Alamo Cement Company

Plain-English summary

Yale E. Hennessee alleged that Alamo Cement discharged him after he refused to remove a burned-out motor from a clinker dome because the access ramp was covered with clinker and unsafe to traverse. Judge George A. Koutras found that the evidence raised a viable question about whether Hennessee's safety concerns motivated his refusal and termination. He ruled that the complaint was not frivolous and ordered Alamo Cement to immediately reinstate Hennessee to his electrician position while the discrimination case proceeded.

Decision snapshot

• Cited standards: No mine-safety standard was adjudicated in this temporary-reinstatement proceeding.
• Outcome: Alamo Cement was ordered to temporarily reinstate Hennessee pending a final determination on his discrimination complaint.
• Key point: A nonfrivolous discrimination complaint may support temporary reinstatement before the merits hearing is completed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ALAMO CEMENT
DDATE:
19861106
TTEXT:

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           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 86-151-DM
ON BEHALF OF MSHA Case No. MD 86-35
YALE E. HENNESSEE,
COMPLAINANT 1604 Quarry and Plant

      v.

ALAMO CEMENT COMPANY,
RESPONDENT

                   ORDER OF TEMPORARY REINSTATEMENT

Appearances: Frederick W. Moncrief, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
David M. Thomas and Robert S. Bambace, Esqs., Fulbright
& Jaworski, Houston, Texas, for Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns an Application for Temporary

Reinstatement filed by MSHA on September 10, 1986, pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, and Commission Rule 29 C.F.R. 2700.44(a), seeking the
temporary reinstatement of the complainant Yale E. Hennessee to
his position as an electrician at the respondent's 1604 Quarry
and Plant. MSHA has concluded that the complaint of
discrimination filed by Mr. Hennessee is not frivolous. In
support of this conclusion, MSHA has filed an affidavit executed
by Wilbert B. Forbes, Chief of Special Investigations, Metal and
NonÄMetal Division, MSHA, Arlington, Virginia, a summary of the
alleged discriminatory action, and a hand-written statement by
Mr. Hennessee in support of his complaint.

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The respondent filed a request for a hearing pursuant to 29
C.F.R. 2700.44(b). By agreement of the parties, a hearing was
scheduled for October 15, 1986, but it was cancelled because of
certain budgetary constraints. It was subsequently rescheduled
and held in San Antonio, Texas, on October 23, 1986, and the
parties appeared and participated fully therein.

                             Issue

 The issue presented in this proceeding is whether or not

MSHA's complaint on behalf of Mr. Hennessee is frivolous.

MSHA's Testimony and Evidence

 Yale E. Hennessee, confirmed that until his discharge on

April 17, 1986, he was employed by the respondent as a
instrumentation technician or electrician. In his opinion, he was
discharged because "I refused to be bullied" into doing something
which he believed was unsafe, namely, the removal of a motor from
the bottom of clinker dome 2 which was littered with clinker and
which presented a slip and fall hazard.

 Mr. Hennessee stated that on the afternoon of April 17,

1986, production foreman Frank Garcia requested Damon Smith to
repair a burned out motor on a feeder located at the No. 2
clinker dome. Mr. Smith asked him to assist in the repairs, and
they took a replacement motor to the area with a hand truck. The
motor was taken down a sloping concrete walkway or ramp tunnel
which was sloped at approximately 30 degrees. The ramp had
handrails on both sides, and Mr. Smith had one hand on the rail
and one hand on the truck, as did Mr. Hennessee. The motor
weighed approximately 100 to 110 pounds, and the ramp was
littered with 8 to 10 inches of clinker ranging from "small
marble" size to "golf ball" size.

 Mr. Hennessee stated that while taking the motor down the

ramp, he and Mr. Smith lost their balance several times because
of the clinker, and had some difficulty in transporting the motor
down the ramp because of the slippery footing. He stated that the
belt had been buried the evening before with spillage, and that
the normal practice is to clean up and remove the clinker from
the belt.

 Mr. Hennessee stated that after the burned out motor was

changed out, he and Mr. Smith decided to leave the old motor in
the dome and they placed it out of the way. They decided not to
take it out because of the trouble they had in bringing it in,
and they did not believe that they could have removed it safely.
They also considered the fact that there were two other motors in
the warehouse, and they did not

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believe it was necessary to immediately remove the burned out
motor from the area. Mr. Hennessee stated that had the old motor
been needed, he would have removed it.

 Mr. Hennessee stated that after replacing the burned out

motor, he left the dome area to remove his lock-out device from
the motor breaker and that the slippery footing condition of the
ramp still existed as he exited the area. Mr. Smith remained
behind to replace the motor guard and to check out the motor
rotation. Mr. Hennessee then called the control room and informed
Foreman Homer Zapata that the motor had been repaired and that he
should check the feeder belt flow. He did not inform Mr. Zapata
that the burned out motor had not been removed.

 Mr. Hennessee stated that at approximately 3:45 p.m., he and

Mr. Smith were in the shop cleaning up. Their work shift ended at
4:30 p.m. Mr. Garcia came to the shop and informed them that the
motor which they had installed was not operating properly, and
that they had not replaced the guard or removed the old motor.
Mr. Hennessee stated that Mr. Garcia was belligerent and accused
them of not doing the job right. He also indicated that Mr.
Garcia told them if they could not do the job right he no longer
needed them and that they could "punch out." Mr. Hennessee stated
that he attempted to explain the situation to Mr. Garcia but that
he would not listen.

 Mr. Hennessee stated that after the confrontation with Mr.

Garcia, he and Mr. Smith went to see their supervisor Bob Pratt.
Mr. Garcia and plant manager Ed Pierce were there, and Mr.
Hennessee informed Mr. Pierce that he did not have to put up with
Mr. Garcia's abuse and harrassment. He also informed Mr. Pierce
that unless the dome walkway ramp was cleaned up, he would not
remove the old motor. He also informed Mr. Pierce that the
walkway ramp was unsafe. Mr. Pierce asked him to "cool off" and
advised him that he would go to the dome ramp area to check it
out.

 Mr. Hennessee stated that Mr. Pierce and Mr. Garcia then

left to check out the ramp. Upon their return, Mr. Pierce advised
him that he and another employee had removed the burned out motor
by carrying it out of the dome by means of a rag placed through
the motor eyelet. Mr. Pierce also informed him that the ramp
walkway was "totally cleaned" and safe.

 Mr. Hennessee stated that Mr. Pratt then told him to go home

and "cool off." Mr. Hennessee left the mine and took his tools
with him. He did so because he believed his dismissal was
"imminent." Mr. Hennessee stated that he advised

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Mr. Pratt that he did not remove the old motor because he
believed it could not be removed safely.

 Mr. Hennessee stated that he later spoke with Mr. Pratt, and

he was asked to write a letter stating his position and to meet
with Mr. Pratt on April 18, 1986, to discuss the matter further.
Mr. Hennessee was then summoned to a meeting on April 22, 1986,
and present were Mr. Pratt, Mr. Pierce, and personnel manager
Galindo.

 Mr. Hennessee stated that when he went to the April 22,

meeting he assumed he would be reprimanded. In fact, he was
terminated for insubordination because of his refusal to remove
the burned out motor.

 Mr. Hennessee confirmed that since his termination he has

not had regular employment, but has done contract labor and
sub-contracting work. He also confirmed that he felt some loyalty
to the respondent because they took care of him when he was
previously injured on the job. He also indicated that the
respondent sent him for training at a G.E. school in Virginia, in
January, 1986, and that he was always available and willing to
work overtime, and responded to requests to work evenings to
solve problems as required by the respondent.

 On cross-examination, Mr. Hennessee conceded that in his

April 20, 1986, statement to the respondent he did not mention
his prior injury or that this was a consideration in his refusal
to remove the motor from the dome area. He confirmed that he
filed his discrimination complaint with MSHA on April 23, the day
following his termination. He confirmed that he was angry on
April 17, and that he was "carried away" and "let his mouth get
away from him" over the incident with Mr. Garcia. He also
confirmed that after his termination, he made up his mind to do
what he could to save his job.

  Mr. Hennessee reiterated that the dome walkway ramp area was

unsafe when he went down with Mr. Smith with the motor, and that
it was unsafe when he left the area after changing out the motor.
He stated that he did not clean up the ramp area before taking
the motor down because he had never been expected to do so in the
past.

 Mr. Hennessee confirmed that the plant is non-union, and

that the respondent has rules requiring persons who perform work
to clean up their work areas when the work is completed. He also
confirmed that he did not request anyone to clean up the ramp
area before he and Mr. Smith took in the replacement motor.

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Mr. Hennessee reiterated that Mr. Garcia was belligerent and
accused him of failing to repair the motor, failing to replace
the motor guard, and failing to remove the old motor. He
confirmed that he advised Mr. Pratt that he would not work if he
had to take abuse, and would instead quit. He confirmed that Mr.
Pierce heard his comments in this regard.

 Mr. Hennessee confirmed that he never returned to the ramp

area on April 17, after he was told to go home, and could not
have known that the area was unsafe. He also confirmed that his
prior statement made no reference to running the hand-truck with
the motor into the ramp wall, and that he had not notified anyone
that he had left the burned out motor in the dome.

 MSHA Inspector Paul Belanger confirmed that he conducted the

investigation of Mr. Hennessee's complaint. He confirmed that he
found no basis for concluding that Mr. Hennessee violated any
company rules, and no one related to him that there were other
times when equipment was left at work sites after the work was
completed.

 Mr. Belanger stated that when he inspected the walkway ramp

area in question it was in good condition and safe. He confirmed
that management personnel seemed to be aware of the fact that the
ramp area had spillage problems. He stated that when he walked
the ramp he made certain to hold onto the handrail. Although he
observed some clinkers on the ramp and lost his footing, the ramp
condition did not warrant the issuance of a citation.

 Mr. Belanger confirmed that no one from mine management

denied the existence of clinker spillage on the walkway ramp in
question, nor did they deny Mr. Hennessee's assertions that he
believed the condition of the ramp was unsafe. Mr. Belanger also
confirmed that his investigation revealed that Mr. Hennessee was
an exemplary employee and that he had never refused any work in
the past, and had no prior personnel actions taken against him.

 Mr. Belanger confirmed that the respondent was cooperative

during his investigation and provided access to its employees.

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Respondent's Testimony and Evidence

 Frank Garcia, production superintendent, confirmed that on

April 17, 1986, he assigned Damon Smith the task of changing out
a burned out motor on the feeder in the Number 2 clinker dome.
Mr. Smith said nothing to him about the condition of the ramp
walkway. After completion of the work, Homer Zapata advised him
that the walkway ramp had been swept and cleaned and that a
"path" had been cleared of clinkers. Mr. Zapata also informed him
that the motor guard had been left off, that the old motor had
not been removed from the area, and that the feeder motor was
still not working properly. Mr. Garcia then confronted Mr. Smith
and Mr. Hennessee and told them "if they couldn't do the job
right to punch out."

 Mr. Garcia stated that he believed that the walkway ramp was

safe on April 17, and that the old motor could be safely removed.
He confirmed that he did not participate in the decision to
terminate Mr. Hennessee from his employment with the respondent.

 On cross-examination, Mr. Garcia stated that when he

confronted Mr. Smith and Mr. Hennessee they said nothing to him
about any safety concerns. He reiterated that the ramp had been
cleaned and that there was a clear 3Äfoot wide "pathway"
extending the length of the 4Äfoot wide ramp.

 Mr. Garcia confirmed that when Mr. Pierce brought out the

motor, he had to hold onto the walkway railing, and that he did
so because he may have considered it unsafe. He expressed
agreement with Mr. Pierce's statement of April 17, 1986,
including the statement by Mr. Hennessee that he would still not
remove the motor the day after it was removed by Mr. Pierce. Mr.
Garcia stated that it was his opinion that the walkway ramp was
not unsafe on April 17, and that not no slip hazard existed.

 Ed Pierce, respondent's works manager, confirmed that he is

in charge of all plant production. He stated that Mr. Hennessee
was a good employee and that he spoke with him on April 17, at
approximately 3:30 p.m. He stated that he encountered Mr. Garcia,
Mr. Hennessee, and Mr. Smith at that time and that they were
talking at the same time with regard to the motor repairs in
question. Mr. Hennessee stated that "you can get someone to punch
in for me in the morning," and Mr. Pierce asked him to quiet
down. Mr. Garcia was complaining that Mr. Smith and Mr. Hennessee
had not done their job of changing out the motor, and Mr. Smith
insisted that they

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had. Mr. Hennessee stated that he and Mr. Smith did not remove
the old motor because they believed it would have been unsafe to
do so.

 Mr. Pierce stated that he and Mr. Garcia proceeded to the

ramp area, and Mr. Pierce observed that a "path" had been cleared
on the ramp walkway, and he believed that it was safe. He and
another employee brought out the old motor with no problems. Mr.
Pierce confirmed that clinker was present under the hand rail on
the left side of the ramp, and under the conveyor belt on the
right side of the ramp.

 Mr. Pierce stated that the motor guard was off, and that the

new motor appeared to have been installed properly but was
vibrating excessively. After removing the old motor from the
area, he returned to the second floor break room, and continued
his discussion with Mr. Hennessee. He informed Mr. Hennessee that
he considered the ramp to be safe, and Mr. Hennessee informed him
that even so, he would not go to the dome area the next day to
remove the motor.

 Mr. Pierce stated that the decision to terminate Mr.

Hennessee was a "group decision" reached on April 21, 1986, by
himself, Vice President Jim Gordon, President Hopper, and Mr.
Galindo. Mr. Hennessee was informed of the decision on April 22,
1986, when he was issued the "warning" and termination notice
(exhibit CÄ1). Mr. Pierce stated that Mr. Hennessee was
terminated for insubordination because of his statement that he
would not on the next day remove the motor from the clinker dome
area in question. Mr. Pierce confirmed that Mr. Smith was not
insubordinate, and no action was taken against him, and he is
still employed with the respondent.

 Gregory Fuentes, yard supervisor, stated that he was

responsible for plant housekeeping. He confirmed that he was
aware of the dispute of April 17, between Mr. Garcia, Mr.
Hennessee, and Mr. Smith with regard to the replacement of the
motor in the clinker dome. Mr. Fuentes stated that at 12 noon on
that day he assigned contract employees Davis and Hickey to clean
up and sweep the ramp walkway area in question. He stated that
they finished this work at 3:00 p.m., and that he went to the
area and confirmed that it had been cleaned up. Mr. Fuentes
estimated that it took 2 hours to clean up the area. He stated
that Mr. Davis and Mr. Hickey cleared a path down the ramp by
sweeping the clinker under the belt, and that when the belt was
rendered operational again the clinker would have been loaded on
the belt and taken out of the area.

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By agreement and stipulation, of the parties, respondent's
counsel proferred the testimony of electrical supervisor Robert
Pratt, Foreman Homer Zapata, and supervisor Rene Chevera.

 The parties stipulated that if called to testify, Mr. Pratt

would confirm his discussions with Mr. Hennessee concerning the
circumstances which prompted his encounter with Mr. Garcia, and
Mr. Hennessee's reluctance to remove the burned out motor in
question from the clinker dome, including Mr. Hennessee's
statement that he would not remove the motor the day following
the incident in question on April 17, 1986.

 The parties stipulated that if called to testify, Mr.

Chevera would confirm that he and Mr. Pierce removed the burned
out motor in question after Mr. Hennessee's refusal to do so, and
that the dome walkway ramp area was cleaned up and safe to
travel.

 The parties stipulated that if called to testify, Mr. Zapata

would confirm that after being informed by Mr. Hennessee that he
and Mr. Smith had completed the job of changing out the burned
out motor, Mr. Zapata found that the old motor had not been
removed from the work area, that the motor guard was not in
place, and that the replacement motor was not operating properly.

Documentary Evidence

 The following documents were tendered by the complainant,

and received in evidence in this proceeding:

 1. The Employee Warning Record and Termination Notice issued

to Mr. Hennessee by the respondent terminating his employment on
April 22, 1986, for "Insubordination." (Exhibit CÄ1).

    2. A copy of a work order dated April 15, 1986). (Exhibit

CÄ2).

  3. Eight copies of Respondent's No. 1 Finish Mill

Inspection/Checklists dated April 15, 16, 17, 1986. (Exhibit
CÄ3).

 4. Four copies of Respondent's Safety and Health Inspection

Checklists dated April 15, 17, 18, 1986. (Exhibit CÄ4).

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5. April 17, 1986, statement by respondent's Works Manager Ed
Pierce. (Exhibit CÄ5).

 6. Statement incorporated in exhibit CÄ1, under "Company

Remarks." (Exhibit CÄ6).

    7. Copy of respondent's "Work Rules." (Exhibit CÄ7).

    8. Copy of respondent's safety policy (exhibit RÄ1).

                       Findings and Conclusions

 As stated earlier, the issue in this limited proceeding at

this time is whether or not MSHA had made a reasonable and
credible showing that the discrimination complaint filed on
behalf of Mr. Hennessee is not frivolous.

 Webster's New Collegiate Dictionary defines the term

"frivolous" as "of little weight or importance." Black's Law
Dictionary, Revised Fourth Edition, 1968, defines the term as
follows:

    - - - "lacking in legal sufficiency"
    - - - "clearly insufficient on its face"
    - - - A "frivolous appeal is one presenting no justiciable
          question and so readily recognizable as devoid of any
          merit on face of record that there is little prospect
          that it can ever succeed"

 Mr. Hennessee's testimony regarding the existence of clinker

spillage material on the walkway ramp at dome No. 2 on April 17,
1986, is corroborated by the respondent's inspection checklist
reports (exhibits CÄ3 and CÄ4). In addition, in his statement of
April 17, 1986, Mr. Pierce admitted that "there was some clinker
in the walkway going to the bottom of the dome" (exhibit CÄ5).
Although Mr. Pierce states that the walkway could be travelled
safely, he qualified his statement by indicating that it could be
safely travelled "if you used the handrails." The statement also
reflects that when Mr. Pierce and Mr. Garcia returned to the dome
to retrieve the old motor left by Mr. Smith and Mr. Hennessee,
Mr. Pierce had to hold on to the handrail so that he would not
slip on the clinker. Mr. Pierce's statement contains no assertion
that the walkway had been cleaned or swept so as to leave any
"pathway" clear of clinker.

 Mr. Pierce testified that when he and Mr. Garcia returned to

the dome area, he observed that a "path" had been cleared

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of clinker. However, he conceded that clinker material still
existed under the handrails and the belt.

 Although Mr. Garcia testified that the walkway ramp was

clear of clinker, he indicated that a "pathway" 3Äfeet wide had
been cleared, but he did not indicate that the entire width of
the ramp had been swept or cleared of the clinker. He also
indicated that Mr. Zapata informed him that the ramp had been
swept clean, but that this information was given to him after the
completion of the work by Mr. Smith and Mr. Hennessee.

 Mr. Fuentes testified he assigned employees Davis and Hickey

to clean the walkway at 12 noon, and that it took them 2 hours to
do the work. He stated that the work was completed at 3:00 p.m.,
when Mr. Fuentes went to the area to confirm that the cleanup had
been done. However, Mr. Fuentes confirmed that all of the clinker
had not been removed from the ramp, and that only a "pathway" had
been provided, and that the clinker had simply been swept under
the belt and that it would be completely loaded out when the belt
was again operational.

 The respondent's safety inspection checklist for April 17,

1986, reflects that upon an inspection of the plant conducted
between the hours of 2:00 p.m. and 10:00 p.m., a hazard existed
on "ramp to dome No. 2 clinker spillage." The checklist report
for April 18, 1986, reflects that an inspection conducted at 3:00
a.m., reflected tripping hazards under Dome No. 2 by the belt
feeder, and that scattered clinker may have been present at that
same location (exhibit CÄ4). Another report for the first shift
on April 17, 1986, reflects spillage at the LÄ27 belt, and
another report for the 10:00 p.m. shift reflects spills at the
LÄ27 belt, and spillage at Dome No. 2 along the LÄ27 belt and
catwalk (exhibit CÄ3).

 Mr. Hennessee's testimony and his prior statements reflect a

consistent belief on his part that his reluctance to remove the
burned out motor after the completion of his repair work on April
17, 1986, was based on his belief that the existence of clinker
material on the ramp walkway rendered the ramp unsafe to traverse
with the motor. Further, Mr. Pierce's statement of April 17, 1986
(exhibit CÄ5), and his testimony, support Mr. Hennessee's
contention that he communicated his safety concerns to Mr. Pierce
as the reason why he was reluctant to initially remove the burned
out motor from the dome after the completion of the job.

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Mr. Garcia's testimony that Mr. Smith said nothing to him about
the condition of the ramp walkway is contradicted by Mr.
Hennessee's statement to Inspector Belanger during an interview
on May 1, 1986. A copy of the interview was reviewed by me in
camera, and it contains a statement by Mr. Hennessee that Mr.
Smith informed him that he told Mr. Garcia that the walkway was
littered with clinker spillage, and that Mr. Smith wanted Mr.
Garcia to be aware of this fact in the event that Mr. Hennessee
and Smith were held responsible if they were to fall on the ramp.

 Mr. Garcia's assertion that he was not made aware of any

clinker on the ramp is also contradicted by the narrative
"Company Remarks" portion of the warning and termination decision
of April 22, 1986 (exhibit CÄ1). That statement reflects that Mr.
Hennessee informed Mr. Garcia that he would not return to take
the motor out of the dome because it was unsafe with spilled
clinker on the ramp and that he had nearly fallen when he and Mr.
Smith went down the ramp to install the new motor earlier.

 After careful review of the testimony, evidence, and

pleadings filed in this matter, I conclude and find that it
raises a viable issue as to whether or not the incident which
prompted Mr. Hennessee's termination, that is, his statement to
Mr. Pierce that he would not go to the dome and remove the motor,
justified his termination, or whether his refusal or reluctance
was in any way prompted by his asserted belief that to retrieve
the motor in the circumstances then presented, was the result of
a reasonable belief on his part that to do so would expose him to
an injury, hazard, or danger.

 In view of the foregoing, I conclude and find that the

complaint filed in this matter has merit and is not frivolous.
Accordingly, I further conclude that pursuant to Commission Rule
44, 29 C.F.R. 2700.44(d), MSHA's application for the temporary
reinstatement of Mr. Hennessee pending a final determination of
his complaint on the merits should be granted.

                             ORDER

 Respondent IS ORDERED to immediately reinstate Mr. Hennessee

to his electrician's position at the prevailing wage rate for
that position and with the same or equivalent duties as assigned
to him immediately prior to his discharge.

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During the course of the hearing, MSHA's counsel stated that MSHA
will soon file its discrimination complaint. The respondent will
have a full opportunity to respond, and the parties will be
afforded an opportunity to be heard on the merits of the
complaint. They will be notified further as to the time and place
of the hearing.

                        George A. Koutras
                        Administrative Law Judge