Terrazas, Incorporated
Terrazas, Incorporated (FMSHRC CENT 96-40-DM): Temporary reinstatement ordered
Apply this to your situation
This order from 1996 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
Irineo G. Beltran, a laborer working for Terrazas at the Chino copper mine, alleged that he was discharged after objecting to the safety of a Gehl sweeper. Judge George A. Koutras found that MSHA showed the discrimination complaint was not frivolous, while leaving the ultimate merits for a later hearing. The judge ordered Terrazas to reinstate Beltran as a laborer or in a similar position, at the same pay and with the same or equivalent duties, within 15 days. The order did not decide permanent discrimination or impose a civil penalty.
Decision snapshot
- Cited provision(s): 30 U.S.C. § 815(c)(1), 30 U.S.C. § 815(c)(2), 30 U.S.C. § 815(c)(3), 29 C.F.R. § 2700.45
- Outcome: Temporary reinstatement was granted pending a hearing on the merits of the discrimination complaint.
- Key point: The temporary-reinstatement question was whether the complaint was frivolous, not whether discrimination had already been proven.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 26, 1996
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), on :
behalf of IRINEO G. BELTRAN, : Docket No. CENT 96-40-DM
Complainant : MSHA Case No. SC MD 95-02
v. :
: Chino Mines
TERRAZAS, INCORPORATED, : Mine I.D. No. 29-00708
Respondent :
DECISION AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Ernest A. Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Complainant;
Matthew P. Holt, Esq., Sager, Curran, Sturges
& Tepper, Las Cruces, New Mexico, for Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a complaint of alleged
discrimination and an application for temporary reinstatement
filed by MSHA on behalf of the complainant, Irineo G. Beltran,
formerly employed by the respondent as a laborer. The com-
plaint was filed pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.,
following an MSHA investigation, and MSHA seeks the temporary
reinstatement of Mr. Beltran pending further consideration of
his complaint.
The complaint and supporting affidavit alleges that the
respondent discriminated against Mr. Beltran by unjustly termi-
nating him on or about March 21, 1995, for refusing to work in
unsafe conditions, namely, his alleged refusal to operate an
unsafe sweeper used for cleaning the mine parking lots. In
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this regard, the supporting affidavit executed by MSHA’s
Acting District Manager for the South Central District states,
in relevant part, as follows:
*** The investigation determined that Mr. Beltran
was discharged on March 21, 1995, when he refused
to operate an unsafe sweeper used for cleaning
parking lots. The continued operation of the
sweeper could have resulted in serious injury to
the complainant or another employee because its
defects made it difficult to control and it could
have run into another vehicle or employee.
The relief requested by MSHA includes (1) a finding that
the respondent unlawfully discriminated against the complainant
by discharging him for engaging in protected activity, (2) an
appropriate civil penalty assessment against the respondent
pursuant to section 110(i) of the Act for the alleged violation
of section 105(c)(1), and (3) the temporary reinstatement of
Mr. Beltran to his laborer’s position, at the prevailing wage
rate and with the same or equivalent duties as assigned to him
immediately prior to his discharge.
The respondent filed a timely answer to the complaint
contesting Mr. Beltran’s reinstatement and denying that he was
terminated. The respondent asserted that Mr. Beltran “chose to
leave of his own free will” after being told “to do a better
job on the project that he was involved with at the time, or
else to go ahead and go home.” Respondent concluded that
“Mr. Beltran’s choice was to leave his work site rather than to
do a better job.” The respondent further asserted that the Gehl
sweeper in question was not cited by MSHA, and was inspected by
one of its inspectors and found to be “fine and safely operable.”
A hearing was conducted in Truth or Consequences,
New Mexico, and the parties appeared and presented testimony,
evidence, and arguments on the record in support of their
respective positions. At the conclusion of the hearing, I
issued a bench decision concluding that the complaint filed
by MSHA was not frivolous and that Mr. Beltran should be
temporarily reinstated pending a further hearing on the merits
of his complaint.
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Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2. Sections 105(c)(1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(1), (2) and (3).
3. Commission Rules, 29 C.F.R. § 2700.1, et seq.
particularly Rule 45, 29 C.F.R. § 2700.45, Temporary
reinstatement proceedings, which states, in relevant part,
as follows:
The scope of a hearing on an application for tempo-
rary reinstatement is limited to a determination by
the Judge as to whether the miner’s complaint is
frivolously brought. In support of his application
for temporary reinstatement the Secretary may limit
his presentation to the testimony of the complainant.
The respondent shall have an opportunity to cross-
examine any witness called by the Secretary and may
present testimony and documentary evidence in support
of its position that the complaint is frivolously
brought.
Stipulations
The parties stipulated that the presiding judge has
jurisdiction in this matter, and that the respondent is covered
by the Act. The respondent agreed that it is an independent
contractor performing cleaning operations at the parking lot of
the subject mine, and that for the purposes of this proceeding,
it is a covered employer (Tr. 8-9).
Issue
The issue presented is whether or not the petitioner’s
discrimination complaint filed against the respondent has been
frivolously brought.
Discussion
Mr. Beltran’s signed initial complaint, dated April 10,
1995, and filed by mail with MSHA’s Albuquerque, New Mexico field
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office on April 14, 1995, states that he was discharged by the
respondent on March 21, 1995, from his $6.75 per hour laborer’s
job. His verbatim complaint states as follows:
On March 21st 1995 at 12:20 p.m. I was on lunch
break. I was setting inside unit #5 pickup truck,
Cruz Terrazas came to the truck where I was eating
lunch in a very angry mode, and ask me what kind
of shit I was doing. I ask him why? He replied
that kind of shit you are doing is no good. I told
him I could not do any better because the sweaper
was no good. I told him this sweaper is not so safe
to do the job. Cruz then left. In about 2 minutes
he returned, was still very angry and approached me
again. He was saying to me to do a better job than
that or get the fuck out. He was so close to my face
I could feel spit hitting my face. I told Cruz this
sweaper is not safe and I will not continue to operate
it. Cruz told Carlos Miranda, another employee, to
get me out of the mine. He repeated very angry over
and over get him out get him out. I feel I should
get back and be payed (sic) for all the time and money
I have spent on gas looking for work.
A supporting statement by laborer Carlos Miranda, included
as part of Mr. Beltran’s complaint, states as follows:
On March the 21st at 12:20 p.m. I Carlos Miranda was
having lunch with Mr. Irineo Beltran. When Cruz
Terrazas was telling Mr. Beltran he had to do a better
job then what he was doing or to get the fuck out of
the mine. Mr. Beltran told Cruz he could not do any
better because the sweeper was no good and not safe
to work with. Cruz was very angry with Mr. Beltran
because he want him to do a better job. Mr. Belrtan
explained the conditions of the sweeper, but Cruz told
me in a very angry voice to get this man out of the
mine. Over and over. He was right in Mr. Beltran face.
Mr. Beltran walked away.
At this stage of the proceeding, the only issue is whether
or not the petitioner’s complaint has been frivolously brought
and whether Mr. Beltran should be temporarily reinstated pending
a further hearing on the merits of his complaint. Any findings
and conclusions with respect to the ultimate issue of alleged
discrimination, including any remedial sanctions and remedies,
will be made after a hearing on the merits has been concluded.
See: Secretary v. Thunder Basin Coal Company, 15 FMSHRC 2425
(December 1993); and Secretary v. Jim Walter Resources Inc.,
9 FMSHRC 1305, 1306 (August 1987), aff’d Jim Walter Resources
Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), where the court
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stated, as follows, at 920 F.2d 747:
The legislative history of the Act defines the
‘not frivolously brought standard’ as indicating
whether a miner’s complaint appears to have merit’
- an interpretation that is strikingly similar to
a reasonable cause standard. [Citation omitted.]
In a similar context involving the propriety of
agency actions seeking temporary relief, the
former 5th Circuit construed the ‘reasonable cause
to believe’ standard as meaning whether an agency’s
theories of law and fact are not insubstantial or
frivolous.’ See Boire v. Pilot Freight Carriers,
Inc., 515 F.2d 1185, 1189 (5th Cir. 1975) cert denied,
426 U.S. 934, 96 S. Ct. 2646, 49 L.Ed 2d 385 (1976).
At the hearing, the petitioner presented the testimony of
adverse witness Cruz Terrazas, the respondent’s vice-president,
Judy Peters, the MSHA special investigator who conducted an
investigation of Mr. Beltran’s complaint, Mr. Beltran, and
Carlos Miranda.
The respondent relied on the testimony of Mr. Terrazas,
Anthony Maynes, formerly employed by the respondent in March,
1995, as an operator/laborer, and now employed by the Phelps
Dodge Mining Company, and Jesus Perez, employed by the respondent
as a site superintendent, and who was the project supervisor for
the work being performed by the respondent at the Phelps Dodge
Chino Mine in March 1995.
Cruz Terrazas, respondent’s vice-president, testified that
the respondent is an independent contractor and that on March 21,
1995, it was performing contractual cleanup work at the Chino
Mine, a copper mine located in Santa Rita and operated by the
Phelps Dodge Company. He stated that Mr. Beltran was employed as
a laborer and had worked for his company “on and off” for more
than two years.
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Mr. Terrazas stated that on March 21,1995, Mr. Beltran was
assigned to operate the Gehl sweeper to clean the mine parking
lot area. He considered Mr. Beltran to be a trained equipment
operator, but did not know who trained him, and he was not aware
of any training records for Mr. Beltran at that time.
Mr. Terrazas stated that his job foreman and Mr. Beltran’s
supervisor at the work site on March 21, 1995, was Jesus Perez,
and that he (Terrazas) went from job site to job site to check
out the work. There were two Gehl sweepers and seven other
sweepers at the site on March 21, and he did not know if
maintenance records were maintained at that time. Mr. Terrazas
stated that he considered Mr. Beltran to be a “complainer” who
always found someone else, or the equipment, to be at fault.
He stated that he was unaware of any employees who were fired
in 1995 (Tr. 10-18).
Mr. Terrazas stated that he could not recall testifying at
Mr. Beltran’s unemployment claim hearing that the sweeper in
question had two uneven tires. He believed that the sweeper
operated by Mr. Beltran on March 21, had the same sized tires
and that the sweeper mechanism was an attachment that was new.
He was not aware that the sweeper had a pin missing or that it
leaked hydraulic oil. He stated that the sweeper was
approximately one year old (Tr. 27-28).
Mr. Terrazas identified complainant’s Exhibit No. 1 as a
copy of a discharge slip stating that Mr. Beltran was discharged
on March 21, 1995, and he confirmed that Sammie Vigil, whose
signature appears on the slip, is one of his superintendents.
Mr. Terrazas was of the opinion that Mr. Beltran quit his job
(Tr. 28-30).
Mr. Terrazas denied that he has a bad temper, but admitted
that he is impatient. He confirmed that he and Mr. Beltran were
arguing at the time of the March 21 incident. He stated that
22 people were assigned to clean the mine site that day, and that
the parking areas consisted of approximately one acre. He stated
that he told Mr. Beltran that he wanted the job done and gave him
the option of using a broom and shovel, rather than the sweeper,
to get the job done.
On cross-examination, Mr. Terrazas stated that he had a
contractual obligation to complete the mine clean up job by
the next day, March 22, and to remove all of his equipment by
one o’clock. He stated that other employees were using brooms
and shovels to clean up, and he did not believe that this was
unsafe. He stated that no one informed him that there was
anything wrong with the sweeper, and Mr. Beltran simply told
him that it was an old piece of junk that was “not worth a shit.”
He further stated that Mr. Beltran said nothing about any missing
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pins, hydraulic leaks, or uneven wheels (Tr. 35-39).
Mr. Terrazas stated that the sweeper and the machine to
which it is attached operate at one speed, and that if it is
operated too fast, it will not pick up all of the dirt and
will leave it in rows on the ground. He stated that he told
Mr. Beltran to slow down while operating the machine and that
he assigned someone else to operate it after Mr. Beltran quit
and left the work site at noon on March 21 (Tr. 39-40).
Mr. Terrazas stated that no one advised him that there was a
problem with the sweeper machine and that MSHA inspected it
after the complaint was filed and that it was not “red-tagged”
as unsafe. He denied that Mr. Beltran was discharged for safety
reasons or out of retaliation for making safety complaints
(Tr. 42-45).
Mr. Terrazas stated that he visited the work site on
March 20, but did not recall how long he was there and could
not recall seeing anyone there. He was at the site the next
day, March 21, for approximately 45 minutes and recalled
that he spoke with Mr. Beltran for ten to fifteen minutes.
He stated that Mr. Beltran did not want to hear anything else
and kept repeating that the sweeper machine “was a piece of
shit” and that he was upset and angry. Mr. Terrazas stated
that his employees were not afraid to complain to him, but
that all complaints were to go to their foremen (Tr. 46-49).
Mr. Terrazas denied that his employees were afraid to complaint
to him out of fear of being fired (Tr. 51).
In response to bench questions concerning the company
separation form stating that Mr. Beltran was discharged,
Mr. Terrazas stated that the superintendent who signed it
assumed that Mr. Beltran had been fired because Mr. Beltran
told everyone that this was the case and the form had already
been filled out (Tr. 52-53).
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Judy Peters, MSHA Supervisory Safety and Health Inspector,
confirmed that she conducted the investigation of Mr. Beltran’s
complaint and initially contacted and interviewed Mr. Beltran
and Mr. Miranda. She also interviewed Superintendent Virgil,
Mr. Terrazas, and other company personnel who provided her with
the respondent’s defense. She stated that she determined that
an act of discrimination occurred after considering the
five elements necessary to make that determination, namely that
Mr. Beltran was a miner working at a mine location; that he was
involved in protected activity by operating a piece of machinery
at a mining operation and made a safety complaint; and that an
adverse action of discharge had been taken against him. She
also considered the respondent’s defense and concluded that
there “was the nexus, which is a connection between all of these
acts” (Tr. 60-62).
Ms. Peters stated that after she concluded that a case
of discrimination occurred, her recommendation and file was
forwarded to MSHA’s District Manger, and then to MSHA Head-
quarters in Arlington, Virginia, where the Solicitor’s Office
decides whether to pursue the case further (Tr. 62-63).
Ms. Peters explained her investigative contacts and
interviews, including interviews with Mr. Terrazas and
Mr. Beltran, and she confirmed that she either took their
statements personally, or was present and transcribing their
statements taken by a fellow inspector (Tr. 66-67).
On cross-examination, Ms. Peters declined to make the
investigative file available to the respondent’s counsel or
to reveal the names of any miner witnesses she may have
interviewed, and objections posed by counsel were overruled
(Tr. 68-73). She confirmed that her conclusions regarding the
complaint were made after she completed the investigation and
after she spoke with Mr. Terrazas (Tr. 74). She confirmed that
she did not inspect the sweeper in question, and responded as
follows to questions about Mr. Beltran’s belief that the sweeper
was unsafe (Tr. 74-75):
Q. If there was nothing wrong with the Gehl
sweeper, and if Mr. Beltran believed there was
nothing wrong with the Gehl sweeper, do you
believe he would be protected in the event that
someone took action against him because he said
the equipment was a piece of shit?
A. All the complainant has to have is a sincere
belief that the piece of equipment is unsafe to
operate and could cause him or any other individual
harm.
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Q. I don’t think you answered my question.
A. Well, rephrase the question, please.
Q. If, in fact, there wasn’t anything wrong with
the equipment, and if, in fact, Mr. Beltran did not
believe there was anything wrong with the equipment,
would he be protected if he made complaints about it?
MR. BURFORD: I think its’s been asked and answered.
JUDGE KOUTRAS: Well, he’d be protected, counsel , but
he probably wouldn’t prevail in his discrimination case.
I think that’s the answer, wouldn’t you agree?
THE WITNESS: Yes, sir.
Ms. Peters stated that she evaluated whether or not
Mr. Beltran sincerely believed the sweeper was unsafe by
the statements made by Anthony Maynes and Carlos Miranda.
Mr. Maynes stated that Mr. Beltran said that someone was
going to get hurt on the sweeper (Tr. 76).
Ms. Peters stated that she was not provided with any
information that Mr. Beltran had ever been reprimanded, and
she was unaware of his state unemployment compensation claim
until after her investigation (Tr. 77).
In response to bench questions, Ms. Peters stated that an
MSHA inspector went to the work site the week the complaint was
filed to inspect the Gehl sweeper in question. However, the
only one he found was being repaired in the shop and could not
be inspected, and a second one could not be found (Tr. 83-84).
No determination was made as to which sweeper Mr. Beltran may
have been operating on March 21, 1995, because there was some
confusion as to the sweeper serial number and Mr. Beltran was not
present to point it out (Tr. 84).
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Ms. Peters stated that when she interviewed Mr. Beltran
he described in detail several things that were wrong with
the sweeper, including a missing pin, lack of reflectors, an
inoperable back-up alarm, and difficulty in controlling the
directional machine hydraulic controls, and he expressed his
fear that the missing pin might cause him to overturn and that
he had to use both hands to control the hydraulic controls
(Tr. 85). When asked why Mr. Beltran did not provide these
details in his initial complaint, Ms. Peters responded, “the
fact that he said is was unsafe was enough for us to pursue
it” (Tr. 85). She confirmed that the MSHA complaint form was
filled out by Mr. Beltran and mailed to the district office
(Tr. 86-89).
Ms. Peters stated that Mr. Maynes confirmed that
Mr. Beltran said someone would get hurt on the machine
and Mr. Miranda said that Mr. Beltran was trying to tell
Mr. Terrazas that the machine was unsafe, but that
Mr. Terrazas would not listen to him. Mr. Miranda told her
about the equipment defects, and two people told her the
braking system was not working properly (Tr. 90-91).
Ms. Peters stated that she determined that Mr. Maynes and
Mr. Miranda were present on March 21, when Mr. Terrazas and
Mr. Beltran had their discussions and that they both told
her that Mr. Beltran stated that the machine was unsafe.
Ms. Peters stated that based on these statements, she
concluded that there was enough to move forward with the
complaint (Tr. 96). She further explained (Tr. 101-102):
THE WITNESS: Correct. Two witnesses said that
he did say -- one said he said someone was going
to get hurt on it, and the other one said he said
it was unsafe.
JUDGE KOUTRAS: These witnesses said he said that
to Terrazas or he said that to the two witnesses?
THE WITNESS: He said that to Terrazas.
JUDGE KOUTRAS: To Terrazas?
THE WITNESS: They witnessed the altercation.
JUDGE KOUTRAS: Both of these people indicate to you
that Mr. Beltran specifically told Mr. Terrazas that
this piece of equipment, in addition to what else he
said here, is, someone is going to get killed and its
unsafe?
THE WITNESS: Somebody is going to be hurt.
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JUDGE KOUTRAS: Somebody is going to get hurt.
THE WITNESS: Right. And the individual that said
that also said that he didn’t understand a lot of
Spanish, and he couldn’t understand everything that
was being said, but he did understand that he said
someone was going to get hurt, because for most of
the conversation, evidently, Terrazas and Beltran
were speaking in Spanish.
Ms. Peters stated that Mr. Terrazas did not state to her
that he fired Mr. Beltran for complaining about safety, but did
say that “he gave him a choice” (Tr. 104).
Irineo Beltran, the complainant, testified that he has
worked for the respondent for two or three years. He stated that
he operated the Gehl sweeper on March 20, 1995, and inspected it
before using it. He found that it was low on hydraulic fuel, had
no front or rear reflectors, no backup alarm, no safety belt, and
the left front tire was flat. He reported these conditions to
Jesus Perez, the general foreman, and Mr. Perez told him to call
the mechanic to start the machine and that Mr. Perez would send
someone to take care of the flat tire. Mr. Beltran operated the
machine, and inflated the tire three times during the course of
cleaning up that day with the sweeper (Tr. 107-111).
Mr. Beltran stated that the next day, March 21, 1995, while
eating his lunch in his truck, Cruz Terrazas confronted him about
the work that he was performing and told him “to get the fuck
out” if he could not do a better job. Mr. Beltran stated that he
told Mr. Terrazas that the equipment was not safe and offered to
prove it to him, but that Mr. Terrazas replied, “I don’t want to
hear nothing you say” (Tr. 111). Mr. Terrazas then instructed
Carlos Miranda to escort him from the property, told someone in
the security office that he had fired him, and Mr. Beltran left
the property (Tr. 113).
Mr. Beltran testified about his prior experience and
training operating similar equipment, and he explained that the
sweeper flat tire was changed, but the new tire was too big.
When asked if this created a safety problem, he responded as
follows (Tr. 114-115):
Q. Does that create a safety problem?
A. I feel that’s not safe to do the work because,
if you run it too fast, you can turn over or
you can hurt somebody.
Q. What about --
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JUDGE KOUTRAS: Excuse me. What if you didn’t run
it too fast?
THE WITNESS: If you run it too fast with the big
large tire and one small tire on the right side, you
can turn over.
JUDGE KOUTRAS: What does too fast mean? Why would
you run it too fast?
THE WITNESS: I never ran it too fast.
JUDGE KOUTRAS: If you didn’t run it too fast,
would there be a problem?
THE WITNESS: No.
Mr. Beltran further stated that the sweeper attachment had
one bolt missing and one bolt was four inches too high, and with
an uneven front tire, “it’s impossible for you to do the work”
(Tr. 115). He confirmed that he informed Mr. Perez about the
sweeper conditions on March 20, but that Mr. Perez “didn’t pay
too much attention to me.” Mr. Terrazas was not present at that
time, but that he tried to tell him about the sweeper conditions
on March 21, “but he didn’t listen to me, he just walked away and
said I don’t want to hear nothing about the equipment because I
bought that equipment brand new and I’m pretty sure it will work”
(Tr. 117).
Mr. Beltran explained the problem of operating the sweeper
with no reflectors and low hydraulic oil. He stated that he was
supposed to be doing other work on March 20 and 21, that he was
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not a sweeper operator, but was “forced to do the job in the
sweeper without training or qualifications. He stated that he
had not previously used such a sweeper (Tr. 118).
On cross-examination, Mr. Beltran testified about his
prior experience operating equipment similar to the Gehl sweeper.
He denied ever being laid off by the respondent (Tr. 121-122).
He also denied any prior reprimands or disciplinary actions
against him (Tr. 124-125). He explained that he could have done
a better job with another sweeper, but the one he was operating
“was unsafe to work” (Tr. 129). He concluded that he had
operated the sweeper 15 hours on Monday and Tuesday, before
Mr. Terrazas spoke with him, but denied that the sweeper was
ever safe and stated that he operated it because he was told to
(Tr. 130). He maintained that Mr. Terrazas fired him because
he got mad when he told him the equipment was unsafe, and became
angrier when he told him the equipment was no good (Tr. 132).
Mr. Beltran confirmed that Mr. Miranda and Mr. Maynes
were present during his encounter with Mr. Terrazas, but that
Mr. Maynes was 75 to 80 feet away and did not hear their con-
versations (Tr. 133). Mr. Beltran stated that on March 21,
he never refuse to work or state that he was not going to do
the job (Tr. 134).
In response to bench questions, Mr. Beltran stated that on
March 20 and 21, he was competent to operate the Gehl sweeper
and had previously operated one similar to that machine to
transport barrels (photographic Exhibit R-5). He further stated
that he had not previously operated the sweeper in question in
this case, but had operated others in better shape and good
condition (Tr. 138-140). He conceded that he operated the
sweeper that he considered was unsafe, but did so because the
general foreman told him he did not have the time to take care
of it and that he was to go ahead and do the job with the machine
(Tr. 141). He did not consider parking the sweeper because he
believed he would be fired and needed the job (Tr. 142-143).
Carlos Miranda, formerly employed by the respondent as
a laborer, testified that he was present at the job site on
March 20 and 21, 1995, and heard Mr. Beltran tell Mr. Perez
about the condition of the sweeper on March 20. He also heard
the conversation between Mr. Beltran and Mr. Terrazas on
March 21. Mr. Terrazas told Mr. Beltran that he was not doing
a good job and Mr. Beltran told Mr. Terrazas that the machine
was not working properly (Tr. 146). Mr. Terrazas then told
Mr. Beltran that “he was going to run him off,” and told
Mr. Miranda three times to remove Mr. Beltran from the
property (Tr. 147).
Mr. Miranda described the condition of the sweeper in
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question and stated that he told Mr. Beltran that he could
not use it on March 21 because “it wasn’t safe to work on
the machine” (Tr. 149, 154). He confirmed that Mr. Maynes
was present, “but fairly far away,” and that he (Miranda)
was closer and heard all of the conversation between
Mr. Terrazas and Mr. Beltran, but did not understand when
they spoke English (Tr. 147, 150).
Anthony Maynes, currently employed by Phelps Dodge Mining
Company, and previously employed by the respondent as an
operator/laborer on March 21, 1995, testified that he was
operating a scraper with a bucket that day scraping up dirt.
Two Gehl sweepers were being operated that day, and Mr. Beltran
was operating one of them. Mr. Maynes observed no problem with
the operation of that sweeper, and Mr. Beltran did not complain
to him about any problems with the machine (Tr. 172-174).
Mr. Maynes stated that he operated the sweeper that
Mr. Beltran had operated before he left the mine, and he operated
it with no problems after slowing it down and taking his time.
He noted no defects with the machine, and did not believe it was
unsafe for him or anyone else to use it, and he never told anyone
that he believed the sweeper was unsafe (Tr. 175). He stated
that he told Ms. Peters that he never had any problems with the
sweeper, and did not tell her that it was unsafe. He confirmed
that he had no conversation with Mr. Beltran concerning the
sweeper and did not remember Mr. Beltran say that it was unsafe
(Tr. 176).
On cross-examination, Mr. Maynes confirmed that during his
interview with Ms. Peters she took his statement and he read,
initialed, and signed each page, and he recalled that he told
Ms. Peters that Mr. Beltran stated that the machine “was junk and
stuff,” and that “it was unsafe because it was junk” (Tr. 178).
Mr. Maynes stated that he only heard some of the conver-
sation between Mr. Terrazas and Mr. Beltran, “because I was
further back,” and that “a lot of it was in Spanish, and I
don’t speak Spanish” (Tr. 180). He did not remember hearing
Mr. Terrazas tell Mr. Beltran to either leave or he could stay,
and also heard Mr. Terrazas ask Mr. Miranda to give Mr. Beltran a
ride to the gate (Tr. 180).
Mr. Maynes confirmed that he was trained in the operation
of the Gehl sweeper as part of his safety training, and that he
could report safety problems to Mr. Perez, or anyone else at
the job site (Tr. 181).
Jesus Perez, respondent’s superintendent, testified that he
supervised the cleaning project on March 20 and 21, and he told
Mr. Beltran that he needed to operate the sweeper slower to avoid
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leaving lines of dirt behind him. He stated that Mr. Beltran
operated the sweeper on March 20, and again on March 21, until
noon, and never informed him about any safety problems (Tr. 182-
186).
Mr. Perez stated that he was not present on March 21, when
Mr. Terrazas spoke with Mr. Beltran, but he did speak with
Mr. Beltran before he left the mine and Mr. Beltran told him that
he “wasn’t going to put up with any more shit,” and left the job
site. Mr. Perez stated that Mr. Beltran mentioned that he would
“get even; that he wasn’t going to be treated the way he was
treated” and indicated that he might write up a grievance against
Mr. Terrazas (Tr. 187-188).
Mr. Perez stated that some of the foremen believed that
Mr. Beltran was hard to work with and they had problems with his
work (Tr. 190-193; Exhibits R-6 and R-7). Mr. Perez stated that
Mr. Terrazas never said anything to him that would lead him to
believe that Mr. Beltran was terminated for complaining about
any safety issue, and he had no reason to believe that the
termination was for reasons other than Mr. Beltran’s unwilling-
ness or inability to do the quality of work that was expected
of him (Tr. 194).
On cross-examination, Mr. Perez stated that he did not
recognize Inspector Peters, but did recall giving a statement
to an MSHA inspector stating that he would hire Mr. Beltran back
(Tr. 195). He explained the operation of the Gehl sweeper and
confirmed that there were seven or eight other cleanup jobs that
Mr. Beltran could have performed on March 21, if he had refused
to work on the sweeper. He did not offer Mr. Beltran any of this
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work. He did not believe that two written supervisory complaints
against Mr. Beltran over a two-year period was excessive, and he
did not record any other complaints (Tr. 199-200).
Mr. Perez agreed that a Gehl sweeper with different sized
tires, a lack of hydraulic fluid, missing or loose attachment
bolts, and missing reflectors would cause a safety problem and
create a hazard for the operator or other people (Tr. 201).
In response to bench questions concerning the discharge
slip reflecting Mr. Beltran’s discharge (Exhibit C-1),
Mr. Perez stated that he and project superintendent Virgil had
the authority to fire employees. However, Mr. Perez did not
believe that anyone fired Mr. Beltran and stated that Mr. Virgil
“just wrote the paper,” but he had no idea why he did so and
only saw the discharge slip “after the fact” and did not try
to correct it (Tr. 213-214).
MSHA argues that based on the affidavit of its acting
district manager and the testimony of its witnesses at the
hearing, it is clear that it has established a prima facie
showing that the complaint was not frivolous. Recognizing
that a difference of opinion may exist as to the merits of
the complaint, MSHA concludes that it has established that
it had a good faith belief that the case merits a hearing on
the permanent reinstatement of Mr. Beltran.
The respondent argued that the “real issue” is whether
or not the Secretary reasonably believes he should have gone
forward with the case, and that this requires credibility
findings by the Secretary and more than simply filing a
supportive affidavit (Tr. 162-169).
The respondent further argued that there is no evidence
to support any conclusion that Mr. Beltran used the word
“unsafe” in describing the condition of the sweeper to
Mr. Terrazas on March 21, 1995, or that Mr. Terrazas retali-
ated against Mr. Beltran by discharging him for complaining
that there was something unsafe about the operation of the
machine. The respondent maintains that Mr. Beltran “was
terminated because he didn’t do a good job and didn’t have an
acceptable excuse” (Tr. 203-205). In this regard, I take note
of the fact that Mr. Terrazas testified that Mr. Beltran
voluntarily quit his job and was not discharged. In any
event, the thrust of the respondent’s arguments concerning
the “frivolously brought” issue is that the Secretary had no
probable cause to go forward with a case of discrimination, and
that the nexus of the alleged discriminatory conduct is lacking
(Tr. 204-205).
I take note of the fact that the respondent’s position
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Page 17
that Mr. Beltran voluntarily quit his job is contradicted by
its own testimony and assertion that he was discharged for
cause for doing a poor job. With regard to the respondent’s
assertion that Mr. Beltran did not specifically or directly
articulate any safety complaint to the respondent, I note that
he has a limited education, with a poor command of the English
language. I find that his testimony, and the testimony of
Mr. Miranda, is consistent with Mr. Beltran’s initial complaint
that he considered the condition of the sweeper in question to
be unsafe to do the job to which he was assigned. I also note
that Mr. Beltran’s testimony that Mr. Terrazas would not give
him an opportunity to explain the condition of the sweeper is
supported to a degree by Mr. Terrazas’s testimony (Tr. 47), where
he confirmed that he was angry and that all Mr. Beltran wanted
to talk about was the condition of the equipment.
After consideration of the arguments presented, I stated
my agreement with MSHA’s position in support of the request for
the temporary reinstatement of Mr. Beltran pending a hearing
on the merits of the complaint of discrimination, and concluded
that MSHA has carried its burden of establishing that the com-
plaint was not frivolously brought. My bench ruling in this
regard was based on my review of the initial complaint and
supporting affidavit, my in camera review of MSHA’s investigative
file, and the testimony of the witnesses who testified at the
hearing (Tr. 211).
I conclude and find that MSHA has made a sufficient showing
of the elements of the complaint pursuant to section 105(c) of
the Act, and my oral bench ruling in this regard is re-affirmed.
The question of who will ultimately prevail in this case will be
decided after a trial of the merits of the complaint.
ORDER
In view of the foregoing, MSHA’s request for the temporary
reinstatement of Irineo G. Beltran IS GRANTED, and the respondent
IS ORDERED to reinstate Mr. Beltran to the position of laborer
which he held on March 21, 1995, or to a similar position, at the
same rate of pay and with the same or equivalent duties. The
reinstatement shall be made within fifteen (15) days of the
date of this decision.
The parties ARE FURTHER ORDERED to communicate with each
other for the purpose of agreeing to a convenient trial date
for a hearing on the merits of the complaint, and they are to
communicate this to me by telephone, fax, letter, or conference
call within the fifteen day period.
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George A. Koutras
Administrative Law Judge
Distribution:
Ernest A. Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
Matthew P. Holt, Esq., Sager, Curran, Sturgess and Tepper,
P.O. Box 2065, 201 North Church Street, Las Cruces,
NM 88004-2065 (Certified Mail)
/lh
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