
The back side of the tag provided:
"DANGER
DO NOT REMOVE THIS TAG
Left steering cylinder has broken ball joint
Brakes need adjusting
SEE OTHER SIDE" (Note: The capitalized wording
reflects the standard printed portion of the tag
form; lower case is the part filled in by Schafer
in his handwriting)
Subsequently, in handwriting, the word "Repaired" was put in
by Lee Brown, repair shop foreman, behind the word "ball joint"
and behind the word "adjusting" the following note was made:
"Miles Dochtor checked out and they seemed safe to him. LB.
(FOOTNOTE 2) 11Ä13Ä84"
Miles Dochtor's testing of the brakes was performed on a
level surface (T. 338). Miles Dochtor's report back to Lee Brown
was that there was a "slight pause" on the brakes, "maybe a
couple of seconds or something". He did tell Mr. Brown how fast
he had driven the GÄ3. Dochtor indicated he thought the brakes
were safe and also that he believed the GÄ3's brakes needed
repair (T. 339, 340). Because Brown thought the GÄ3 was needed,
he did not then repair the brakes but sent it back out for
operation (T. 340), removed the tag and gave it to his
supervisor, Merle Anderson (T. 341, 391). According to Mr. Brown
it "very seldom" happens that he removes a tag before all repairs
are completed (T. 342). In fact, the only tag Brown had even
taken off a machine was Schafer's first tag on the GÄ3 (T. 351).
This constitutes a change in Respondent's procedures which I find
Schafer could not have anticipated.
Page 10
~1574
After leaving the GÄ3 blade in the shop for repair, Schafer
operated a scraper for the rest of his November 12 shift (T. 68,
387).
On the following day, November 13, 1984, Schafer returned to
the mine to commence work on the 4 p.m. to midnight shift. The
GÄ3 was at the job site and Schafer performed his usual safety
check,(FOOTNOTE 3) drove the GÄ3, and "realized that the brakes were
the same as they had been the night before." (T. 68, 142). He called
the shop foreman for that shift (T. 384), Rich Schneider, on his
radio and asked him if there was any plan to repair the brakes.
Schneider said that they didn't want to repair it until after
repairs on the GÄ4 were completed (T. 68, 477, 478). Schafer
asked what happened to the tag he had put on it the night before
and Schneider said he knew nothing about it (T. 68Ä70, 111, 146).
Schneider didn't say, and Schafer did not know, when the GÄ4's
repairs were due to be completed (T. 146). Management did have
"plans" to repair the GÄ3's brakes (T. 147, 277) but did not want
to make such repairs until after the GÄ4's repairs were completed
(T. 68, 86, 365, 384Ä386, 477Ä478, 527Ä528) which was anticipated
to be on Wednesday, November 14 (T. 384).
Schafer than called Dean Bray, his foreman, at approximately
4:30 p.m. and asked him to bring him another tag for the blade.
Bray said nothing but after a while he came to where Schafer was
and asked Schafer to take a pickup and go fuel a light plant.
Bray told Schafer he would get him a tag later. Schafer then
fueled up the light plant, and found a tag in the pickup which he
then, about 5 p.m. (T. 172, 173), put on the GÄ3 blade between 7
p.m. and 8 p.m. (T. 109) Bray asked Schafer if the GÄ3 was in too
bad shape to take to the repair yard. Schafer said he could bring
it there (a distance of 5 or 6 miles) in slow speed (T. 70Ä72,
389, 390). Bray did not mention opposing putting a tag on the
blade at that time (T. 70Ä72) or that it wasn't company policy to
put a second tag on the machine (T. 72). When Bray arrived for
work on November 13, he did not ask anyone if the blade had been
repaired the night before, but "assumed that it had been taken
care of or it wouldn't be out there again" (T. 403Ä404).
The tag which Schafer put on the GÄ3 on November 13, 1984
(Ex. 9) was on the same printed tag form as Ex. 8 and provided on
the front side:
"DANGER
EQUIPMENT NEEDS REPAIR
SIGNED BY s/ D.M. Schafer
Date 11Ä13Ä84
7:00 p.m. "
Page 11
~1575
The rear side of the tag provided:
DANGER
DO NOT REMOVE THIS TAG
Brake [sic] do not operate properly
Do not grab right away or hold very well.(FOOTNOTE 4)
SEE OTHER SIDE"
Schafer's reason for putting the second tag on the GÄ3 was
that he "felt that it was still as unsafe as it was before to
operate and they had done nothing about it to make it any
better." (T. 73). Schafer was aware at the time that the tags
prevented others from using the equipment (T. 73). If the
operator of a blade felt it was unsafe, the method used to alert
management was placing a tag on it (T. 413, 458).
At approximately 9 p.m., Schafer took the GÄ3 to the repair
shop and went into the "warehouse" where four foreman were
sitting having coffee, Rich Schneider, Larry Klinsworth, Dean
Bray and Kenny Redka, and told them that the "next time somebody
takes that tag off--some foreman takes that tag off, some foreman
is going to be in trouble." (T. 76).(FOOTNOTE 5)
At this point in time, no foreman or anyone in management
had told Schafer why the brakes had not been repaired, why the
tag had been removed, who had removed it (T. 77, 82, 104,
108Ä112, 308Ä310, 341, 358, 359, 463, 476, 477, 506Ä507) or given
any explanation other than Schneider's statement to him that they
did not want to fix the GÄ3 until the GÄ4's repairs had been
finished. (T. 77, 82, 308Ä309, 312, 527). As noted previously,
the GÄ3's brakes were scheduled for repairs in "a day or so"
thereafter, after the GÄ4 blade came out of the repair shop (T.
308, 312Ä313).
Schafer also had not been advised: (1) that a member of the
Safety Committee had reviewed the GÄ3's brakes as required by
Article III, Section (i) of the union contract (Ex. 19, T. 81,
82, 409), the pertinent portion of which is set forth
subsequent
Page 12
~1576
ly herein. Nor had Schafer been advised (2) that the GÄ3 was safe
to operate in particular areas of the mine or under specified
conditions (T. 77, 82, 308Ä311, 359, 407, 408, 464, 507).
In this connection it should again be noted that
Respondent's own procedure for tagging out Defective Equipment
(Ex. 4) provides:
"The tag should not be removed until the defect is
fixed or it is determined by one of the following
people that the defect does not merit taking the
equipment out of service.
1. Safety Director
2. A member of the Safety Committee
3. The individual that placed the tag
4. A Foreman
A. If a Foreman or the Safety Director removes the tag
prior to the repair of the defect, an explanation
should be given to the person who tagged the equipment
out or a member of the Safety Committee. If there is no
mutual agreement that the tag should be removed, the
issue shall be considered a Health and Safety Dispute
under Article III, Section (O) of the Contract."
(emphasis added)
After Schafer took the GÄ3 to the shop, he asked Dean Bray
who had removed the first tag. Bray said that he wasn't sure, and
told Schafer to eat his lunch (T. 407) and they would talk about
it after lunch.(FOOTNOTE 6) Bray then discussed the matter with Rich
Schneider (T. 408) and "tried to find out just exactly what had
happened on graveyard shift when they fixed it the night before"
(T. 391). Schneider told him that foreman Lee Brown had removed
it and that Brown and Dochtor had "checked it out." Bray then
requested Schafer to run the GÄ3 since "there wasn't any real
hazard if he was blading and doing his job", and asked him if "he
didn't think he could run it for one more shift and then by the
next day GÄ4 would have been ready." Schafer refused to operate
it. (T. 391, 409). If the GÄ4 had not come out of the repair shop
at that point, it was management's "intention" to "continue to
use" the GÄ3 (T. 527Ä528).
During the lunch break, and before Bray asked Schafer to run
the GÄ3 for one more shift, Bray and Schneider tested the GÄ3's
brakes while running the GÄ3 in 4th gear and found that there was
Page 13
~1577
a 2 or 3 second hesitation before the brakes grabbed (T. 392)
with the GÄ3 traveling 10 to 20 feet before coming to a stop (T.
393Ä395, 412). Mr. Bray could render no opinion how far the GÄ3
would have traveled after application of the brakes had there
been no "hesitation" problem (T. 395). Again, there is no
evidence in the record that Schafer was told at any time, that
the GÄ3 was considered safe to operate in certain specified
areas.
The conversation with Schafer after the lunch break, at
approximately 9:30 p.m. (T. 78, 83), was initiated when Mr. Bray
came up to Schafer and told him that "Schneider and I looked at
that blade and we decided the brakes aren't that bad and so
you'll have to run it" (T. 78, 83, 181Ä183). Schafer asked Bray
if anyone from the safety committee had looked at the GÄ3, Bray
said "no, Rich and I looked at it." Schafer said they needed
someone from the safety committee to look at it and that this had
been standard procedure in the past (T. 79, 80). Bray told
Schafer that he didn't "need any member of the safety committee,
that if a foreman tells you that its safe to operate, you have to
operate it" (T. 83). Schafer was familiar with the union contract
(Ex. 19) as he had been a member of the safety committee for 2Ä3
years and had been chairman of the safety committee for
approximately one year. Schafer's understanding of the contract
safety procedure was as follows:
"The procedure was that if the safety committee
decided--according to the contract, if the safety
committee decided it was okay, you should run it; if
you didn't, then you still have the option of calling
in MSHA to check it out. If at that point MSHA decided
it was safe to run anyway, then you were subject to
reprimand. If they decided it was unsafe, then they
would have to repair it." (T. 80).
No member of the safety committee was advised or given an
explanation by management why the first tag was removed (T.
79Ä82, 84, 409).
At the beginning of Lee Brown's shift on November 14th (at
approximately midnight), Schafer conversed with Brown about the
GÄ3. This occurred after Schafer's shift on November 13 and after
Schafer had put the second tag on the GÄ3. Brown advised Schafer
that Miles Dochtor had checked the brakes (after the first tag)
and that Miles had said the GÄ3 was safe to operate. Brown had
not called a member of the safety committee to check the GÄ3 at
this point (T. 347).
When he arrived for work on the midnight to 8 a.m. shift
(the shift following Schafer's) on November 14, 1984, Lee Brown
noticed the GÄ3 was in the shop again with a tag on it and he and
Mark Winn, a pit foreman, both test drove the GÄ3 (T. 343). Both
drove the GÄ3 on the haul road but again on flat level surfaces.
Neither were safety committee members. There again was "a slight
Page 14
~1578
pause" of "two or three seconds" after the brakes were applied
before they stopped the GÄ3, allowing the GÄ3 to travel more than
10 feet (T. 343Ä345). The pause or delay in the brakes grabbing
was not a "common" symptom of brake wear (T. 363).
On November 14, after these tests by Brown and Winn, the
brakes on the GÄ3 were repaired (T. 348) by replacing all the
seals and discs thereon (T. 362). After such repair, the old
brakes are thrown away (T. 364). In the case of the GÄ3 some of
the brake pads which were removed were seen to have completely
worn away (Tr. 365). Mine superintendent Suess was told that the
brakes "were worn but they weren't totally out" (T. 531).
Schafer's understanding of the safety procedure was based on
Article III, Section (i) of the union contract (Ex. 19) which is
entitled "Preservation of Individual Safety Rights" (T. 81). It
provides:
"(1) No employee will be required to work under
conditions he has reasonable grounds to believe to be
abnormally and immediately dangerous to himself beyond
the normal hazards inherent in the operation which
could reasonably be expected to cause death or serious
physical harm before such condition or practice can be
abated. When an employee in good faith believes that he
is being required to work under such conditions, he
shall notify his supervisor of such belief. Unless
there is a dispute between the employee and management
as to the existence of such condition, steps shall be
taken immediately to correct or prevent exposure to
such condition utilizing all necessary employees,
including the involved employee.
(2) If the existence of such condition is disputed, the
employee shall have the right to be relieved from duty
on the assignment in dispute. Management shall assign
such employee to other available work not involved in
the dispute and the employee shall accept such
assignment at the higher of the rate of the job from
which he is relieved and the rate of the job to which
he is assigned. The assignment of such alternative work
shall not be used to discriminate against the employee
who expresses such belief. If the existence of such
condition is disputed, at least one member of the Mine
Health and Safety Committee shall review such condition
with mine management within four (4) hours to determine
whether it exists.
(3) If the dispute involves an issue concerning
compliance with federal or state mine safety laws or
mandatory health or safety regulations, the appropriate
inspection agencies shall be called in immediately and
the dispute shall be settled on the basis of the
inspectors' findings, with both parties reserving all
rights of statutory appeal. Should
Page 15
~1579
the federal or state inspectors find that the condition
complained of requires correction before the employee may
return to his job, BCS shall take the corrective action
indicated immediately. Upon correction, the complaining
employee shall return to his job. If the federal or state
inspectors do not find a condition requiring correction,
the complaining employee shall return to his job immediately.
(4) For disputes not otherwise settled, a written
grievance may be filed, and the dispute shall be
referred immediately to arbitration. Should it be
determined by an arbitrator that an abnormally unsafe
or abnormally unhealthy condition within the meaning of
this section existed, the employee shall be paid for
all earnings he lost, if any, as a result of his
removing himself from his job. In those instances where
it has been determined by an arbitrator that an
employee did not act in good faith in exercising his
rights under the provisions of this Agreement, he shall
be subject to appropriate disciplinary action, subject,
however, to his right to file and process a grievance.
(5) None of the provisions of this section relating to
compensation for employees shall apply where BCS
withholds or removes an employee or employees from all
or any area of a mine, or where a federal or state
inspector orders withdrawal or withholds an employee or
employees from all or any area of a mine. However, this
section is not intended to waive or impair any right to
compensation to which such employees may be entitled
under federal or state law, or other provisions of this
Agreement.
(6) The provisions of this section shall in no way
diminish the duties or powers of the Mine Health and
Safety Committee." (Emphasis supplied)
After Schafer finished his lunch on November 13, Bray
assigned Schafer to operate a scraper (T. 183) and Schafer did so
through the end of the shift. At the end of the shift, another
foreman, Mark Wynn, advised Schafer that it was Lee Brown, repair
shop foreman (T. 84, 305) for the shift following Schafer's, who
had removed the first tag. Schafer then spoke to Lee Brown and
asked him what he was doing taking the tag off. Brown told him
that he and Miles Dochtor had checked out the GÄ3 and decided it
was good enough to run. Brown indicated that the brakes could not
be fixed by "adjusting" them and that the brakes had to be taken
apart and new discs put in, and that they needed the GÄ3 until
the other blade was repaired. Schafer had not seen it occur
before that a foreman simply removed a tag and he had not
previously seen Respondent's tag-out procedure (Ex. 4) (T. 87,
88, 93, 150, 156) nor had another miner, Edwin Whetham (T. 214).
The only procedure Schafer was aware of was Article III, Section
(i) of the union contract (T. 95).
Page 16
~1580
The hazards which were posed by operating the GÄ3 with defective
brakes in the area where Schafer was working on November 12 and
November 13 were persuasively described by the Secretary's
witness, Edwin Whetham, a dozer operator who was employed at the
mine during the pertinent period and who actually observed (T.
199) the defective condition of the GÄ3's brakes:
"Q. What would you believe could happen if he wasn't
able to stop, what kind of things?
A. Well I think he could have gotten run into with a
scraper or if he would have tried to dodge off, he
could have went over the edge of the embankment, and if
he had tried, rather than stop and back up, tried to
pull off the side, he could have went over the edge and
down the incline or into a mudhole or whatever.
Q. And what kind of injury could result in going over
the incline or--
A. Well he could have got rolled over and he could have
got injured pretty good in a roll over sliding down the
incline. That's pretty dangerous I would say.
Q. Is it possible he could have been killed?
A. Oh, yeah, it's possible, yeah." (T. 201)
This description of the potential dangers posed by Schafer's
continued use of the GÄ3 with its defective brakes are generally
supported in the record and consistent with the conditions and
terrain in the area where Schafer was assigned to work during the
period in question.
On November 14, when Schafer arrived for work, the GÄ3 was
being torn apart for repairs and he operated the GÄ4 blade on
that date (T. 97, 184, 437Ä439). At the beginning of this shift
Rich Schneider and Dean Bray told Schafer that they felt he had
not followed procedure shutting the blade down and tagging it out
and that he would probably be reprimanded (T. 98, 415). Schafer
became aware at this time that on the preceding shift (day shift)
on November 14, members of the safety committee had checked out
the GÄ3 (T. 98, 434). This, of course, was after his second
tag-out (T. 526).
On the evening of November 14, Schafer asked Foremen Bray
and Schneider, after they had advised him he was to receive a
reprimand, to drive him to the shop so that he could call MSHA.
After first refusing, Bray and Schneider relented and drove him
to the repair shop, telling him he would have to do it on his own
time. Schafer made several calls, and while he was doing so, Mr.
Suess arrived and told him it would be on his own time and that
he would have to pay for every phone call. When Schafer was
unable to reach the MSHA inspector at his home (T. 178) Suess
told him he would have to go home to make further phone calls,
and to either go back to work or go home. Schafer returned to
Page 17
work. Subsequently, an hour's time was deducted from his
Page 18
~1581
paycheck for this period, amounting to $16.61 (T. 287), which is
the only pay Schafer lost from the entire episode (T. 100Ä103,
177).
On November 15, 1984, Mike Quinn, Respondent's safety
director, told Schafer he was to get a letter of reprimand, and
shortly thereafter Quinn came back with Marvin Suess and Suess
handed Schafer the reprimand (Ex. 11; T. 99Ä100). Although the
parties stipulated (T. 287) that the undated reprimand was issued
on November 16, the evidence shows it was delivered to him on
November 15.
On the morning of November 15, 1984, Schafer posted a copy
of Article III(i) of the union Contract on the union bulletin
board (T. 479Ä481, 534, 537) (one of three) near the bath house
(T. 422) with the following notation which he had written at the
bottom thereof (Ex. 12; T. 540):
"This shows Marv's policy on taking equipment out of
service contradicts this section of the contract. His
policy is a joke and a scare tactic for those gullible
enough to be taken in by it.
Signed: a miner concerned for safety"
Schafer prepared and posted this document (T. 432Ä433; Ex.
12) after he learned he was to be reprimanded (T. 530, 540),
after Mr. Suess had commenced the process of reprimanding him (T.
422, 443, 488, 494, 530, 540), and for the following reason:
"I wanted to make everybody aware that it's not the way
it had been done and it was in violation of past
practice and custom and according to the contract; and
not to be intimidated by it, because that's all I felt
it was, was a way of intimidating everybody and taking
away their right to remove themselves from a dangerous
situation or shut anything down." (T. 537).
On November 15, 1984, Schafer received the following letter
of reprimand (Ex. 11) from Marvin R. Suess, Glenharold Mine
Superintendent:
Mr. DuWayne Schafer
Box 1253
Wilton, ND 58579
RE: Tag-out Procedures
DuWayne:
Safety rights of employees and the right to safe
working conditions are the highest priority items at
Glenharold
Page 19
~1582
Mine, but they must not be abused by either the employees or the
employer. Consol and BCS have great respect for tag-out
procedures and have always wanted all equipment to be operable
and safe, but there comes a time when the operation of equipment
could be better, yet not unsafe to operate. If there exists an
unsafe condition it should be tagged-out following the company
procedures. At that point the employee is saying that the
equipment is abnormally hazardous and could cause immediate
danger to the operator. No employee shall be discriminated
against for utilizing this procedure.
A memo posted on the bulletin board indicated "Marv's
policy is a joke"; I'm not real sure what you were
referring to since an unsafe piece of equipment has
always gotten repaired when it was unsafe to operate or
where it was apparent it was dangerous to operate. We
have had several cases where an employee tagged-out
equipment that was not unsafe to operate and this must
stop. Should this continue then all respect for tagged
equipment will be lost.
After a complete investigation of GÄ3 Motor Grader,
which you tagged-out twice on November 12th and 13th,
your local union Safety Committee, Mike Quinn, several
additional mechanics, several foremen, and I concluded
that GÄ3 was not unsafe to operate. It was explained to
you that GÄ3, our spare motor grader, was to be used
until GÄ4 was repaired at which time the reclamation
blade operators would again operate GÄ4 full-time. The
areas in which GÄ3 were to be used were safe areas to
operate such a blade.
From our investigation, we have concluded that you have
abused our procedure of tagging equipment, and you have
failed to follow the guidelines of the BCSÄUMWA
Agreement of 1984. You did not act in good faith in
exercising your rights and are therefore issued this
written reprimand for the aforementioned items.
In order to provide a safe work place I ask that you
refrain from misuse of company tag-out procedures,
refrain from
Page 20
~1583
posting memos that are false, and abide by the rights provided in
the Surface Coal Wage Agreement of 1984 to resolve any problems
you may believe exist.
Regretfully submitted,
s/ Marvin R. Suess,
Glenharold Mine Superintendent" (FOOTNOTE 7)
Marvin Suess, in his position as mine superintendent,
initiated, drafted, signed and issued the reprimand to Schafer,
and was the official in Respondent's management hierarchy
primarily and effectively responsible for determining that
Schafer should be reprimanded (T. 418, 441Ä446, 499, 508Ä511).
The decision to reprimand Schafer was made on November 14, 1984,
in the late afternoon (T. 442, 443, 530). Mr. Suess could not say
whether it was on November 14 or November 15 that he became
Page 21
~1584
aware of Schafer's "Marv's policy" is a "a joke" notation at the
bottom of the copy of ART III of the Union Contract posted on the
bulletin board (T. 445; Ex. 12).
Mr. Suess at first conceded that Schafer's first tag-out was
proper (T. 425), but only because the steering mechanism was
defective (T. 425). Mr. Suess took the position, however, that
with respect to the GÄ3's brakes, the first tag-out by Schafer
was not in "good faith" (T. 449Ä450). Yet, when the brakes were
ultimately removed for repairs Mr. Suess who was present in the
repair shop did not examine them closely and professed not to
have been curious about their condition (T. 490Ä491). I find this
consistent with the discriminatory frame of mind I attribute to
Respondent in this matter. The net effect of Respondent's various
failures to follow its past practices and tag-out policies in
this esposode was, along with its premature initiation of
disciplinary action, a provocation to Schafer and a
discouragement of his taking a required, protected safety
measure.
Mr. Suess took the further position that the second tag-out
was improper on the following basis stated at the hearing:
"Q. Okay. When Mr. Schafer came back on shift on the
evening of the 13th, following removal of the first
tag, he disputed removal of that tag with his foreman
and placed a second tag on it. Was that, in your
opinion, proper?
* * * * * * * *
A. I believe he should have then gone through his
grievance procedure since management had already made
the determination that it was safe to operate. I do not
deprive the man of removing himself from that piece of
equipment, but by tagging it out, it also did not allow
us to utilize anybody else on the piece of equipment"
(T. 425Ä426).
(emphasis supplied)
An important follow-up in Mr. Suess's position occurred
subsequently in his testimony:
Q. Okay. When do you think he was not--acting in bad
faith--what did he do that you think was in bad faith?
A. In the fact that he ran it from four o'clock until
the steering broke before the brakes became an issue.
Yet the brakes didn't change at all. And then tagging
it the second day, knowing what has been done--what had
been inspected. And then also riding that motor grade
in that
Page 22
~1585
fourth gear with the mold board up and the ripper up, to me if
the brakes were that bad, it should have never been rode, it
should have been towed to the shop. (T. 450).(FOOTNOTE 8)
ULTIMATE FINDINGS,
CONCLUSIONS AND DISCUSSION
In order to establish a prima facie case of discrimination
under section 105(c) of the Act, a complaining miner bears the
burden of production and proof to establish (1) that he engaged
in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797Ä2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.,
1981)); and Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817Ä18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities, and (2) it would have taken the adverse
action in any event for the unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936Ä38
(November 1982). The ultimate burden of persuasion does not shift
from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also
Boich v. FMSHRC, 719 F.2d 194, 195Ä96 (6th Cir.1983); and Donovan
v. Stafford Constr. Co., 732 F.2d 954, 958Ä59 (D.C.Cir.1984)
(specifically approving the Commission's PasulaÄRobinette test).
The Supreme Court has approved the National
Page 23
~1586
Labor Relations Board's virtually identical analysis for
discrimination cases arising under the National Labor Relations
Act.
The essence of Respondent's defense appears to be that
Schafer, on both tagouts, was not in good faith and was
unreasonable in his position that the GÄ3's brakes were unsafe,
and that the tagouts were thus not "protected activities."
Respondent's basis for asserting that Schafer was not in good
faith or reasonable relies heavily on the fact that its personnel
made checks of the GÄ3 and determined it to be safe for use under
restricted conditions and at certain locations. However, the
facts that these tests were made and the decisions made by
Respondent's management were either (1) not communicated to
Schafer or (2) were made after Schafer had attached the second
tag on the machine. It is clear also that the joint test that
management made with the safety committee was performed after the
second tagout (T. 514). Respondent failed to establish that
Schafer was told that management felt the GÄ3 was safe to use in
certain areas or that he should not use the GÄ3 in inclined
areas. Yet Mr. Suess also indicated that "99 times out of 100",
management concurred with a miner's assertion that equipment was
unsafe (T. 518). Thus, in this episode, Respondent broke a very
strong pattern and did not communicate its position or findings
to Schafer before his second tagout.
Tagging out equipment believed to be unsafe is a safety
activity protected by the Act and required (T. 519). Schafer's
belief that the brakes on the GÄ3 were defective and rendered
operation of the GÄ3 unsafe on both November 12 and November 13,
1985, was reasonable (T. 503Ä504) in good faith,(FOOTNOTE 9) and
calculated to protect himself and other operators using the GÄ3
from safety hazards. This was borne out by various of his actions
at the time including demonstrating the defective brakes to a
fellow employee and listing such on both tags. That the brakes
were actually unsafe is shown by the condition they were found in
after their removal, the considerable "pause" in their operation,
and the distances the GÄ3 traveled after the brakes were applied.
There is no prohibition, express or implied, in Respondent's
tag-out procedure, against tagging out equipment believed to be
defective more than once. The essence of a proper tag-out is a
miner's reasonableness and good faith in believing equipment is
unsafe. Indeed, Schafer was obliged to tag-out the GÄ3 since a
miner's failure to tag out unsafe equipment subjects his employer
to sanctions under the Act for violations of the safety standards
(T. 458). Respondent's contentions that Schafer "abused" the
Page 24
~1587
tag-out procedure and thus was not engaged in a protected
activity is not established in the record.(FOOTNOTE 10) What is
clear, as previously noted, is that Respondent being fully aware of
Schafer's safety concerns did not follow its own tagout
procedures.
Respondent, admittedly desirous of keeping the GÄ3 in
operation for productivity reasons, took disciplinary (adverse)
action against Schafer for his engagement in the protected
activity described above. Its belated contention that Schafer
should have removed the tag himself after he was advised that
management considered the brakes safe (T. 477Ä478) is pretextual.
Management personnel removed the tag the night before and no
reason having any merit was submitted why it could not have
removed the second tag had it chosen to do so.(FOOTNOTE 11) The mine
superintendent, who investigated the matter before reprimanding
Schafer, did not bother to ascertain Schafer's position (T.
497Ä498), the basis for his belief that the brakes were unsafe,
or his state of knowledge, before reprimanding him. The mine
superintendent, Mr. Suess, did concede that Schafer "probably"
would not have been reprimanded for the allegedly improper
unprotected activity of putting the "Marvin's policy is a joke"
note on the bulletin board (T. 509Ä510). The record shows, and I
have found, that the reprimand process was initiated before
Schafer posted the note. Respondent clearly failed to establish
that it would have taken the adverse action in any event for
Schafer's alleged unprotected activities alone. Rather, in
reprimanding Schafer, Respondent appears to have been motivated
by Schafer's protected activity in tagging out the GÄ3 and its
Page 25
~1588
patent displeasure in his taking the GÄ3 out of operation before
the GÄ4 was out of the repair shop. Accordingly, it is concluded
that Respondent failed to establish any rebuttal or affirmative
defense afforded under the Act or by precedent. Specifically, it
failed to establish by reliable, probative, or convincing
evidence that Schafer's tag-out actions were not protected, that
the reprimand was in no part motivated by Schafer's two tag-outs,
or that it would have reprimanded Schafer for unprotected
activities alone. A violation of Section 105(c) of the Act is
found to have occurred.
LOSS OF PAY
The Secretary claims that Schafer is entitled to
reimbursement of $16.61, representing one hours pay. Schafer was
docked for this time-which apparently was used to call fellow
employees to get the phone number of an MSHA Inspector on the
evening of November 14, 1984--after he was advised he was to
receive a reprimand.
The Secretary failed to establish Schafer's entitlement to
reimbursement. Very little evidence was adduced on this question.
No urgency or necessity for his attempting to call the inspector
at this time was shown, nor was it shown why Schafer could not
have made the calls on his own time at the conclusion of the
shift on the following day. Schafer was advised in advance that
he would be charged for the time he was utilizing, but was
allowed by his management to take the time to do so.
It is concluded from the thin record on this point, that
Schafer's loss of this pay was not an expected or normal result
from the discriminatory action of Respondent and an award
therefor is denied.
PENALTY ASSESSMENT
As noted above, the violation of section 105(c) of the Act
occurred when Respondent Consolidation was the operator of the
Glenharold mine. The parties stipulated that there were no
previous violations of Section 105(c) during the pertinent 2Äyear
period preceding the subject violation (T. 291). I have
previously determined that Consolidation is a large mine operator
and the parties further stipulated that assessment of a penalty
would not adversely affect its ability to continue in business
(T. 287). In this matter the concept of prompt abatement of the
violation has no specific relevance in view of the Respondent's
good faith assertion of the legality of its position, and the
complexity of the legal issues involved. Prompt abatement here
would amount to the surrender of its right to assert its own
position and to a hearing on the merits.
The remaining statutory assessment factors, negligence and
gravity, also require some conceptual transposition from the
ordinary meanings thereof in matters involving violations of
discrete safety and health standards to a discrimination
Page 26
~1589
violation. With respect to the seriousness of the violation, the
adverse action taken here against the complaining miner, as in
many discrimination cases, could have the effect of discouraging
the taking of protected safety activity by other miners in the
future. While there is no basis to question the sincerity of
Respondent's concern for the viability of its tag-out procedures
generally, with respect to the two tag-outs by Schafer here I
have concluded that Respondent's response to such was
discriminatory. I find no credible basis in the record to
conclude that Schafer or other miners were in the past the
subject of oppressive measures to discourage safety activities.
As evidenced by Schafer's actions themselves, and by the absence
of other probative evidence, the instant adverse action was not
taken in such a background of intimidation as to dishearten
justified, reasonable, and required safety activity of miners in
the future. Accordingly only a moderate degree of gravity is
attributed to this violation.
The concept of negligence has no direct applicability to
this particular matter. The adverse action was taken wilfully and
thus the broader idea of the culpability of Respondent's
managment in reprimanding Schafer is to be considered. In this
connection it is first noted that because there was no showing
that an "explanation" was ever given to either Schafer or a
safety committeeman concerning the removal of the first tag, and
it does not otherwise appear that such was the case, Respondent
did not establish that it was in compliance with its own tag-out
procedures. While charging Schafer with "abuse" of the tag-out
procedure in various respects it appears that if there was any
deviation therefrom, it was on the part of Respondent's
management. Schafer, who took safety--calculated action in putting
the second tag on the GÄ3, had done so without it having been
explained to him what had taken place by the repair shop with
respect to the first tag the night before. Nevertheless, the mine
superintendent, with apparent knowledge of this (T. 463Ä464),
proceeded to reprimand him.
Since a member of management, in this case Brown, the repair
shop foreman, had taken off the first tag, either he or any other
foreman could have taken off the second tag had it wished to do
so on the second night, before or after informing Schafer of
their testing and determination that the brakes were safe. It was
Respondent's management, by not following its own procedures (T.
463Ä464), who thwarted the dispute from going to resolution
through the grievance procedure by (1) taking the position that
Schafer, not it, should have removed the second tag (T. 477 after
being notified of management's determination, and (2) letting it
be known to Schafer in advance and nearly immediately that he was
to be disciplined. During Schafer's shift on November 13 and
after the second tag was placed on the GÄ3, nothing prevented
Respondent from following its own procedures by:
Page 27
~1590
(1) removing the second tag as it had done the night
before,
(2) advising Schafer that it had checked the brakes and
considered them safe, and,
(3) if Schafer persisted in his position that the
brakes were unsafe,
(i) advising him that there was a safety dispute,
which under both the union contract and the Tagout
Procedure, must be resolved through the Contract
Grievance Procedure (ART. III(i), and (ii)
assigning him to other work.
In reviewing the foregoing and the entire record it is found
that Respondent's motivation in the discipline of Schafer was
willful and retaliatory. Respondent gave him no audience before
taking the action. It allowed no disagreement whatsoever with its
determination that the brakes were safe, even though any such
determination or belief was never communicated to Schafer as to
the first tag-out and--as to the second tag-out--was firmed up by
further testing after the second tag was placed on the GÄ3.
After weighing the above assessment considerations, it is
concluded that a penalty of $1,000.00 is appropriate.
ORDER
1. The written reprimand of Complainant DeWayne Schafer
dated November 16, 1984, shall be removed by both Respondents
from his employment records and all references thereto in other
of Respondents' records shall be expunged.
2. Respondent Consolidation shall pay the costs and expenses
reasonably incurred by Complainant in connection with the
institution and prosecution of this proceeding.
3. Counsel are directed to immediately confer and attempt to
agree on the amount due under paragraph 2 and, if they can agree,
to submit a statement thereof to me within 20 days of the date of
this decision. If they cannot agree, Complainant shall, within 30
days of the date of this decision, file a detailed statement of
the amount claimed, and Respondent shall submit a reply thereto
within 20 days thereafter. This decision shall not be final until
I have issued a supplemental decision on the amount due under
paragraph 2.
4. Respondent Basic, the current owner and operator of the
Glenharold Mine, shall post a copy of this decision on the
appropriate bulletin board at the subject mine which is available
to all employees for a period of 60 days.
5. Respondent Consolidation shall pay the Secretary a
penalty of $1,000.00 within 30 days of the date of this decision.
Michael A. Lasher, Jr.
Administrative Law Judge
Page 28
1 30 U.S.C. 802(d); Consolidation Coal Company v.
Secretary (4th Cir., unreported decision; March 13, 1986).
2 The hand written initials of Lee Brown, the repair shop
foreman on the next shift, i.e. midnight to 8 a.m. on November
13, 1984 (T. 67, 306). Miles Dochtor was a repair shop mechanic
(T. 86, 334). Neither Lee Brown or Dochtor were members of the
Safety Committee (T. 85, 86).
3 Employees were required to check their equipment before
operating it (T. 418Ä419).
4 The wording of the handwritten part of this tag filled in
by Schafer does not reflect that he was aware that the first tag
had been removed by management or that management had checked the
brakes and found them satisfactory; nor does its tenor show
rancor or reflect any knowledge of any events concerning the GÄ3
after he left it at the repair shop the previous evening.
5 This is Schafer's account. According to Dean Bray, the
only party to the conversation who testified besides Schafer,
Schafer said that if any of the foreman present had removed the
tag it "would be" their "ass" (T. 396). On this limited issue I
credit Bray's account as being the more likely in view of the
overall circumstances and Schafer's emotional state at the time.
6 At this point, according to Mr. Bray, he "had no reason"
to believe the condition of the GÄ3's brakes "were any other"
than what Schafer told him they were (T. 407Ä408), that is, that
the brakes were not safe to operate (T. 408).
7 (a) It should be noted that the phrases "abnormally
hazardous" and immediate danger" used by Mr. Suess in the first
paragraph of this undated reprimand letter (T. 521Ä523), while
possibly recognizable as established mine safety concepts and
jargon, appear to invoke the language of Article III, Section
(i)(1) of the contract Grievance Procedure (Ex. 19) set forth
above. In its landmark Pasula case, infra, the Federal Mine
Safety and Health Review Commission noted with respect to what I
believe and conclude are analogous and applicable "refusal to
work" principles that such contractual language permits refusals
to work in only what might be called an "abnormal imminent
danger" and declined to construe that Act to limit a miner's
refusal to work to only such conditions.
(b) Close analysis of the reprimand letter reveals (a)
that its primary thrust is Schafer's alleged "abuse" of the
tag-out procedure, and (b) that it fails to precisely describe
how Schafer did so (T. 103). Nor does it explain to Schafer how
he "failed to follow" the 1984 contract. It can be inferred that
the "abuse" Mr. Suess had in mind was generally that Schafer
tagged out a piece of equipment that was not unsafe.
Significantly, the timing of events, Schafer's knowledge of them,
and their interplay with the specific rights of miners under the
tag-out procedure and grievance procedure and the requirements
thereof applicable to both miners and management was not
Page 29
delineated. Also, Mr. Suess did not discuss the matter with
Schafer before issuing this reprimand (T. 497). There is no
evidence that Schafer was ever told why Respondent concluded the
GÄ3 was safe to operate, or which "areas" Respondent thought it
was safe to operate in. Schafer was told, though, that management
wanted to operate the GÄ3 until the GÄ4 was out of the repair
shop.
(c) At the hearing, Mr. Suess could not say, assuming
arguendo that the only thing Schafer did wrong was abusing the
tag-out procedure, whether or not Schafer would have been
reprimanded (T. 508Ä510, 478).
8 Mr. Suess's misunderstanding and rationalizing of the
sequence in which certain crucial events occurred must be
underscored at this juncture: the record is overwhelming that
when Schafer put on the second tag he had not been advised that
management (Mr. Brown) had determined that the brakes were safe
or otherwise informed of management's position. Mr. Suess
subsequently conceded that Schafer did not know that management
had evaluated the equipment before he put on the second tag (T.
463Ä464, 476Ä477, 507). Further, Mr. Suess was not sure, even at
the time of the hearing, whether any Safety Committeeman had been
advised of management's determination (T. 464, 477, 507). These
facts, among other things, place Respondent in contravention of
Section 3(b)(4)(a) of its own TagÄOut Procedure. Even so, Mr.
Suess reprimanded Schafer and steadfastly held to the position
that Schafer had abused the tag-out procedure, even on the first
tag-out with respect to the brakes (T. 449Ä450). While assuming
this posture it is significant that Mr. Suess did not undertake
to ascertain the brakes' condition after they were removed in the
repair shop (T. 491).
9 See Secretary ex rel. Pratt v. River Hurricane Coal
Company, Inc., 5 FMSHRC 1524 (1983).
10 Mr. Suess's ipse dixit that Schafer "abused" the tag-out
procedure aside, Respondent failed to persuasively show Schafer
was proceeding in bad faith in the tag-outs. I infer from the
fact that Respondent did limit the GÄ3's use to certain areas
that it considered the GÄ3's brakes unsafe for use in other
areas. Compounding the essential unreasonableness of its
position, there is no evidence that Respondent ever told Schafer
he was not to use the GÄ3 in certain areas before the second
tag-out.
11 By taking this position, and by failing to recognize that
a "dispute" as to safety of the GÄ3 existed, it was Respondent's
management which blocked the operation of Art. III, Section (i)
of the Union Contract. Thus, the matter was not "reviewed" by
management and "at least one member" of the Safety Committee
within 4Ähours, as required by the contract. Respondent, instead,
let Schafer know with considerable alacrity that he was to be
disciplined. From this, its strong desire to keep the GÄ3 in
production, its failure to follow its own procedures, the
fundamental unfairness in its position vis a vis Schafer, and the
transparency of some of its arguments as previously noted, I
infer that its motivation was discriminatory. Houser v.
Page 30
Northwestern Resources, 8 FMSHRC 883 at 886.
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