Manalapan Mining Company

Plain-English summary

Danny Foust was a foreman and certified electrician at Manalapan Mining's coal preparation plant when the company discharged him on May 31, 2001. The Secretary alleged that the discharge was retaliation for safety activity, including Foust's refusal to sign the electrical book because of overloaded circuit breakers, his concerns about using Nalco near a creek, and other alleged safety complaints. Judge Michael E. Zielinski found that refusing to sign the electrical book was protected activity, but found that the discharge was not motivated by it and would have occurred for legitimate business reasons tied to production problems and plant management. The complaint of discrimination was dismissed.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2); 30 C.F.R. §§ 77.800-1, 77.800-2, and 77.1713
• Outcome: The discrimination complaint was dismissed.
• Key point: Even where a miner engaged in protected safety activity, the complaint fails when the employer proves it would have taken the same action for legitimate business reasons unrelated to that activity.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                           OFFICE OF ADMINISTRATIVE LAW JUDGES
                               601 New Jersey Avenue, Suite 9500
                                    Washington, D.C. 20001


                                      March 6, 2003

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of DANNY FOUST, : Docket No. KENT 2002-203-D
Complainant : BARB CD 2001-15
v. :
: Preparation Plant
MANALAPAN MINING COMPANY, : Mine ID 15-12602
Respondent :

                                       DECISION

Appearances: Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant,
Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., Harlan, Kentucky,
For Respondent.

Before: Judge Zielinski

    This case is before me on a complaint of discrimination filed by the Secretary of Labor on

behalf of Danny Foust under Section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(2) (“the Act”). The Secretary alleges that Manalapan Mining Company
(“Manalapan”) discriminated against Foust by terminating his employment on May 31, 2001, as a
result of his complaints about safety. A hearing was held in Harlan, Kentucky. Following
receipt of the hearing transcript, the parties submitted briefs. For the reasons set forth below, I
find that Respondent did not discriminate against Foust and dismiss the complaint.

                                     Findings of Fact

     Manalapan has produced coal in and near Harlan County, Kentucky for many years.

After closing a facility at Brookside, Kentucky in 1997, it operated two facilities, the Highsplint
Division and RB Coal, both consisting of underground mines, preparation plants and load-out
facilities. Over the years, reductions in the market price of coal and decreasing quality of
mineable coal have resulted in constriction of Manalapan’s operations. The Highsplint operation
effectively closed on September 14, 2002. Tr. II 88-89; ex. R-11.1

      1
           The transcript of the hearing consists of two volumes. The transcript of the first

two days is referred to as “Tr.” The separately numbered transcript for the third day is referred to

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    Danny Foust had been employed at a coal preparation plant owned by Great Western

Coal, and was laid off when that operation shut down in 1995. In 1997, he began working for
Manalapan, operating a bulldozer loading coal in the mines at Highsplint. Later, he worked on
the crusher. When a vacancy occurred in a foreman’s position at the Highsplint preparation
plant, Foust, who had indicated an interest in such a position and was certified as a foreman and
electrician, was selected for the job. Duane Bennett, Manalapan’s chief executive officer, had
heard reports that Foust was a hard worker and wanted to give him a chance at the position.
Foust became the preparation plant foreman on the day shift in July of 2000. The foreman of the
day shift was also in charge of the second shift, which had its own foreman. As a certified
electrician, Foust was responsible for performing monthly electrical inspections and signing the
“electrical book.” Foust received an increase in pay and later became a salaried worker, earning
$700 a week. In addition he became eligible for higher bi-yearly bonuses and Bennett agreed to
make half of the payments for a new truck that Foust purchased.

    The preparation plant was a critical component of Manalapan’s mining operation. All of

the coal produced by the mines had to be processed through the plant to remove rock, clay and
other impurities. Coal had been mined at Highsplint for almost 100 years and the quality of that
remaining had declined considerably. Manalapan’s most recent reject rate was as high as 50-
60%, i.e., less than half of the raw product produced by the mines was marketable coal. The
preparation plant, often referred to as a “washer,” used water and chemicals to separate the
marketable “clean coal” from the waste, or “sludge.” Raw coal was crushed and combined with
water and a chemical, “magnatite,” which “floated” the useable coal from the sludge suspension.
The clean coal was then dried, passed through screens where it was sorted by size, and
transported by belts to stockpiles in the load-out area. Much of the water used in the process was
recirculated. It was routed to a large tank called a “thickener” where a chemical, “Nalco”, a
cationic, was added to help cause the clay and other suspended impurities to settle. The sludge
was moved to the tank’s center by rotating “rakes,” and was then pumped to a large
impoundment area. Water that was not reused was discharged into a ditch that fed down into a
series of settlement ponds. There was also a creek that flowed near the plant, roughly parallel to
the ditch. Foust and other foremen were periodically directed to add Nalco to the water in the
ditch and the creek. Trucks forded the creek making it muddy, and the Nalco settled the mud as
the water flowed down into a large settlement pond and eventually into an adjoining river.

    The Highsplint plant was an old facility, part of which had been re-built in conjunction

with the installation of the present washer in 1987. It was designed to be operated by four men.
Tr. II 33. Portions of the old plant were inactive, and some machinery had been removed. As
recently as 1997, the plant had operated with three shifts, two running production, and the third
performing maintenance. By the time Foust became foreman, the plant was operated on only two
shifts. The primary responsibility of the day shift was to process coal. However, repairs often
had to be made when equipment failures forced curtailment of plant operations. The primary
responsibility of the evening shift was to perform repairs and maintenance that could not be done

as “Tr. II.”

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while the plant was operating. However, the second shift typically processed coal for several
hours before shutting the plant down, especially if the first shift had experienced significant
down time. The respective foremen or members of their crews made daily notes of production
and repair/maintenance tasks in a book. Ex. C-4. The first shift listed repair or maintenance
tasks to be performed on the second shift, and the second shift checked the listed items as they
were completed. If an item was not able to be addressed by the second shift, the first shift might
do it, or it would be listed again the following day.

   The preparation plant was a highly complex processing facility. There were numerous

conveyor belts, vibrators and screens, motors, pumps, pipes and other devices, all of which
experienced significant wear and tear in handling the abrasive coal and waste products.
Continued efficient operation of the plant required substantial ongoing maintenance and clean-
up. After Foust assumed his foreman position in July of 2000, the preparation plant was
experiencing frequent breakdowns, coal spills, leaking pipes, and other problems, all of which
impacted adversely on the production of marketable coal. The inability of the plant to process
coal had caused the raw coal stockpile to grow to excessive proportions, almost ten times what it
should have been, which threatened to force curtailment of mining activities. Tr. 507-08.

     Bennett was increasingly concerned about the lack of production from the plant and the

resulting inability to ship sufficient quantities of coal to maintain the economic viability of the
Highsplint operation. In an effort to ascertain the causes of the problems at the plant, Bennett
assigned Earl L. Goins, a foreman at the RB Coal preparation plant, to make an assessment of the
Highsplint operation. Beginning in April 2001, Goins visited the facility during the day shift,
two or three times a week for several hours. Tr. 551-53. He did not have extensive discussions
with Foust about the operation, but did advise him of the purpose of his visits. Based upon his
observations over a period of two weeks, he compiled a list of 12-14 problems that he felt needed
to be addressed. He could not recall the specific items on the list, but described them as leaking
pipes that needed to be repaired or replaced, damaged or worn chutes that caused substantial
spillage, and similar items. Tr. 513-16. While he had concerns about Foust’s ability to “boss”
or manage the plant, he did not include any personnel issues on the list. Id. At least some of the
second shift miners reacted with hostility to Goins’ presence. He described “childish” things,
e.g., a crude drawing of a man in a noose labeled with his name.

    As Goins related his findings at the hearing, the plant was in a state of chaos. There were

a “huge” number of leaking pipes and large amounts of coal spillage. In his words, the plant
“just wasn’t being took care of.” Tr. 509-10. His concerns about Foust’s management
capabilities were based upon what he viewed as a lackadaisical attitude by the men under his
supervision. “If something broke, the men weren’t getting there to fix it.” Tr. 511. He described
an incident where a failure of a bearing required that a belt be shut down. Foust went to the
problem and worked on it - but only one other man came to help, after approximately 15 minutes.
Goins then went to look for the other men and found them just loafing or “piddling around.”
Tr. 548-49. Larry Ellis, the Highsplint surface foreman, made similar observations. Tr. 569.

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     In an effort to remedy the production problems, it was determined to try switching the

personnel on the respective shifts. This move effectively demoted Foust, because the foreman of
the first shift was also responsible for the second shift. Goins and Bennett testified that the
switch was tried just to see if things would improve, and because they didn’t want to do anything
drastic to the men, i.e., discharge them. Tr. 533; Tr. II 83. There was some improvement in the
first shift’s production following the switch, and considerable improvement in the response to
breakdowns. Tr. 544. However, the plant continued to experience too much down time to meet
production goals. Tr. II 136.

    Foust, who was a certified electrician, had inspected the plant’s electrical system

monthly, and through April 2001, had signed off on the electrical book. As Foust explained the
purpose of the book, both MSHA and the State of Kentucky required that electrical equipment
and circuits be inspected monthly and that the results of the inspections be noted in a book.2 He
would list any deficiencies and the date that repairs were made. Tr. 288-89. In late May 2001,
about a week before the end of the month, Foust decided that he would no longer sign the
electrical book, i.e., make the monthly certification that the electrical circuits of the plant met
applicable standards.3 Tr. 31-32; Tr. II 82. He did not want to be responsible for the electrical
circuits, and feared that he might go to jail if someone got hurt. Tr. 210-11.

    Foust’s primary concern was overloaded circuit breakers located near the thickener.

Tr. 211. The circuits for pumping sludge to the impoundment had become overloaded because a
larger motor, and then a second motor, were added. Tr. 468-70. In order to keep the circuits
closed and the pumps running, the doors to the breakers were left open and a fan was used to
blow cool air to the breakers. He testified that this posed a serious threat of electrocution
because a miner in the area might inadvertently contact one of the conductors carrying 480 volts.
A miner might also be struck by pieces of the equipment in the event of a catastrophic failure.
The condition was noted by a Kentucky State mine inspector, who threatened to shut the plant
down. However, it was allowed to operate on the condition that the breaker boxes be closed and
locked, with only a qualified electrician being in possession of the keys. Tr. 470-78.

   Larry Shakelford, the Highsplint operation’s shop foreman and chief electrician, had

overseen the addition of the pump and had ordered new circuit breakers to handle the increased
load. The breakers, which cost about $35,000, required about six weeks for delivery. Tr. 468-
72, 603. Six new boxes were delivered to the plant shortly after the Kentucky inspection, and
were promptly installed by Shakelford. As far as Ellis was concerned, the problem with the
breakers was Shakelford’s, and he was “talked to” about that.

   2
          See, e.g., 30 C.F.R. §§ 77.800-1 and 77.800-2, requiring that written records be

kept of monthly testing and examination of circuit breakers.
3
Foust decided to cease signing the electrical book rather than make notations of
the problems, because he felt that “they would never be fixed and they would shut us down.”
Tr. 290.

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     On May 30, 2001, the second shift commenced work at 3:00 p.m. and the plant was not

operating. There were several major problems that needed to be addressed, and the crew worked
overtime until about 2:00 a.m., on May 31, 2001. When the day shift arrived and powered-up the
plant, it ran for a few minutes, but had to be shut down because of major damage to the clean
coal conveyor belt. A strip, approximately a foot wide, had torn and become entangled in the
structure, extending the tear to approximately 300 feet. Goins, Ellis and Gary Smith, then the
first shift foreman, felt that the belt had been deliberately cut and tied off so that it would rip
when the conveyor was powered-up. Tr. 522-23. Other individuals believed that the belt could
have been damaged in the normal operation of the plant, e.g., by a piece of metal falling from the
structure or mixed in with the raw coal. Tr. 83-85, 104-05. Bennett viewed this breakdown as
the “last straw,” since he was paying the second shift men considerable overtime but couldn’t get
any production. Tr II. 85, 130-32. Bennett decided to discharge Foust and the miners on the
second shift. Goins had advised him that he didn’t think Foust could control the men, and
Bennett felt that Foust and the second shift were largely responsible for the plant’s problems. Tr.
II 84-86, 107, 133. Ellis came back to him and asked to be able to move one of the men, Tommy
Napier, to the first shift, which was short-handed, and he agreed. Tr. II 133. Foust and Derek
Hensley were laid-off on May 31, 2001. Ex. C-19A. The other second shift miner, Robert
Gross, worked two additional days.

    The plant was shut down while a piece of belt from another conveyor owned by

Manalapan was secured and spliced in. Operations resumed, but the plant continued to be
plagued with breakdowns. More extensive maintenance work was normally performed at the
beginning of July, when miners were on vacation. Bennett had hoped to be able to operate the
plant until the July break, but was forced to alter that plan. A few days after the plant resumed
operations, about June 11, 2001, when returning from an inspection of the impoundment, Bennett
and John Phillips, Manalapan’s engineer, observed that the rakes in the thickener tank were not
turning. The inability to pump sludge from the thickener dictated that the plant be shut down.
There was a build-up of sludge on the bottom of the thickener, and attempts to rotate the rakes
resulted in failure of the drive gears. The sludge pumps also failed. The water in the tank was
dipped out and the built-up sludge, which had become quite dense, was removed with a small
front-end loader. An old coat, a gear wrapped in a piece of brattice cloth, and a piece of metal
railing were discovered in the tank. The gear had migrated to the center of the tank and blocked
the opening to the sludge pumps. It appeared that the gear, and perhaps the other items, had been
deliberately placed in the tank.

    Bennett determined to shut the plant down for extensive repairs. He had not realized that

it was in as bad a shape as it was. Even though parts needed for the normal summer shut down
repairs had not been ordered, Manalapan commenced a major repair effort. As described by
Phillips, pipes, chutes and beams were replaced. Feeders were out of level because the springs
were broken and had not been replaced, which caused the metal to deform. Chute liners, which
should be replaced as they wear out, had not been replaced, causing the chute itself to wear
through. He estimated that the conditions were the result of many months of neglected
maintenance. Tr. II 65, 73. R.T. Welding & Fabrication, a contractor that had done extensive

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work at the plant in the past, was retained to perform some of the repairs. From June through
October, R.T. Welding performed repairs costing over $68,326.75. Tr. II 51-52; ex. R-10. The
plant was operational after a couple of weeks, but repairs and maintenance continued through the
summer as ordered parts arrived. By September, the plant was running efficiently with a crew of
four men. The raw coal stockpile was virtually eliminated, and the plant eventually needed to
operate only three days a week to process the coal produced by the mines. As noted previously,
the Highsplint operation, including the preparation plant, was closed for the foreseeable future, as
of September 14, 2002.

   On June 11, 2001, Foust filed a complaint of discrimination with MSHA, alleging that he

had been laid-off “due to complaining about unsafe work conditions at the Prep Plant.” Ex. C-

12. The following day, MSHA initiated an inspection of the Highsplint preparation plant.
    Inspections continued to early September. A total of 102 citations were issued for various
    alleged violations. Ex. C-1.

                      Conclusions of Law - Further Findings of Fact
    
    A complainant alleging discrimination under the Act typically establishes a prima facie
    

    case by presenting evidence sufficient to support a conclusion that he engaged in protected
    activity and suffered adverse action motivated in any part by that activity. See Driessen v.
    Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Pasula
    v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom.
    Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of
    Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 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 way motivated by protected activity. See Robinette, 3 FMSHRC at 818,
    n. 20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may
    defend affirmatively by proving that it was also motivated by the miner’s unprotected activity
    and would have taken the adverse action for the unprotected activity alone. Id. at 817-18;
    Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
    642-43 (4th Cir. 1987) (applying Pasula-Robinette test).

    While the operator must bear the burden of persuasion on its affirmative defense, the
    ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800;
    Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984).

Prima Facie Case - Protected Activity

    The Secretary asserts that Foust engaged in protected activity in three ways: his “refusal”

to sign the electrical book, which is alleged to be the “primary” reason for his discharge; his
raising of concern about putting Nalco into the creek; and his complaints to Ellis about various
hazardous conditions at the plant. A complaint made to an operator or its agent of “an alleged
danger or safety or health violation” is specifically described as protected activity in section

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105(c)(1) of the Act, 30 U.S.C. § 815(c)(1). I find that Foust engaged in protected activity when
he stated that he would no longer sign the electrical book because of the overloaded circuit
breakers. However, I find that he did not make other complaints about dangers or health or
safety violations, and that his expression of concern about the use of Nalco was not protected
activity.

    Approximately one or two weeks prior to May 31, 2001, Foust determined that he would

no longer sign the electrical book because he did not believe that the electrical circuits met
applicable standards. His action was prompted by the overloaded circuit breakers near the
thickener. Tr. 211; ex. R-6 at 34-36. At the hearing, he emphasized the dangers the overloaded
breakers posed to miners, including the risk of electrocution. Id. When questioned about why
the breakers were not treated as imminent dangers, however, he responded that the men “never
[were] around the boxes.” Tr. 404. Gary Smith, who became first shift foreman and was then
Foust’s supervisor, recalled him saying that he would no longer sign the electrical book. Tr. 628.
Foust testified that he told Ellis he would no longer sign the electrical book. Tr. 210, 436-37.
Ellis did not recall Foust stating that he would not sign the book. Tr. 584-85. I find that Foust
told both Smith and Ellis that he would no longer sign the electrical book because he believed
that the overloaded circuit breakers did not comply with safety standards. Foust, therefore,
engaged in activity protected under the Act.

    I also find that Foust raised concerns about the use of the cationic “Nalco,” in the creek.

He did not refuse to put it in the creek, but sometimes just didn’t do it. Tr. 314. His concerns
were the chemical’s toxicity to aquatic life and the effect it might have if it got into the water
supply of people that lived downstream, and were largely based upon his mistaken belief that the
creek ran directly into the adjoining river.4 Tr. 216-20, 291. There is no contention that the
chemical could not be used safely by him and other miners at Manalapan.5 He did not express
any concern over use of Nalco in the plant’s thickener or its placement into the ditch carrying
water discharged from the plant to a series of settlement ponds. Tr. 216-18, 291, 421. Neither
Foust nor the Secretary contend that the use of Nalco posed a danger to miners or violated the
Act or any of the Secretary’s health or safety standards promulgated pursuant thereto. Foust’s
concerns about the environmental impact of that particular use of the chemical were admirable.
However, his expression of those concerns was not activity protected by the Act.

   4
           Manalapan introduced a geological survey of the mine property depicting

elevations and the layout of the plant and settlement ponds. Ex. R-8. The survey, along with the
testimony of Ellis and Phillips, its engineer, establish that the creek flowed into a large settlement
pond, “Pond SG-1,” not into the river, and that Manalapan’s use of Nalco was consistent with all
regulatory requirements. Tr. 573-74; Tr. II 56, 75.
5
The label on the product cautioned that it: “May cause irritation with prolonged
contact,” and advised that the product should not be allowed to “get in eyes, on skin, on
clothing.” Ex. C-20. Foust testified that he read and followed the label’s advice and simply
didn’t get it on himself. Tr. 314.

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    The Secretary argues that Foust also complained about a number of hazardous conditions

described by himself and other witnesses. Foust, for example, testified that there were numerous
electrical hazards, “guards were rotted off,” the “catwalk was rotted out,” and the “basement was
full” of coal spills. Tr. 220-21. The Secretary asserts that Foust complained to Ellis about these
various conditions. However, Foust’s testimony about the alleged complaints was very general,
lacking as to times, dates and precisely what he complained about, other than lack of manpower.
Tr. 213-14, 220, 400-01, 434-35. Foust’s credibility regarding this issue is highly suspect. I find
that he did not make complaints about these various alleged safety hazards.

    As a foreman who was designated to conduct daily workplace inspections, Foust had the

responsibility to report hazardous conditions.6 He acknowledged his responsibility to conduct
preshift inspections, and his duty to report any hazardous conditions that he found. He testified
that he did, in fact, note in the preshift reports anything that needed to be fixed, and
acknowledged that it was his responsibility to correct hazardous conditions, including those
involving the electrical system. Tr. 401-05, 442; ex. R-6 at 23, 25-26, 40-41, 50-51. Yet, an
examination of the preshift reports that he authored fails to disclose any significant problems, the
only notations being that floors needed to be cleaned. Virtually none of the various unsafe
conditions described by Foust or other witnesses were listed in Foust’s preshift reports. Ex. C-3.
To explain this inconsistency, he testified that his preshift inspections were quite limited.
“Preshift is just checking the floors and the tunnel checking for methane. It’s just a preshift, real
fast inspection.”7 Tr. 403-04. Though he acknowledged that his preshift examination included

   6
            30 C.F.R. § 77.1713, requires that the plant be examined at least once during each

working shift and that a written record be kept of each such investigation “together with a report
of the nature and location of any hazardous condition found.”
7
Considerable evidence was introduced regarding another reason offered by Foust
to explain why he did not correct the various safety hazards he described. He testified that
substantial restrictions had been imposed on his ability to obtain parts and supplies, i.e., that
every part or supply item that he wanted had to be approved by Ellis or David Patterson, the
superintendent. Tr. 216. His testimony was marginally supported by Randy Kelly, who worked
in the parts warehouse until he was laid-off by Bennett on February 16, 2001. He testified that
the pre-approval policy “seemed” to apply only to Foust, not to the other day shift foremen, but
didn’t know whether Gary Smith, then the second shift foreman, was subject to the same
restrictions. Tr. 342-43, 355, 364-65. Kelly also explained that the warehouse maintained over
$1 million worth of parts and supplies, and that restrictions had been placed on the availability of
some items, especially more expensive items like circuit breakers, because of a theft and
concerns about waste and cost control. Tr. 347-48. He agreed that Foust got some of the things
he requested, but not others.

    Several other witnesses, including Frank Sargent, the warehouse manager, and David

Patterson, the surface superintendent, testified that there were no special restrictions applicable
only to Foust and described a common sense structure to the expenditure of funds for parts and

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checking for all hazards, including electrical hazards, he testified that he only examined the
electrical system during the monthly electrical examinations. Id. He explained that he had been
a foreman for only a short time and that he wasn’t familiar with the regulations.8 Id. Despite his
explanation, Foust acknowledged that the purpose of the preshift inspection was to prevent the
men on his shift from being exposed to such hazards, and that there was never an unsafe
condition that he couldn’t fix before the men started working. Tr. 402-05, 444-45.

    The record is the same with respect to various electrical problems claimed by the

Secretary to have existed. Foust testified that he performed a thorough inspection of the
electrical system each month, checking all the switches, breakers, and everything electrical.
Tr. 288-89. If anything was wrong he would write it down and then enter the date when it was
fixed. When he signed the book, he certified that “everything was right” in the electrical system.
Tr. 209-10. Despite the claims of numerous electrical hazards, Foust signed off on the electrical
book through April, 2001, certifying that there was nothing wrong with the electrical system.9

  Foust typically described his complaints to Ellis as lack of resources, i.e., “not enough

men and not enough time to . . . get all the stuff done” and not “enough men to run that big of a

materials. Requests for expensive items, e.g. those costing $500-$1,000 or more, typically had to
be authorized by management. Commonly used parts and supplies that were in stock, were
obtainable upon request. Tr. 562-63. Sargent explained that managers initiated a request for
parts or supplies by filling out a “Warehouse/Purchase Request” form. Respondent’s exhibit 5
consists of a sampling of eight such forms initiated by or on behalf of Foust during February -
April 2001. All of the requests bear notations that the requested items were purchased from a
supplier. Tr. 667-68.

    The weight of the evidence rebuts Foust’s claim, and I find that his access to parts and

materials was no more restricted than other managers. It would seem that if the availability of
such items was as restricted as Foust claims, there would be ample supporting evidence in the
form of purchase requests that bore no indication that the items had been ordered. No such
documentation was submitted.
8
Another troubling claim of ignorance by Foust occurred when he was questioned
as to why he didn’t report the alleged safety violations to MSHA. He answered that he didn’t
complain to MSHA because he would have been fired. When asked why he didn’t submit
anonymous complaints (See 30 C.F.R. §§ 43.1-43.8), he stated that he was unaware of his right
to make anonymous complaints, though he acknowledged receiving training that included the
subject of miners’ rights under the Act. Tr. 378-79.

   9
           As noted, infra, MSHA had conducted inspections in the plant during January to

March, 2001, and served a number of citations on Foust. Foust was responsible for correcting
those conditions, and they presumably were corrected.

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washer.” Tr. 213, 434-35; ex. R-6 at 26-27. Moreover, when asked why he was fired, he stated
it was because of his complaints about the use of Nalco in the creek and his refusal to sign the
electrical book. He did not include the alleged complaints about other safety hazards. Tr. 210,
288, 408; ex. R-6 at 65-68. Ellis testified that Foust had not made any “safety complaints” to
him. Tr. 569. Smith testified that Foust talked to him about general things, but did not recall
him making safety complaints. Tr. 624-25.

    I find that, with the exception of the use of Nalco in the creek and the overloaded circuit

breakers, Foust did not complain about the various other conditions described by him and other
witnesses. He made “general complaints” about limited resources, primarily what he viewed as
inadequate time/men to do the job of running the washer. Foust’s general complaints to Ellis
were not – were not intended to be – and were not taken as – complaints about dangers to miners
or safety or health violations. When he made them, he was not exercising rights under the Act,
and was not intending to do so. Rather, he was addressing why he was unable to remedy the
frequent interruptions in the plant’s production.

Adverse Action

    Foust clearly suffered adverse action. While the May 31, 2001, notice advised him that

he was “laid off,” Bennett intended to discharge him. His departure from Manalapan has been
treated as a discharge. In any event, a lay-off or discharge would constitute adverse action for
purposes of his present claim.

Motivation

   The principle issue as to Foust’s prima facie case is whether the adverse action was

motivated in any part by his protected activity. In Sec’y on behalf of Baier v. Durango Gravel,
21 FMSHRC 953, 957 (Sept. 1999), the Commission acknowledged:

   the difficulty in establishing a motivational nexus between protected activity and
   the adverse action that is the subject of the complaint. “Direct evidence of
   [unlawful] motivation is rarely encountered; more typically, the only available
   evidence is indirect. . . . ‘Intent is subjective and in many cases the discrimination
   can be proven only by the use of circumstantial evidence.’” [citing Chacon]. In
   Chacon, we listed some of the circumstantial indicia of discriminatory intent,
   including (1) knowledge of the protected activity; (2) hostility or animus towards
   the protected activity; and (3) coincidence in time between the protected activity
   and the adverse action. Id. We also have held that an “operator’s knowledge of
   the miner’s protected activity is probably the single most important aspect of a
   circumstantial case” and that “knowledge . . . can be proved by circumstantial
   evidence and reasonable inferences.” Id.

   As explained below, while Foust was discharged within a week or two of informing Ellis


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that he would no longer sign the electrical book, I find that Bennett made the decision to
discharge Foust entirely on his own and that he had no knowledge of Foust’s protected activity.
His decision was solely a product of his frustration with the plant’s poor production, which he
largely attributed to Foust’s inability to manage effectively.

     Bennett was Respondent’s chief witness at the hearing. He impressed me as a candid

individual, whose overriding concern was profitable operation of the Highsplint facility. He
testified, without contradiction, that he generally supported his workers, gave them bonuses when
times were relatively good and was reluctant to take adverse actions, such as discharges. He also
impressed me as a man who believed strongly in “company loyalty,” and who would take a dim
view of his employees invoking outside forces, such as MSHA, in the operations of the facility.
In a telling response to a question about whether Foust was called back to work after being laid-
off, Bennett stated: “No, he filed against me,” i.e., Foust had filed a complaint of discrimination
with MSHA. Tr. II 88. Bennett’s expressed hostility toward Foust’s post-termination exercise
of his right, suggests that he harbored hostility toward miners’ exercise of rights under the Act.
However, there is no evidence of pre-termination hostility or animus toward Foust because of any
of his claimed complaints. Ellis responded to his “complaints” quite benignly, replying “just do
[your] job the best [you] could.” Tr. 213-14. Foust testified that Ellis was not hostile towards
him, made no derogatory comments about him, and that he liked Ellis. Tr. 389-90, 401.

    Bennett made the decision to discharge Foust without consulting Ellis or anyone else.

Tr. II 130-33; Tr. 571. Smith handed Foust his lay-off slip and didn’t know why the decision had
been made. Tr. 637-39. Bennett’s decision to terminate Foust was the culmination of his
increasing frustration with the inability of the plant to process sufficient coal. His concerns had
prompted him to have Goins evaluate the operation. Tr. II 80. Goins eventually reported that,
while Foust was a hard worker, he was not capable of managing the men. Tr. II 82; Tr. 514-16.
As Bennett explained: “I was tired of excuses and I’d get reports, every day I get a report and I’d
look at those reports. It would be the same old thing over and over.” Tr. II at 80. Adding to his
frustration was the fact that production problems persisted despite substantial amounts of
overtime being worked by second shift miners. Tr. II 85, 130-31. His frustrations had nearly
reached the breaking point prior to the May 31 incident. Tr. II 84, 130-33. That incident caused
him to react by ordering the discharge of Foust and the second shift. The plant had been
operating poorly, the second shift had worked significant overtime the night before, and the plant
was non-functional at the start of the first shift. Tr. II 130-31.

    Bennett had no knowledge of Foust’s protected activity, i.e., his decision to no longer

sign the electrical book. While he had frequent interaction with Ellis, and clearly was aware of
Foust’s complaints about lack of resources, he regarded them as excuses for Foust’s inability to
remedy the frequent breakdowns that interfered with the plant’s production.

    I decline to draw an inference that Ellis informed Bennett of Foust’s protected activity,

because there are a number of possible reasons why Ellis would not have viewed Foust’s action
as an event meriting Bennett’s attention. Foust did not testify to the exact words that he used to

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inform Ellis of his decision. Judging from his demeanor at the hearing, it is unlikely that he did
so in an aggressive or hostile manner, and there is no claim that Ellis reacted with hostility
toward Foust. Ellis may not have understood Foust’s communication as a “refusal” to sign the
book, or he may have considered the problem to be a temporary one that would soon be resolved
by Shakelford’s installation of the upgraded breakers. The fact that Manalapan was subsequently
cited for failing to have examinations of the electrical circuits certified for the month of May,
suggests that Ellis placed little significance on Foust’s action. He neglected to assure that the
examination and certification were done, despite the ready availability of other qualified
individuals, including Shakelford and Rodney Tipton, a foreman at the R&B plant. Even if the
new breakers could not have been installed by the end of the month, the certification could have
been done with a notation of the problem of the overloaded breakers, along with the fact that new
breakers were on order. Inspectors were not likely to fail to discover such an obvious problem,
and it likely would have been better to note it, than ignore it. Inspectors from the State of
Kentucky were aware of the problem, and had not shut the plant down.

    There is no direct evidence of unlawful motivation and there is not enough circumstantial

evidence to justify a conclusion that Bennett’s discharge of Foust was motivated, in any part, by
Foust’s protected activity. Bennett had no knowledge of Foust’s protected activity, the “most
important” element of a circumstantial case. There was no animus or hostility toward Foust
because of his protected activity. Only a limited coincidence in time, one to two weeks, between
Foust’s protected activity and the adverse action suggests a relationship between the two. I find
that Bennett’s decision to discharge Foust was not motivated, in any part, by Foust’s protected
activity. Therefore, Complainant failed to establish a prima facie case of discrimination.

    I reach this conclusion based upon all of the evidence and my evaluation of the credibility

of the witnesses, chiefly Bennett and Foust. Bennett testified in an open and forthright manner,
and was consistent and convincing in his description of the economic problems and frustrations
that resulted from the inability of the preparation plant to operate efficiently. His openness was
apparent even when it was not to his advantage, e.g., when he expressed his hostility to the fact
that Foust had exercised his right to file a complaint of discrimination under the Act.10 I found
highly credible his testimony that his decision to discharge Foust and the second shift miners was
motivated by his building frustration with the operation, which was focused on Foust, who had
been reported to be a poor manager.

   10
           Seizing on Bennett’s statement at the hearing, the Secretary has argued that

Manalapan’s failure to call Foust back to work was retaliation for his filing of the discrimination
complaint. While Bennett expressed hostility to Foust’s exercise of his right to file a complaint
of discrimination, I do not find that he discriminated against Foust by not recalling him. Bennett
had intended that Foust be discharged, not laid-off, and he had no intention of re-employing him.
Manalapan’s operations were becoming smaller, Ellis explained that they didn’t need another
foreman, and Bennett felt that putting a former supervisor back to work in a non-supervisory
position would have posed problems.

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    As noted above, I believe that Foust inflated his claims that numerous unsafe conditions

existed at the plant and the nature of his “complaints” to Ellis. His overall demeanor was highly
deferential, and appeared consistent with that of someone who might not be an effective
supervisor. I have no doubt that he was a hard worker, both prior to and after becoming a
foreman. However, as foreman, his primary responsibility was making sure that his men worked
hard, something that, at least as far as Bennett was informed, he did not do effectively.

     I have also considered the many arguments advanced by the Secretary, but find them

insufficient to satisfy Complainant’s burden. The Secretary makes much of the fact that
Respondent terminated only two of the four second shift miners, Foust and Hensley. She asserts
that, while Napier’s move to the day shift was explained, Respondent offered no explanation as
to why Gross was not also discharged on May 31, 2001. She argues that Manalapan “forgot to
fabricate a reason for Gross’ continued employment after the layoff, further establishing that the
stated reasons for the ‘layoff’ were pretextual.” Sec’y’s Br. 93. However, this “theory” was not
developed at the hearing. Neither the Secretary, nor the Respondent, probed Gross’ status after
the layoffs. The “hours worked” reports for the time period in question, exhibit R-3, establish
that Gross worked only two more days. Gross testified that he left the plant voluntarily a couple
of days after the lay-offs. Respondent may well have been aware of Gross’ impending departure
and may simply have allowed him to work until the date he had chosen to leave, an explanation
at least as probable as the Secretary’s.

    The Secretary argues that the hiring of additional miners after the lay-offs exposes

Manalapan’s explanation as pretext. However, the decision to discharge the second shift was not
made as a permanent move to reduce labor costs, it was made because Bennett was not satisfied
with the performance of Foust and the men working the second shift. The hiring of additional
miners shortly after the lay-offs is consistent with Respondent’s explanation of the reasons for
the decision to discharge Foust. Some additional labor was also required for the significant
repair effort necessitated by the failure of the thickener, and the need to make other major repairs.

   The Secretary also argues that Ellis’ and others conclusion that the clean coal belt had

been deliberately cut was an attempt to build a pretextual reason for Foust’s discharge that “fell
apart” when the “witnesses didn’t have the heart to accuse Foust” of doing it. Sec’y’s Br. 90.
However, as Ellis stated, no one ever accused Foust of cutting the belt and he did not have any
idea who might have done it. Tr. 572. 589. Bennett never cited a suspicion or belief that Foust
had damaged the belt as a reason for his decision.

    The Secretary argues that the citations issued during MSHA’s inspection of the plant after

Foust’s departure confirmed the existence of numerous safety violations at the time Foust
allegedly made his complaints to Ellis. Complainant’s exhibit 1 consists of copies of citations
issued at the preparation plant from May 31 to September 6, 2001. However, it is far from
certain that most of the conditions cited existed for that length of time. MSHA had a somewhat
constant presence at the plant, and had conducted recent inspections. A number of citations had

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been served on Foust in January, February and March, 2001.11 Ex. R-4. While many of the
citations issued in the summer of 2001, were similar to those issued earlier, they were cited as
new violations. There were a number of “accumulation” violations, an ongoing problem at the
plant. Many of the guarding and electrical violations appear to have been within Foust’s ability
to correct, even with limited resources. In some instances, guards had simply not been replaced.
In others, guards were extended to cover small openings, which may have been of recent origin.

Respondent’s Affirmative Defense

    Even if Bennett had been aware of Foust’s decision not to sign the electrical book, and

that knowledge somehow played a part in his decision to discharge him, I find that he would have
taken the same action based solely upon Foust’s unprotected activity, i.e., Bennett’s perception
that Foust was an ineffective manager, largely responsible for failing to remedy the frequent
breakdowns that plagued the plant.

   In Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-

17 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983), the Commission
explained the proper criteria for analyzing an operator’s business justification affirmative
defense:

   Commission judges must often analyze the merits of an operator’s alleged
   business justification for the challenged adverse action. In appropriate cases, they
   may conclude that the justification is so weak, so implausible, or so out of line
   with normal practice that it was mere pretext seized upon to cloak discriminatory
   motive.

           The Commission and its judges have neither the statutory charter nor the
   specialized expertise to sit as a super grievance or arbitration board meting out
   industrial equity. Once it appears that a proffered business justification is not
   plainly incredible or implausible, a finding of pretext is inappropriate. We and
   our judges should not substitute for the operators’s business judgment our views
   on “good” business practice or on whether a particular adverse action was “just”
   or “wise.” The proper focus, pursuant to Pasula, is on whether a credible
   justification figured into motivation and, if it did, whether it would have led to the
   adverse action apart from the miner’s protected activities. If a proffered
   justification survives pretext analysis . . . , then a limited examination of its
   substantiality becomes appropriate. The question, however, is not whether such a
   justification comports with a judge’s or our sense of fairness or enlightened
   business practice. Rather, the narrow statutory question is whether the reason was


   11
             It was Ellis who appeared to be most concerned about those violations. Foust

testified that Ellis was “on him” to make sure that the violations were abated, which they
presumably were. Tr. 388-89.

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   enough to have legitimately moved that operator to have disciplined the miner.
   (citations omitted).

 The Commission further explained its analysis in Haro v. Magma Copper Co,

4 FMSHRC 1935, 1938 (Nov. 1982):

   [T]he reference in Chacon to a “limited” and “restrained” examination of an
   operator’s business justification defense does not mean that such defenses should
   be examined superficially or be approved automatically once offered. Rather, we
   intended that a judge, in carefully analyzing such defenses, should not substitute
   his business judgment or sense of “industrial justice” for that of the operator. As
   we recently explained, “Our function is not to pass on the wisdom or fairness of
   such asserted business justifications, but rather only to determine whether they
   are credible and, if so, whether they would have motivated the particular operator
   as claimed.” (citations omitted).

    Respondent, through Bennett, advanced a credible business justification for discharging

Foust. Bennett was extremely concerned about the frequent breakdowns that interfered with the
plant’s production of marketable coal. The raw coal stockpile had grown to excessive
proportions and threatened to negatively impact the other mining operations. This occurred
while Foust was foreman in charge of the first shift, essentially in charge of the plant. Bennett’s
concerns caused him to assign one of his trusted managers, Goins, to conduct an evaluation of
the operation of the plant. Goins reported that there were a lot of problems with what appeared
to be deferred maintenance items, and that Foust did not appear to have control of his men.
Bennett switched the first and second shifts, hoping to avoid more drastic action. All of this
occurred prior to Foust’s protected activity, which is alleged to be the “primary” reason for his
discharge. Things did not improve significantly. Bennett’s frustrations built to the point that the
incident of May 31, 2001, prompted him to discharge Foust.

    As noted above, I have found that Bennett was not motivated, in any part, by Foust’s

protected activity, of which he had no knowledge. Even if it could be said that Foust’s discharge
was based in some part on his protected activity, I find that Bennett would have taken the adverse
action against Foust based solely upon legitimate business reasons.12

   To some extent, Foust may have been unfairly blamed for the plant’s problems. As

Bennett stated, he hadn’t realized that the plant was in as bad a shape as it was. Tr. II 124. With
the accumulation of deferred, or poorly performed, maintenance, breakdowns were frequent and
production was impaired. While Foust had significant responsibility for maintenance, his

   12
           I would reach the same conclusion with respect to Foust’s expression of concern

over the use of Nalco in the creek, if that action were deemed to be protected activity.

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protests about limited resources may have had some legitimacy.13 On the other hand, if Foust
had been a more effective manager, maintenance tasks might have been better performed. It is
not the function of this Administrative Law Judge to resolve the ultimate fairness of whether
Foust should have born the brunt of Bennett’s dissatisfaction with the plant’s poor operation.
I am convinced that it was reasonable for Bennett to have concluded that Foust bore enough
responsibility for the problems that he should be discharged, for that reason alone.

                                         ORDER

   For the reasons stated above, I find that Bennett’s decision to discharge Foust was not

motivated in any part by Foust’s protected activity. Alternatively, I find that, had Bennett been
aware of Foust’s protected activity, he would have made the same decision based solely upon
legitimate business considerations. Accordingly, the Complaint of Discrimination is hereby
DISMISSED.

                                          Michael E. Zielinski
                                          Administrative Law Judge

Distribution:

Donna E. Sonner, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215 (Certified Mail)

Susan C. Lawson, Esq., Lawson & Lawson, PSC, P.O. Box 837, Harlan, KY 40831 (Certified
Mail)

Danny Foust, P.O. Box 311, Cawood, KY 40815 (Certified Mail)

/mh

   13
           Although the Secretary’s argument that Manalapan had decided not to spend

money on the plant fails to recognize that it maintained over $1,000,000 in parts and supplies and
had spent over $75,000 for work by R.T. Welding during the year 2000.

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