Secretary of Labor on behalf of Lige Williamson v. CAM Mining, LLC

Plain-English summary

Lige Williamson alleged that CAM Mining discharged him after he complained to his foreman about ventilation. Judge Jerold Feldman assumed the complaint occurred but found no reasonable connection between that activity and Williamson's discharge after a confrontation with the foreman. The judge concluded that the discrimination claim was frivolously brought, denied temporary reinstatement, and dismissed the proceeding. The Commission later held that the judge applied an unduly restrictive preliminary standard, reversed this decision, and ordered Williamson reinstated.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.44(c); 30 U.S.C. § 815(c)(2)
• Outcome: Temporary reinstatement was denied and the proceeding dismissed, but the Commission later reversed.
• Subsequent review: The Commission ordered retroactive temporary reinstatement in kent-2009-1428-d-commission.
• Key point: This decision treated the insubordination evidence as defeating any causal connection, an approach the Commission later rejected as improper at the preliminary stage.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

September 30, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of LIGE WILLIAMSON,

Complainant

v.

CAM MINING, LLC,

Respondent

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TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2009-1428-D

PIKE CD 2009-06

Mine ID 15-18911

Number 28 Mine

DECISION

Appearances:              Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Complainant;

Mark Heath, Esq., Spilman, Thomas & Battle, Charleston, West Virginia,
for the Respondent.

Before:                          Judge Feldman

This matter, heard on September 2, 2009, in Pikeville, Kentucky, is before me based on
an application for temporary reinstatement filed by the Secretary, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(c)(2), against
CAM Mining, LLC (CAM Mining) on behalf of Lige Williamson. This statutory provision
prohibits operators from discharging or otherwise discriminating against miners who have
complained about alleged safety or health violations, or who have engaged in other safety related
protected activity. Section 105(c)(2) of the Act authorizes the Secretary to apply to the
Commission for the temporary reinstatement of a miner pending the full resolution of the merits
of his discrimination complaint. The parties’ briefs, filed on September 24, 2009, have been
considered.

I. Statement of the Case

This temporary reinstatement proceeding is analogous to a preliminary hearing. Unlike a trial on the merits of a discrimination complaint brought by the Secretary where the
Secretary bears the burden of proof by the preponderance of the evidence, the scope of this
temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act, as well
as Commission Rule 44(c), 29 C.F.R. § 2700.44(c), limit the issue in an application for
temporary reinstatement to whether the subject discrimination complaint has been “frivolously
brought.” Courts and the Commission have concluded that the “not frivolously brought”
standard in section 105(c) is satisfied when there is a “reasonable cause to believe” that the
discrimination complaint “appears to have merit.” Centralia Mining Company, 22 FMSHRC
153, 157 (Feb. 2000) (citations omitted).

The Secretary contends Williamson engaged in protected activity on or about April 20, 2009, when he allegedly communicated ventilation related complaints to his foreman,
McArthur Swiney. CAM Mining denies that the alleged ventilation complaints occurred.
Williamson’s employment was terminated on May 15, 2009, following a May 13, 2009, confrontation between Williamson and Swiney. The confrontation occurred immediately after
Swiney criticized Williamson when a shuttle car, operated by Williamson, struck and damaged a
water line and power cable.

In view of the Secretary’s minimal burden of proof, without resolving any credibility
issues, Williamson shall be given the benefit of the doubt that his alleged April 20, 2009,
ventilation complaint occurred. However, the Secretary has not demonstrated that Williamson
was the victim of any meaningful retaliation during the intervening period from April 20 through
the May 13, 2009, confrontation. Williamson has conceded that he was not given any job
assignments that were inconsistent with his job duties as a utility man. In fact, Williamson
testified that, at his request, he was reassigned to lighter duty operating a shuttle car because his
knee condition limited his ability to hang curtains.

Rather, Williamson’s admissions that he “cussed” Swiney on May 13, 2009, and that he
believed he would lose his job for “cussing” his foreman out, reflect that there is no reasonable
cause to believe there is a nexus between Williamson’s alleged April 20, 2009, protected activity
and his May 15, 2009, termination for insubordination. (Tr. 92). Accordingly, the Secretary’s
temporary reinstatement case shall be dismissed because it does not appear to have the requisite
merit to demonstrate that it has not been frivolously brought.

II. Findings of Fact

There are two types of continuous mining sections at the No. 28 Mine. A super section is
ventilated by a double split of air that allows the simultaneous operation of two continuous
miners in separate entries. A normal continuous mining section is ventilated by a single split of air. In a single split of air the continuous miners operate on an alternating basis in separate
entries.

Lige Williamson is 55 years old. Prior to Williamson’s May 15, 2009, termination,
Williamson had been employed at CAM Mining’s No. 28 Mine as a utility man in a continuous
mining section, for approximately 21 months. His job duties involved construction and
maintenance of ventilation controls. Specifically, he was responsible for building concrete
permanent stoppings (brattices), hanging temporary stoppings (fly pads), and maintaining the line
curtain in all of the section entries. (Tr. 28, 29, 20-25).

Williamson was transferred from the No. 2 super section to the No. 1 section in the
middle of April 2009. (Tr. 34). Prior to Williamson’s transfer the No. 1 section had been a super
section. However, in April 2009 the section was being operated on a single split of air.
Williamson’s new section foreman was McArthur Swiney. Swiney is 66 years old and he has
approximately 49 years of mining experience. (Tr. 342). When Williamson started working on
the No. 1 section, he was performing normal utility duties involving the construction and
maintenance of ventilation controls.

The No. 1 section has seven entries. The left hand continuous miner operated in the No. 1 through 4 entries. The right hand continuous miner operated in the No. 4 through 7 entries.
Three shuttle cars loaded coal from the two miners. The left and center shuttle cars carried loads
from the left hand continuous miner. The right shuttle car carried loads from the right hand
continuous miner. The shuttle cars were equipped with booms that could be raised or lowered to
transfer coal from the belt on the continuous miner into the shuttle car.

After working a few days in the No. 1 section, Williamson reportedly noticed loaded
shuttle cars exiting from two different entries at the same time. Although Williamson could not
see or hear both the left and right hand continuous miners at the same time, he surmised that one
continuous miner was starting operations before the other continuous miner had stopped. In such
an event, methane and dust from the first continuous miner could be transferred inby to the other
continuous miner by the same split of air sweeping the face.

a. The Alleged April 20, 2009, Protected Activity

On or about April 20, 2009, Williamson alleges that he told Swiney that he believed that
there was overlapping operation of the continuous miners when each miner began its
advancement into its entry. Williamson stated that Swiney did not respond to Williamson’s
complaint. Williamson testified, “[Swiney] didn’t say nothing, just looked at me like I was
stupid.” (Tr. 38-39).

Williamson testified that after he complained to Swiney he was asked to do various tasks
that required physical labor including shoveling ribs, shoveling the tail piece area, and building
brattices. However, Williamson does not claim that he was asked to perform any job duties that
were inconsistent with the duties of a utility man. In fact, Williamson testified, “I’m not going to
say [Swiney] particularly made me do things outside my job title.” (Tr. 40). Williamson stated
that the stress caused by Swiney’s treatment of him caused Williamson to seek medical treatment
for chest pain. No medical documentation has been proffered.

Williamson returned to work after approximately two days of medical leave. In addition
to his stress related complaints, Williamson had a history of knee problems that were exacerbated
by the physical demands of constructing concrete stoppings. Upon Williamson’s return Swiney
permitted Williamson to switch jobs with a shuttle car operator to help lessen the stress on
Williamson’s knees. However, Williamson claims that before he complained about ventilation
Swiney called him “Lige.” After his complaint Williamson alleges that Swiney referred to him
as “asshole.” Significantly, Williamson has conceded that he never reported his alleged
ventilation complaint to any other CAM Mining official during the period of April 20, 2009,
when the complaint reportedly was communicated to Swiney, until May 15, 2009, when he was
terminated for insubordination. (Tr. 178, 183-84, 203-04).

Swiney testified that Williamson never complained to him about ventilation. Swiney also
denies that he called Williamson “asshole.” CAM Mining denies that the continuous miners in
the No. 1 section were operating simultaneously. In support of its denial CAM Mining
emphasizes that Williamson’s reported belief is speculative since he did not personally observe
both continuous miners operating at the same time. Moreover, CAM Mining maintains that the
No. 1 section lacked the electrical capacity to operate both continuous miners simultaneously.

On May 5, 2009, 104(a) Citation No. 8227386 was issued to CAM Mining for a violation
of the mandatory safety standard in section 75.370(a)(1), 30 C.F.R. § 75.3701(a)(1) that requires
a mine operator to follow an approved ventilation plan. The citation was issued because the No. 1 section was operating on a single rather than two distinct splits of air as provided in the
existing approved ventilation plan. The citation was terminated on May 7, 2009, after CAM Mining submitted an updated ventilation plan to conform with its single split of air
operation. The violation cited in Citation 8227386 was designated as non-significant and
substantial (non-S&S) in nature, and, the violation was attributed to a low degree of negligence.

b. The May 13, 2009, Insubordination

With the exception of whether or not Williamson pushed Swiney, the relevant events
surrounding the May 13, 2009, confrontation between Swiney and Williamson are not in dispute.
On the night of Wednesday, May 13, 2009, Swiney told Williamson to use the shuttle car to load
coal from the right side continuous miner that was operating in the No. 4 entry. Williamson
loaded the shuttle car and proceeded from the continuous miner down the last open cross cut
making a right turn into the No. 5 entry on his way to the loading dock. Williamson testified
that, upon turning in to the No. 5 entry, the shuttle car hit a wet spot in a dip in the mine floor.
The shuttle car slid through the intersection severing the water line and pinching the power cable
for the continuous miner. As a result, a fountain of water began streaming into the air.

Upon seeing the stream of water, Swiney approached the shuttle car to determine what had happened. Swiney accused Williamson of not raising the boom to avoid contact with the water line and cable. When Swiney approached, Williamson conceded he was
aggravated because striking the cable and water line is a mistake that is not supposed to happen. (Tr. 163-164; 190-191). Specifically, Williamson testified:

Q. So you didn’t like it when Mr. Swiney came up and told you if
you had your boom up, you wouldn’t hit the water line, did you?

A. When Mr. Swiney came up, I was aggravated for hitting the line. A
carman does not like to make a mistake like that. You are particularly
cautious about mine cable and water line. I was aggravated before Mac
got over there.

Williamson alleges that upon arriving at the shuttle car Swiney shoved his finger in
Williamson’s face and that Swiney called him a “God damn dumb ass.” (Tr. 86-87, 88).
Williamson testified that Swiney retreated as Williamson exited the shuttle car toward Swiney.
Williamson testified, “I told him that he was going to quit his god damn dogging on me. That
he’d been dogging me for two fucking weeks and I was tired of it and it’s going to fucking stop
now was my basic words to him.” (Tr. 91, 93)

Swiney alleges that as Williamson jumped out of the shuttle car, Williamson pushed him
in the chest causing him to stumble backwards to within three to four feet from the rib.
Williamson denies shoving Swiney. Immediately after their confrontation, Swiney telephoned
shift foreman Danny Conn to meet him and Williamson at the end of the track so that
Williamson could be escorted out of the mine. Swiney and Williamson used a man trip to travel
to meet Conn. When Conn arrived he could see that both Swiney and Williamson were upset.
Williamson denied Swiney’s claim that he had been pushed.

When Conn and Williamson reached the surface, Williamson asked Conn if he was terminated. Conn told Williamson to return to the mine the next day to speak to Mine Superintendent Frank Smith. Williamson did not tell Conn about his alleged history of ventilation complaints because he didn’t believe that was “the issue . . . at that particular
moment.” (Tr. 178).

At the end of the shift, Swiney completed an employee disciplinary report which stated
that “Lige cut miner cable and water line with S/C Mac talked to him and he got off S/C and
pushed Mac against rib.” This report was co-signed by Frank Smith. (Resp. Ex. 2; Tr. 283).

Swiney also wrote a contemporaneous hand written statement to Frank Smith dated May 15, 2009, stating:

Lige cut miner cable and water line I told him if he had raised his
boom he wouldn’t have cut it. He jumped out of his car and started
pushing me around and said that I had been on his case for 2 or 3
days. I called out and told Danny Conn to come inside and get
him. If you want him to work, I don’t need him, put him
somewhere else.

(Resp. Ex. 1).

Thursday, May 14, 2009, Williamson returned to the mine to discuss with Smith the
incident that had occurred on the previous night. Based on the information that had previously
been provided to Smith by Swiney, Smith informed Williamson that he was being suspended for
three days with intent. Williamson understood that to mean that he was being terminated.
Williamson asked for a termination slip, but was not given one before he left the mine.

Smith forwarded a request to terminate Williamson to Jack Holbrook, CAM Mining’s
general manager. Holbrook signed the termination notice on May 15, 2009, citing
insubordination as the basis for the discharge. (Gov. Ex. 7). Prior to his termination,
Williamson did not inform Conn or Smith that he had complained to Swiney about ventilation,
or, that Swiney had called him an “asshole.” (Tr. 182-183).

On Friday evening, May 15, 2009, Williamson telephoned Smith at home. Williamson
told Smith that if he had something to say to him he should “[have] the balls to tell him face to
face.” (Tr. 185). Williamson also told Smith that any rumor that Williamson had complained to
MSHA inspectors was not true. (Tr. 195). The termination notice, sent to Williamson by
certified mail, was received on Saturday, May 16, 2009.

III. Procedural Framework

Unlike a trial on the merits in a discrimination complaint brought by the Secretary where
the Secretary bears the burden of proof by the preponderance of the evidence, the scope of this
temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act as well
as Commission Rule 44(c), 29 C.F.R. § 2700.44(c), limit the issue in an application for
temporary reinstatement to whether the subject discrimination complaint has been

“frivolously brought.” Rule 44(c) provides:

The scope of a hearing on an application for temporary reinstatement is limited to a
determination by the Judge as to whether the miner's complaint is frivolously brought.
The burden of proof shall be upon the Secretary to establish that the complaint is not
frivolously brought. In support of [her] application for temporary reinstatement the
Secretary may limit [her] presentation to the testimony of the complainant. The
respondent shall have an opportunity to cross-examine any witnesses called by the
Secretary and may present testimony and documentary evidence in support of its position
that the complaint is frivolously brought.

In its decision in Jim Walter Resources, Inc., v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),
the Court noted the “frivolously brought” standard is entirely different from the scrutiny
applicable to a trial on the merits of the underlying discrimination complaint. In this regard, the Court stated:

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.’

920 F.2d at 747 (emphasis in original) (citations omitted).

While the Secretary is not required to present a prima facie case of discrimination to
prevail in a temporary reinstatement proceeding, it is helpful to review the elements of a
discrimination claim to determine if the evidence at this stage satisfies the “not frivolously
brought” standard. As a general proposition, to demonstrate a prima facie case of discrimination
under section 105(c) of the Mine Act, the Secretary must establish that the complainant
participated in safety related activity protected by the Act, and, that the adverse action
complained of was motivated, in some part, by that protected activity. See Secretary on behalf of
David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(Apr. 1981).

IV. Disposition

As a threshold matter, the evidence in this preliminary temporary reinstatement
proceeding must be viewed in a light most favorable to the complainant because it is not the
judge’s duty to resolve conflicts in testimony at this preliminary stage of the proceedings.
Secretary o/b/o Earl Charles Albu v. Chicopee Coal Company, Inc., 21 FMSHRC 717, 719 (July 1999). Thus, we start with the proposition, for the purposes of this matter, that Williamson
communicated a good faith ventilation complaint to Swiney on April 20, 2009.

Thus, assuming that Williamson engaged in protective activity on April 20, 2009, we must determine whether there is reasonable cause to believe that Williamson’s May 15, 2009,
termination was motivated, at least in part, by that protected activity. As a threshold matter, there
is no evidence that any significant retaliatory action was taken by CAM mining in response to
Williamson’s alleged complaint. Even if Swiney responded to Williamson’s alleged complaint
by calling him an “asshole,” there is no evidence that Swiney had any retaliatory intent. In this
regard, Williamson has admitted, “I’m not going to say [Swiney] particularly made me do things
outside my job title.” (Tr. 40). On the contrary, Williamson was given lighter shuttle car duty
after his alleged complaint. Similarly, given the absence of any retaliation prior to the May 13
incident with Swiney, there is no evidence that CAM mining believed Williamson had
complained to MSHA about ventilation issues. (Tr. 127).

Moreover, Williamson admits he never reported any concerns of disparate treatment by
Swiney to any CAM Mining official. It is only after he was terminated that Williamson now claims his reported protected activity was a material factor in his job loss. Significantly,
Williams testified he did not tell Conn about his alleged history of complaining about ventilation
to Swiney because he did not believe that was “the issue . . . at that particular moment.” (Tr. 178). Williamson also did not report his alleged ventilation complaint during his May 14, 2009, meeting with Smith when Williamson was advised he was being “suspended with intent.”

Throughout this proceeding, the Secretary has treated the May 13, 2009, confrontation as
a trivial event. It is not mentioned in Williamson’s initial safety complaint filed with MSHA on
May 29, 2009, wherein Williamson avers that he “was discharged for making a safety
complaint.” (Gov. Ex. 1). In addition, the May 13, 2009, incident is not referred to in the
Secretary’s Application for Temporary Reinstatement, nor in the affidavit by MSHA Special
Investigator Alan Howell filed in support of the Secretary’s application. Rather, when distilled to
its core, the Secretary’s case is, in essence, that CAM Mining was lying in wait after Williamson
engaged in protected activity on April 20, 2009, until it was fortuitously rewarded by
Williamson’s May 13, 2009, confrontation with Swiney, with no evidence of intervening
retaliatory action. In other words, the Secretary argues that Williamson’s May 15, 2009,
termination for insubordination is a subterfuge for Williamson’s protected activity, despite no
evidence that Conn, Smith or Holbrook, knew about Williamson’s alleged complaint, or,

that Williamson was the victim of retaliation during the interim period from April 20 until his May 13, 2009, misconduct.

To determine if the evidence as presented by the Secretary reflects the subject
discrimination complaint has not been frivolously brought, we examine the events of May 13, 2009. Williamson concedes he was upset with himself for striking the water line and
power cable with the shuttle car. Although there is no evidence that Williamson intended to hurt
Swiney, it is apparent that Swiney’s criticism was not well received. Even if physical contact did
not occur, the accounts of both Swiney and Williamson support the fact that there was a serious
verbal confrontation. In fact, Williamson admits he, in effect, threatened Swiney when he

told Swiney he was tired of Swiney “dogging” him and “ it’s going to fucking stop now.” (Tr. 91, 93). Williamson also recognized that he could be fired for “cussing” his foreman. (Tr. 92). Although profanity and expressions of aggression may be excused when they are uttered by a complainant who is provoked by a mine operator’s response to his protected activity,
obviously severing a water line and damaging a trailing cable are not activities protected by the Mine Act. Sec’y o/b/o Bernardyn v. Reading Anthracite Co., 22 FMSHRC 298, 305-07
(Mar. 2000) (excusing behavior that occurs in response to a mine operator’s wrongful
provocation). Consequently, there are no mitigating circumstances to excuse Williamson’s
aggressive response to Swiney’s criticism. Thus, even a superficial analysis of the evidence
presented by the Secretary clearly reflects that, when Williamson threatened 66 year old Swiney,
he did so at the risk of his termination.

As a final matter, the Secretary apparently now concedes the May 13, 2009, incident at
least justified CAM Mining’s suspension of Williamson.

However, she argues, in effect, that
termination was unjustifiably harsh and motivated by Williamson’s earlier ventilation complaint.
Having conceded that suspension for Williamson’s insubordination was warranted, the Secretary
has abandoned any claim that her application for temporary reinstatement is not frivolous.
Whether a miner is suspended or terminated for insubordination is within a mine operator’s
discretion, absent a showing that the discipline is disproportionate to the misconduct and
motivated by discriminatory intent. The Secretary’s disparate treatment claim, based on the
assertion that other CAM Mining employees have been suspended rather than terminated for past
instances of misconduct, is unavailing. Past instances of suspension for misconduct do not
preclude future terminations for just cause.

In the final analysis, the “Commission does not sit as a super grievance board to judge the
industrial merits, fairness, reasonableness, or wisdom of an operator’s employment policies
except insofar as those policies may conflict with rights granted under section 105(c) of the Act.”
Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (citations omitted). Rather, Commission judges must “analyze the merits of a mine operator’s alleged business
justification for the challenged adverse action.” Sec’y of Labor o/b/o Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).

In this preliminary proceeding, the issue to be resolved is the merits of the Secretary’s
assertion that CAM Mining’s justification for Williamson’s termination is an implausible attempt to hide its discriminatory motive. It is undisputed that Williamson’s May 13, 2009,
confrontation constituted insubordination. Company written policy reflects that insubordination
is grounds for dismissal. (Resp. Ex. 3). The Secretary’s contention that CAM Mining was also
motivated by Williamson’s earlier protected activity is frivolous because it is based only on
speculation.

Viewing the evidence in a light most favorable for the Secretary, the Secretary has failed
to satisfy her burden of demonstrating there is a reasonable cause to believe Williamson’s
reported protected activity played any role in his May 15, 2009, termination. Consequently, this
case does not appear to have merit and is therefore frivolously brought.

ORDER

Accordingly, IT IS ORDERED that the Secretary’s application for the temporary
reinstatement of Lige Williamson IS DENIED. Consequently, IT IS FURTHER ORDERED
that this temporary reinstatement proceeding IS DISMISSED.

Jerold Feldman

Administrative Law Judge

Distribution: (Certified Mail and Facsimile)

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,

Charleston, WV 25321

/rps