Lawrence Pendley v. Highland Mining Co. and James Creighton

Plain-English summary

Lawrence Pendley alleged that Highland Mining and employee James Creighton interfered with his duties as a miners' representative. Judge Kenneth R. Andrews found that Creighton's repeated confrontational conduct near Pendley and MSHA inspectors reasonably tended to interfere with Pendley's walk-around rights. He also found that mine management failed to restrain the conduct, withheld examination and emergency-response materials, and treated Pendley as a suspected source of confidential safety complaints. Taken together, those actions violated the Mine Act's protection against interference with miners' representative rights. The judge ordered the parties to confer on relief and retained jurisdiction, so this decision established liability but did not finalize remedies or penalties.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(f), 813(g), and 815(c)(1)
• Outcome: Highland Mining and James Creighton were found liable for interference, with remedies and monetary amounts reserved for later orders.
• Key point: An operator may be liable when coworker intimidation and management's withholding of safety information collectively tend to interfere with a miners' representative's protected duties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

LAWRENCE
PENDLEY,

Complainant,

v.

HIGHLAND
MINING CO. AND JAMES CREIGHTON,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. KENT 2013-606-D

MSHA
Case No.: MADI-CD 2010-07 & 11

Mine:
Highland 9 Mine

Mine
ID: 15-02709

DECISION

Appearances:               Tony
Oppegard, Esq., Lexington, KY, Representing the Complainant

Wes
Addington, Esq., Appalachian Citizens Law Center, Representing the Complainant

Melanie J. Kilpatrick, Esq., Rajkovich,
Williams, Kilpatrick & True PLLC, Lexington, KY, Representing the
Respondent

Before:                                   Judge
Andrews                                  

This case is before me upon
a complaint of discrimination brought by Lawrence Pendley (“Complainant”), a
miner, against Highland Mining Co. and James Creighton, (“Respondents”),
pursuant to § 105(c)(3) of the Federal Mine Safety and Health Act of 1977
(“Mine Act”), 30 U.S.C. § 815(c)(3).

Pendley filed his original
discrimination complaints with the Mine Safety and Health Administration (MSHA)
on February 25, 2010 and March 25, 2010. RX-2; RX-3.[1]
Pendley alleged that he was being interfered with in performing his duties as a
miners’ representative by Jack Creighton. CX-1; CX-2. After conducting an
investigation, MSHA filed a §105(c)(2)

complaint on Pendley’s behalf on
December 2, 2010.[2] On February 3, 2011, the
case was stayed pending the outcome of remand ordered by the Sixth Circuit
Court of Appeals and the Commission in Docket No. KENT 2007-383. On December
27, 2012, Judge Barbour’s Decision on Remand dismissed all claims of
discrimination pending in Docket No. KENT 2007-383. Based on Judge Barbour’s
decision, the Secretary filed a Motion to Dismiss Docket No. KENT 2011-337-DM
on February 21, 2013, stating that the “pattern of discrimination that served
as a basis for the Complaint filed in this matter no longer exists.” An Order
dismissing KENT 2011-337-DM was issued on February 26, 2013.

Pendley, through counsel,
filed the instant complaint of discrimination under §105(c)(3) of the Act on
March 22, 2013. A hearing was held in Henderson, Kentucky, on April 17, 2014, at
which the parties presented testimony and documentary evidence. After the
hearing, the parties submitted Post Hearing Briefs, which have been fully
considered.

STIPULATIONS

The Complainant stipulated
to the following: At the time that Lawrence Pendley filed his complaint to MSHA
in this matter, February 25, 2010 and March 25, 2010, he was designated as a
miners’ representative at Highland’s No. 9 Mine. Complainant Pre-Hearing
Report, 2.

The Respondent stipulated to
the following:

1.                 
Highland is
subject to the Federal Mine Safety & Health Act of 1977.

2.                 
Highland
mines and produces coal at the Highland No. 9 Mine that enters into and has an
effect upon interstate commerce within the meaning of the Federal Mine Safety
& Health Act of 1977.

3.                 
Highland is
subject to the jurisdiction of the Federal Mine Safety & Health Review Commission
and the Administrative Law Judge has the authority to hear this case and issue
a decision.

FINDINGS OF FACT AND CONCLUSIONS
OF LAW

The findings of
fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have taken into consideration the interests of the witnesses, or lack
thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each
witness, I have also relied on his demeanor. Any failure to provide detail as
to each witness’s testimony is not to be deemed a failure on my part to have
fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000)(administrative law judge is not required to
discuss all evidence and failure to cite specific evidence does not mean it was
not considered).

Lawrence Pendley
had been a coal miner for 31 years at the time of hearing. Tr. 14.[3]
He worked at Highland No. 9 as a parts runner, until he was suspended and
discharged in 2007 after an altercation with Jack Creighton. Tr. 14, 55-57;
RX-7. Pendley filed several discrimination complaints associated with the
discharge and predicate suspension, and Judge Barbour found that the suspension
was discriminatory, but the discharge was not.[4]
Tr. 15.

Pendley became a
miners’ representative in 2009 after several miners requested that he serve in that
role. Tr. 15-16. He remained a miners’ representative at the time of hearing.
Tr. 52. As a miners’ representative, Pendley was entitled to review examination
books; however, on two occasions, people interfered with him doing so. Tr. 17. In
the first instance, a Highland manager named Jack Willingham took the books
from Pendley in the recording office because he did not think that Pendley had
a right to view them. Tr. 17; Dep. 56. In the second instance, Scott Maynard,
who worked in safety for Highland, took materials from Pendley as he was
viewing them. Tr. 17-18, 28. Pendley complained to MSHA about these incidents in
August 2009. Tr. 18. MSHA subsequently had a meeting with Highland and sent
letters stating that if any more interference took place, action would be
taken. Tr. 18. The August 18, 2009 letter from MSHA informed Highland that neither
Highland nor any of its agents may interfere with Pendley’s viewing of
examination books. Dep. 56; CX-4. Larry Millburg, the superintendent of operations
at Highland No. 9 mine, testified in deposition that he agreed that not
allowing a miners’ representative to view examination books would constitute
interference.[5]
Dep. 57.

Furthermore,
Pendley testified that Creighton interfered with his duties on several
occasions, often by standing close to him and trying to intimidate him. Tr.
16-17. Pendley felt that mine management was permitting Creighton to behave in
this way. Tr. 17. Millburg testified that neither he nor anyone else encouraged
interference with Pendley’s rights. Dep. 26-27.

The first
incident with Creighton occurred in February, 2010, when Pendley and MSHA
inspector Jeff Winter came out of the records book room and into the common
area. Tr. 19. At the time, Creighton was working as a supply man, and part of
his duties was to clean the common area.[6]
Tr. 21. Creighton was in an area in the back of the room when he yelled out,
“hey there,” which Pendley believed was directed at him. Tr. 19, 36. Pendley
believed Creighton’s statement was a provocation, rather than a greeting. Tr.
19-20.

According to
Creighton, he was sitting in the last table in the commons area when the phone
rang. Tr. 76. Creighton answered the phone and someone told him that there were
parts for him to pick up. Tr. 76. Creighton admitted that he may have yelled
out “hey there,” but testified that it would have been part of him yelling,
“hey I got me a nibble,” in reference to getting a call from the supply house.
Tr. 79. He testified that the comment was not directed at anyone. Tr. 79.

After this
incident, Pendley and Winter walked over to the edge of the room and stopped
for a moment. Tr. 20. Creighton walked over and stood in close proximity to
them for approximately 15-40 seconds before moving on. [7]
Tr. 20, 25, 77. Creighton grew up with Winter and had been friends with him for
a long time. Dep. 27-29. Creighton said to Winter, “How’s it going Jeff? Where
did you go today?” Winter told Creighton where he went and Creighton asked how
it looked in that area. Tr. 77. Creighton testified that he was three to four
feet from Winter when he stopped to talk to him. Tr. 86. He also said that he
was facing Winter. Tr. 86. Creighton described the conversation he had with
Winter as “chit chat.” Tr. 116-118. Pendley testified that he did not believe
that Creighton had a reason to stand where he was. Tr. 20.

Creighton
testified that he did not say anything to Pendley when he spoke with Winter.
Tr. 79. Pendley did not say anything to Creighton because he had been advised
by mine management and Carolyn James at MSHA not to be around Creighton. Tr.

21. Creighton testified that he did nothing to harass Pendley or interfere with
    his activities as a miners’ representative. Tr. 87. Creighton had been shown a
    letter from the District Manager that articulated Pendley’s walk-around rights,
    and was told to avoid Pendley when possible. Tr. 120-124; CX-4.

Pendley brought
this incident to Winter’s attention, and Winter told Pendley to ignore
Creighton. Tr. 22. Pendley proceeded to file a complaint with MSHA over this incident.
Tr. 22. After hearing that Pendley filed a complaint against him, Creighton
asked Inspector Winter what he did wrong. Tr. 88. According to Creighton,
Winter replied, “Jack I didn’t say you did anything wrong.” Tr. 90.

Creighton also
talked about the complaint with Larry Millburg, Highland’s superintendent of
operations at the mine at the time. Tr. 90. Millburg had been aware of the
conflict between Creighton and Pendley. Dep. 44. Millburg testified that he
received the May 5, 2009 letter from MSHA making him aware that Pendley was a
miners’ representative. Dep. 16-17; RX-1. At that time, a notice that Pendley
was a miners’ representative was posted on a bulletin board in the hallway.
Dep. 24. Millburg had previously talked to Creighton about Pendley being a
miners’ representative. Dep. 25. Millburg testified that prior to receiving the
August 18, 2009 letter from MSHA, he was not aware that anyone from Highland
was interfering with Pendley’s rights as a miners’ representative. Dep. 26;
RX-4.

After talking
with Creighton, Millburg did not believe that Creighton had interfered with
Pendley’s rights as a miners’ representative. Dep. 29. Millburg discussed the
events with Creighton and Winter to see if Creighton’s account was accurate.
Dep. 27. Millburg did not believe that the letters to Pendley and Creighton
prohibited contact. Dep. 36-37; RX-6, 7. Millburg never told Creighton or
Pendley that they could not be in the same room or have any contact. Dep. 37. Millburg
testified that he told Creighton that if it was at all possible he should stay
away from Pendley while Pendley was on the mine property. Dep. 37-38.

Creighton asked
Millburg if he could retrieve the security camera footage from the time of the
incident on February 22, 2010. Tr. 90-91; RX-8. There had been cameras set up
in the hallways, so Millburg had Ronnie Weiss find the video.[8] Dep. 30-31. After viewing
the video, Millburg determined that it corroborated Creighton’s account. Dep.

32. He stated that Creighton was beside Pendley, standing approximately three
    feet away. Dep. 32-33. Creighton testified that after reviewing the video,
    Millburg told him that “I saw nothing going on. I saw no harassment, no cause
    for a case to be filed.” Tr. 96.

Millburg
testified that he could not have prevented Creighton from speaking to Winter
because it was Creighton’s right as a miner to speak to an MSHA inspector. Dep.
33-34. Millburg did not see any problem with Creighton’s conduct. Dep. 34.

In Creighton’s
deposition, which took place 21 days before hearing, he stated that after the
February complaint, no one from Highland management talked to him about the
incident. Tr. 110, 113. At hearing, Creighton stated that the reason he said
this, despite the fact that he testified that he spoke with Millburg after the
February incident, is because he went to talk with Millburg, rather than
Millburg coming and talking with him. Tr. 110-111. Creighton then stated that
during the deposition, he could not recall talking with Millburg or watching the
video with him. Tr. 113.

The second
incident with Creighton occurred in March, 2010, in approximately the same
location as the February 2010 incident. Tr. 22, 102. It occurred when Pendley
was traveling with MSHA Inspector Archie Coburn during a quarterly closeout.
[9] Tr. 22. When
Pendley and Coburn entered the common room, Creighton yelled across the room to
Pendley, “I’m going to file a harassment case against you.” Tr. 23. At hearing,
Creighton testified that he was approximately 20-25 feet from Pendley when he
yelled to Fenwick. Tr. 129. However, in the deposition, Creighton stated that
he was approximately 5-10 feet from Pendley. Tr. 131.

Then, a little
later, Creighton walked over to within a foot of Pendley and stood there for
approximately 30 seconds to one minute. Tr. 23-25. Pendley testified that there
was no reason for Creighton to walk up to him, and that he understood the move
to be a form of intimidation and harassment. Tr. 24-25. Pendley mentioned his
concern to Coburn and Coburn told him not to pay any attention to it. Tr. 25. Pendley
subsequently filed a discrimination complaint with MSHA over the incident. Tr.
26.

Creighton
testified that he arrived at the mine at 6:30 or 7:00 am on the day of the
second incident, and soon after a miner named Chad Fenwick became upset with
him because Creighton had not yet made any sweet tea. Tr. 102. Creighton told
Fenwick “to get the hell out of there before I filed a case on him.”[10] Tr. 102. Then
Creighton proceeded to make Fenwick the sweet tea, and Fenwick left. Tr.
102-103. Creighton never filed a harassment charge against Fenwick. Tr.
127-128, 133. Creighton denied that he said anything to Pendley, stared at
Pendley, touched Pendley, or made any gestures at Pendley on March 25. Tr.
106-107.

On April 14,
2010, Creighton filed a harassment charge against Pendley. Tr. 26, 127-128,

133. In his statement to MSHA, Creighton said he felt that he was being
     harassed, threatened, and discriminated against. Tr. 136. Creighton accused
     Pendley of positioning himself so that he would have contact with Creighton,
     and said that he felt threatened and feared for his safety while Pendley was on
     mine property. Tr. 137-139. Further, he demanded that Pendley be removed as a
     miners’ representative. Tr. 136.

After Creighton
received Pendley’s March complaint, he discussed it with superintendent Millburg.
Tr. 107-108. Millburg did not witness the events that Pendley described in his
March 2014 complaint, but Millburg did not believe that Creighton’s conduct constituted
harassment or interference. Dep. 38-39. Millburg talked to Creighton after the
March incident. Dep. 40. Creighton told Millburg that he was doing his job and
then walking past Pendley. Dep. 40-41. Millburg told Creighton to stay away
from Pendley if possible. Dep. 40-41.

In addition to
the encounters with Creighton, Pendley also alleged discrimination by Highland
management concerning a belief that he was making complaints to MSHA and in
regards to sharing information with him. On September 9, 2009, Safety Manager
James Allen sent an email to a group of Highland management stating that
Pendley was making §103(g) complaints. Dep. 62. The recipients to the email
included Frank Foster (corporate safety), Scott Maynard (superintendent of
Highland 9), Randy Duncan (Safety Supervisor at Highland 9), Travis Little
(Safety Supervisor), Jack Willingham (Safety Supervisor), and J.R. Wolfe
(Training Supervisor). Dep. 59-61.

In another
email, David West asked James Allen how changes in the Emergency Response Plan
(ERP) were being communicated to the miners’ representatives at Highland. Dep.

64. At deposition, Millburg agreed that changes to the ERP must be communicated
    to the miners’ representatives. Dep. 65. Allen responded that they would not
    post a complete ERP plan for Pendley to review, and followed up the statement
    with three exclamation points. Dep. 66; Dep-CX-6.

CONTENTIONS OF THE PARTIES

Following the
hearing, the Complainant and Respondent submitted briefs and reply briefs in
support of their respective positions. The Respondent argued that no Commission
case has addressed the issue of co-worker harassment, rather than harassment by
management, and that the Commission should use other federal
anti-discrimination laws as guides. Accordingly, Respondent suggested that this
Court follow a five-step analysis to determine if such discrimination is
actionable: (1) that the individual engaged in protected activity; (2) that he
was subject to harassment; (3) that the harassment was based on the protected
activity; (4) that the harassment unreasonably interfered with his performance
as a miners’ representative and objectively created a hostile environment; and
(5) that the operator knew or should have known of the alleged harassment and
failed to implement prompt and appropriate corrective action. Respondent argued
that Complainant should prevail only if he can meet each of these elements. Resp.
Post-Hearing Br. 4.  

The Respondent
conceded that Pendley engaged in protected activity in the past, but argued
that Pendley’s claim fails on all other elements of the prima facie test
that it suggested the Commission adopt. Resp. Post-Hearing Br. 5. The
Respondent argued that Pendley failed to establish that the harassment rose to
a level that was both subjectively and objectively hostile and abusive. Respondent
next argued that Pendley failed to prove that Creighton’s harassment was based
on activity protected under the Act, specifically Pendley’s rights as a miners’
representative. Resp. Post-Hearing Br. 7. Respondent contended that it
was more likely that Creighton’s actions towards Pendley were based on their
history of mutual animosity rather than on Pendley’s protected activity. Resp.
Post-Hearing Br. 8-9.

Respondent
further argued that even if Creighton harassed Pendley, there was no actionable
discrimination because Highland responded appropriately and reasonably to
Pendley’s complaints. Resp. Post-Hearing Br. 9-11. Millburg told
Creighton not to interfere with Pendley’s duties as a miners’ representative
and to avoid him when possible. Millburg determined that Creighton had not
violated company rules in his interactions with Pendley, so it was proper not
to discipline Creighton. Furthermore, the Respondent argued that Highland was
not permitted to limit Creighton’s abilities to speak to an MSHA inspector, so
it could not instruct him against approaching the inspector while Pendley was
around. Resp. Post-Hearing Br. 13-14.

Furthermore, the
Respondent argued that §103(f) provides that a miners’ representative has the
right to accompany an inspector only during the physical inspection of the mine
or participate in a pre- or post-inspection conference. To the extent that
Pendley was not accompanying the inspector at the time of the alleged
harassment, the Respondent argued that he was not engaged in protected
activity. Resp. Post-Hearing Br. 3.

In its
Post-Hearing Brief, the Complainant argued that the Commission has established
a different framework from the standard Pasula-Robinette analysis for
determining whether conduct constitutes interference under §105(c). Sec’y of
Labor on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan.
2005). Rather than having to find protected activity, adverse action, and a
nexus between the two using various indicia, the interference analysis is based
on §8(a)(1) of the National Labor Relations Act. The Complainant argued that
under this analysis, the judge must only find that the Complainant engaged in
protected activity and that the operator engaged in conduct that would tend to
interfere with such protected rights. Comp. Post-Hearing Br. 14-16.

The Complainant
argued that the following actions performed by Pendley constituted protected activities
under §105(c): Pendley performing his duties as a miners’ representative from
June 2009 through April 2010; Pendley’s complaints to MSHA regarding
Creighton’s and the Highland’s alleged harassment that led to the August 18,
2009 letter; Pendley’s review of mine examination books; and Pendley’s §105(c)
complaints in February and March 2010, which led to the instant proceeding. Furthermore,
Highland’s belief that Pendley was making §103(g) complaints to MSHA after
reviewing the mine examination books was protected activity that was imputed to
Pendley, regardless of whether he actually made the complaints. The Complainant
further argued that Creighton’s harassment of Pendley, and the company’s tacit
approval of Creighton’s conduct, tended to interfere with Pendley’s rights as a
representative of miners. Comp. Post-Hearing Br. 16-19.

In response to
this position, the Respondent contended that the cases cited by Complainant
involved a supervisor’s conduct, rather than a coworker’s, and that there was
nothing in the instant case to impute Creighton’s actions to management. Resp.
Response Brief at 5-7. Furthermore, as opposed to the cases cited by
Complainant, Pendley was neither fired nor threatened with economic
repercussions. Id. The Respondent also argued that the Commission’s
concerns over chilling speech are inapplicable here because Pendley did not
receive any remuneration for his position as a miners’ representative. Id.
at 8.  Finally, the Respondent argued that insofar as Creighton’s conduct was
based on personal animosity or on any other response to non-protected activity,
Pendley’s interference claim must fail.

The Complainant
responded that Pendley’s argument is not as atypical or unique as Respondent
asserted. Numerous cases have considered complaints by non-employee miners’
representatives, which are specifically protected under 105(c), and numerous
cases have been directed toward an individual respondent. Pendley Reply
Brief, 4-6. Furthermore, Complainant argues that the Respondent’s argument
that Pendley and the investigator were not engaged in an inspection or in a pre-
or post-inspection conference at the precise moment of the alleged conduct is
an absurd and unsupported reading of the Mine Act. Id. At 6-7.

ANALYSIS

This case is
before me on allegations that the Respondent interfered with Pendley’s rights
as a miners’ representative in violation of §105(c). The provision states:

No person shall discharge or in any
manner discriminate against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator’s agent, or
the representative of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical
evaluations and potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners or applicant for
employment has instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners
or applicant for employment on behalf of himself or others of any statutory
right afforded by this Act.

30 U.S.C. 815(c)(1).

The Act prohibits both
discrimination because of protected activity and interference with the exercise
of statutory rights. Most cases before the Commission are of the former, and
follow the Pasula-Robinette framework, wherein the Claimant presents a prima
facie case by showing that he or she engaged in protected activity, that
there was an adverse action, and that the adverse action was motivated in any
part by that activity. See Turner v. Nat 7 Cement Co. of
California, 33 FMSHRC 1059, 1064 (May 2011); Sec'y of Labor on
behalf of Pasula v. Consol Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980), rev'd on other grounds 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 five-step
analysis proposed by Respondent is unnecessary, as the Commission has already
developed various tests to determine whether unlawful discrimination or
interference has taken place, noting that “in addition to the broad protections
offered against adverse actions, the scope of miner rights protected by the Act
is equally broad.” Gray v. North Star Mining, Inc., 27 FMSHRC 1, 7 (Jan.
2005). The Act’s legislative history makes clear that it protects miners against
“not only the common forms of discrimination, such as discharge, suspension,
demotion…, but also against the more subtle forms of interference, such as
promises of benefits or threats of reprisals.” S. Rep. 95-191, 95th Cong., 1st
Sess. 36 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624 (1978). In Moses v.
Whitley Development Corp., the Commission found that “more subtle forms of
interference” includes “coercive interrogation and harassment over the exercise
of protected rights.” 4 FMSHRC 1475, 1478 (Aug. 1982). The Commission
explained,

A natural result of such practices
may be to instill in the minds of employees fear of reprisal or discrimination.
Such actions may not only chill the exercise of protected rights by the
directly affected miners, but may also cause other miners, who wish to avoid
similar treatment, to refrain from asserting their rights. This result is at
odds with the goal of encouraging miner participation in enforcement of the
Mine Act. We therefore conclude that coercive interrogation and harassment over
the exercise of protected rights is prohibited by section 105(c)(1) of the Mine
Act.

Id. at 1479.

The Commission
developed the test for interference by looking to Section 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. §158(a)(1), “which makes it unlawful
for an employer to ‘interfere with, restrain, or coerce’ an employee’s
protected rights. Gray, 27 FMSHRC at 9. The Commission quoted
approvingly from NLRB caselaw, which holds that the issue “does not turn on the
employer’s motive or on whether the coercion succeeded or failed. The test is
whether the employer engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights under the [NLRA].” Id.,
quoting American Freightways Co., 124 NLRB 146, 147 (1959). The
Commission made clear that the judge should take into consideration the
totality of the circumstances in determining whether there was unlawful
interference. Id. at 10-12. In Gray, the Commission considered such
factors as “the persistence with which the subject of the miner’s protected
activity was raised and “the accusatory manner in which it was done.” Id.
at 11 (quoting trial court judge). Furthermore, it stated that other factors
must be taken into account, such as “where the statements were made,” “the
nature of [the] relationship,” and the manner in which statements were made. Id.

Building upon
its prior precedent in Gray and Moses, the Commission recently
provided a helpful clarification of the elements of an interference violation. According
to this test, an interference violation occurs if:

1)                 
A
person’s action can be reasonably viewed, from the perspective of members of
the protected class and under the totality of the circumstances, as tending to
interfere with the exercise of protected rights, and

2)                 
The
person fails to justify the action with a legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights.

United Mine Workers of America
obo Mark A. Franks and Ronald M. Hoy v. Emerald Coal Resources, LP, 36 FMSHRC
2088, 2108 (Aug. 2014). The Commission stated in no uncertain terms that “for
the miners to prevail on their interference claim, proof of the operator’s
intent to interfere with the miner’s statutory rights is not required.” Id.
at 2112-2113. Viewing the totality of the circumstances in the instant case, I
find that Pendley’s rights as a miners’ representative were interfered with in
violation of Section 105(c).

Section 103(f)
of the Mine Act provides miners’ representatives the “opportunity to accompany
the Secretary or his authorized representative during the physical inspection
of any coal or other mine made pursuant to the provisions of subsection (a) of
this section, for the purpose of aiding such inspection and to participate in
pre- or post-inspection conferences held at the mine.”[11] 30 U.S.C.A. § 813(f). In
addition to these walk-around rights and pre- and post-inspection conference
rights, miners’ representatives are also provided notice rights and the right
to make safety complaints. The legislative history of the Mine Act viewed the
miners’ representative as serving an important function in ensuring the safety
and accountability at mines.[12]

In the instant
case, Pendley faced interference with his walk-around rights, his right to examine
books, and his right to make safety complaints. Each of these will be examined
separately. However, taken together, these actions constituted interference of
Pendley’s rights as a miners’ representative in violation of the Mine Act.

The Respondent Creighton
interfered with Pendley’s walk-around rights when he repeatedly conducted
himself in a manner that Pendley understood as intimidation. The Commission’s
test requires that the action be “reasonably viewed…under the totality of the
circumstances.” In this instance, Pendley and Creighton’s multi-year feud,
which resulted in numerous judicial decisions and Pendley’s termination, is
important to contextualizing the conduct.

In his December
27, 2012 Decision, Judge Barbour began by noting that “this discrimination
proceeding has a long and tortured history.”[13]
Sec'y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 3406
(Dec. 27, 2012) (ALJ).[14]
Allegations of discrimination and conflicts with Creighton go as far back as
2005. Sec'y on behalf of Pendley v. Highland Mining Co., 30
FMSHRC 459 (May 19, 2008) (ALJ).[15]
In May 2005, Pendley complained to his supervisor after Creighton used “foul
language” in response to Pendley’s request for a delivery of food. Id.
at 462. During that same month, Pendley accused Creighton of opening his
bathhouse locker and pouring bleach on his clothing. Id. at 463. Creighton
denied the charge, but according to Pendley, he told fellow miners that Pendley
was “crying,” and “I’ll give you something to cry about.” Id. Subsequently,
dirt was swept intentionally in front of Pendley’s locker, and Pendley
similarly suspected Creighton of being the culprit. Id. 463-464.

Next, as Judge Barbour
found, came the “gun” incident. Creighton testified he knew Pendley had gone to
Creighton's supervisor and complained. “So” said Creighton, one day in the
bathhouse “after I heard [about] him complaining, I walked halfway back [to
Pendley's locker] … thr[ew] a piece of paper towel on the floor and told him
there is something to cry about … [and] that's when he reached up in his locker
in his hard hat and pulled out what I perceived to be a weapon.” Creighton
continued, “I told him … I [will] shove it down … [your] throat or make … [you]
eat it, something on that order.” Creighton maintained Pendley “started
mouthing” at him, but Creighton walked away. Id. at 464 (citations
omitted). Throughout 2005, matters continued to deteriorate between Pendley and
Creighton, with accusations that Creighton was inspiring harassment against
him. In one instance, Pendley accused Creighton of suddenly stopping the cars
while he was traveling into the mine, which resulted in Pendley going to the
hospital. Id. at 468-471.

The final
incident occurred in 2007, when a physical altercation occurred between Pendley
and his “long-time nemesis, Jack Creighton.” 34 FMSHRC at 3407. As a result of
this altercation, as well as a loud argument that Pendley had concerning his
overtime pay, Millburg made the decision to suspend and then terminate
Pendley’s employment. Id. Judge Barbour found that the suspension was
discriminatory, but that Respondent had a legitimate nondiscriminatory reason
for firing Pendley. Id.

Pendley became a
non-employee representative of miners in 2009, and it was in this capacity that
he experienced the instant discrimination. Tr. 15-16.

With regards to
the February and March 2010 incidents where Creighton stood beside Pendley or
yelled out threats to bring discrimination claims against him, I found much of
Creighton’s testimony to be incredible. Creighton’s testimony was filled with
ad hoc explanations that sounded more clever than true. A prime example of such
incredible testimony was Creighton’s attempt to reconcile his hearing testimony
with his deposition testimony, which took place three weeks prior, concerning
whether he talked with anyone in mine management about the February encounter
with Pendley. Tr. 110-113. At deposition, Creighton answered in the negative
when asked if anyone in mine management had talked to him about the incident,
however at hearing he testified that he spoke with Millburg. Id.
Creighton’s explanation for this contradictory testimony was that in deposition
he understood the question to be whether anyone from mine management talked to
him about the incident, not whether he talked to anyone from mine management
about the incident. Id. This tortured parsing of the parts of a conversation
to explain contradictory testimony defies credibility, and constitutes but one
instance of Creighton providing seemingly made up and self-serving excuses to
explain away his actions.

Pendley and
Creighton had been told to stay away from each other when possible. Tr.
120-124; CX-4. There may have been instances where run-ins between Pendley and
Creighton were necessary or unavoidable, but what occurred in February and
March 2010 were not such instances. According to Pendley’s credible testimony,
Pendley was exercising his walk-around rights by accompanying inspectors before,
during, and after an inspection. Tr. 19-20, 22-25.

During the
February inspection, Creighton yelled out “hey there” to Pendley as a
provocation. Tr. 19-20, 36. Creighton’s testimony that he was not yelling at
Pendley, but was instead yelling “hey there I got me a nibble” to no one in
particular in response to a phone call, defies belief and was not credible. Tr.

79. Following this outburst at Pendley, Creighton walked over to the edge of
    the room where Pendley and the inspector were standing and stood in close proximity
    to them for a period of 15-40 seconds in order to “chit chat” with the
    inspector. Tr. 20, 25, 77, 116-118. Based on their long history of conflict, it
    was reasonable for Pendley to see these actions as a provocation and an attempt
    to interfere with his rights as a miners’ representative. Pendley proceeded to
    complain to the inspector and filed a complaint with MSHA over the incident;
    however, mine management did nothing. Tr. 22.

Approximately
one month later, a similar encounter occurred. Pendley was accompanying an
inspector, and Creighton yelled at him from across the room, “I’m going to file
a harassment case against you.” Tr. 22-23. Creighton’s testimony that he was
not yelling at Pendley, but rather was yelling at another miner who was upset with
Creighton for not making sweet tea was not credible, especially in light of the
fact that Creighton filed a discrimination complaint against Pendley a few
weeks after the incident. Tr. 102, 26, 127-128. Creighton then proceeded to
walk over to within a foot of Pendley and stand there for approximately 30
seconds to one minute. Tr. 23-25. Pendley viewed Creighton’s conduct to be a
form of harassment meant to intimidate him. Tr. 24-25. Based on the history of
conflict that existed between Creighton and Pendley, along with the fact that
Pendley had just filed a complaint based on similar conduct, this view was
indeed reasonable.

Creighton has a
right under the Act to bring a discrimination complaint for actions that he
believes constitute discrimination. However, his yelling across the room that
he would be filing a complaint against Pendley appears more like a threat than
an exercise of his rights. This is further bolstered by the fact that in his
complaint Creighton demanded the removal of Pendley as a miners’
representative, which is a remedy beyond MSHA’s authority. Tr. 136. Despite the
long history of actual conflicts between these miners, it is quite telling that
at the time pertinent to this proceeding there is no credible evidence that
Pendley acted in any aggressive manner. He was not alone, but in the company of
an MSHA inspector while on mine property.

Despite
Millburg, who was a member of mine management, knowing about the problematic
history between Pendley and Creighton, he chose to do nothing. Tr. 110-111,
Dep. 40-41. Millburg testified at deposition that after talking with Creighton,
he did not believe that any interference had taken place. Dep. 29. Millburg
only viewed the videotape footage of the incident because Creighton asked him
to retrieve it. Tr. 90-91. Millburg testified that the footage corroborated
Creighton’s account, so there was no need for an investigation. Dep. 32-33. Upon
viewing the video footage submitted, I find that the footage has little
evidentiary value in proving or disproving interference on Creighton’s part.
The video, which has no sound and is shot from a high vantage point in the
hallway, merely shows Creighton walking up to two obscured figures who are
largely beyond view and talking at them for a period close to a minute. RX-8,
at minute 11:33-11:34. One cannot hear what was said, or see how Pendley
reacted. The video simply corroborates that the event happened—a fact not in
dispute—but does not help in determining the nature of the event. Id.
Millburg’s lack of action based on a conversation with Creighton and a viewing
of this video served as an allowance for Creighton to repeat his conduct.

Indeed, that the
event occurred reveals mine management’s failure to restrain Creighton’s
aggressive verbal and non-verbal behaviors. Creighton was only advised that he
“should” stay away from Pendley “if at all possible.” Considering Millburg’s
knowledge of the history of conflicts, this advice was a woefully inadequate
exercise of supervisory responsibility. Millburg did not tell Creighton and
Pendley they could not have contact. Hence, Creighton’s actions can be
imputed to Highland.

Respondent cites
Thurman v. Queen Anne Coal Co., 9 FMSHRC 526 (March 9, 1987) (ALJ) for
the proposition that the employer is not liable for acts of co-worker
harassment. However, Thurman is inapposite to the instant case. Thurman
was not an interference case, but rather a discrimination case. The judge
employed the Pasula-Robinette framework for analyzing the case, and
found that it failed on the adverse action prong. Id. at 529-531.
Furthermore, the judge found that the instances of harassment by Thurman’s
coworker, were not in any way related to the miner’s protected activity.

In the instant
case, Creighton’s conduct tended to interfere directly with Pendley’s walk-around
rights, which, as discussed supra, is a protected activity. Respondent’s
argument that the Act only protects miners’ representatives during the actual
inspection and during the exact moments of pre- or post-inspection conferences
is an unnecessarily narrow reading of the Act, which the Commission has
rejected previously. See Secretary of Labor, on behalf of Truex v.
Consolidation Coal Co., 8 FMSHRC 1293, 1299 (Sept. 25, 1986) (“Consol's
argument that the miners' section 103(f) rights, if any, arose when the
inspector arrived on mine property is not well taken on this record.”). Pendley
was accompanying the inspector during the general period of an inspection, and
as such was exercising his walk-around rights. If the Act permitted
interference immediately before or after an inspection, then the purpose of
§§103(f) and 105(c) would be nullified by providing legally sanctioned windows
when interference was allowable.

I need not find
that Creighton’s conduct alone constituted interference in this case, because
there were other acts or omissions by mine management, which combined with
Creighton’s conduct, constituted interference.

In addition to
Creighton’s conduct, mine management illustrated a pattern of attempting to
hide information from Pendley that, as a miners’ representative, he was
permitted to access. Pendley complained to MSHA in August, 2009 about two
incidents where materials he was viewing were taken from him. Tr. 18. In the
first incident, a manager named Jack Willingham took examination books from
Pendley while he was reading them in the recording office, an act which
Millburg admitted constituted interference with Pendley’s rights. Tr. 17; Dep.

57. In the second incident, an individual from safety named Scott Maynard took
    materials from Pendley as he was viewing them. Tr. 17-18, 28.

Furthermore,
Highland was required to inform miners’ representatives of any changes to the
emergency response plan (ERP); however, safety manager James Allen refused to
provide a copy of the ERP to Pendley. Dep. 83-84. Evidence submitted at hearing
shows that Carl Boone emailed Allen informing him that Pendley was a miners’
representative and should receive a copy of the ERP. Dep-CX-6. Following this
email, Frank Foster of Magnum Coal emailed Allen that “there should be a copy
[of the ERP] posted for Pendley to review if he wishes, correct?” Dep. 65-66; Dep-CX-6.
Allen responded, “We will not post a complete ERP plan!!!” Such refusal to
share required materials with Pendley constituted interference with Pendley’s
rights as a miners’ representative.

Additionally, there
are indications beyond these events that Highland’s actions were conducted with
animus towards Pendley’s rights. For instance, emails introduced into evidence
indicate that Allen was trying to determine who was making confidential 103(g)
complaints to MSHA. Dep. 62. “Section 103(g) of the Mine Act provides for an
immediate inspection of a mine upon the complaint of a miner or representative
of miners. 30 U.S.C. § 813(g). The section further provides that the name of
the complaining miner should not be disclosed.” Highland Mining Co., 31
FMSHRC 61, n. 8 (Jan. 2009). On September 9, 2009, Allen sent an email to
Foster detailing a few recent 103(g) inspections. Dep-CX-5. In response, Allen
asked Foster, “Are we still getting a lot of 103 G’s (sic) there?” Id. Foster
responds to this email, by blind copying a group of Highland managers, and
indicating that he believed Pendley was responsible for the 103(g) complaints
to MSHA. Id.

As you know, Lawrence Pendley
(X-employee) is on the “Miner’s Rep” listing for this group of miners. He shows
up at different times to travel with the inspectors. When he is on the
property, he will review our belt books, then at a later date call in a 103 G
on specific belts that he seen “Corrections needed” entered in the belt books.
MSHA comes out to the mine and inspects these areas. The no. 3 and 4 belts have
been inspected during this regular as a result of 103 G call In’s.

Id. (grammatical
mistakes in original). This email sent among Highland management shows that they
suspected him of making 103(g) complaints and labeled him as a troublemaker.

CONCLUSION
ON LIABILITY

Based
on the above, I find that Highland Mining Company and James Creighton violated
Section 105(c) of the Act by interfering with Lawrence Pendley’s rights as a
Miner’s Representative.

DAMAGES

When
a discrimination complainant’s claim is granted, Section 105 (c)(3) of the Act
provides that the Administrative Law Judge may grant “such relief as it deems
appropriate.” The Complainant has requested no specific relief in these
proceedings. The record, therefore, must be further developed for consideration
of any affirmative relief, including but not limited to, for example, costs and
expenses, posting notice and/or training.

Accordingly,
the parties are ORDERED TO CONFER within 21 days of the
date of this decision for the purpose of arriving at an agreement on the
specific actions and monetary amounts that will constitute the complete relief
to be ordered in this case. If an agreement is reached, it shall be submitted
within 30 days of the date of this decision.

If
an agreement cannot be reached, the parties are FURTHER ORDERED to
submit their respective positions, concerning those issues on which they cannot
agree, with supporting arguments, case citations and references to the record,
within 30 days of the date of this decision. For those areas
involving monetary damages and relief on which the parties disagree, they shall
submit specific proposed dollar amounts for each category of relief. In the
rare event of factual disputes requiring an evidentiary hearing, the parties
should submit a joint request.

The
undersigned judge retains jurisdiction of this matter until the specific
remedies to which Lawrence Pendley is entitled are resolved and finalized. Accordingly,
this decision will not become final until an order
granting any specific relief and awarding any monetary damages has been
entered.

Pursuant
to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a copy of this decision will be
sent to the office of the Regional Solicitor having responsibility for the area
in which the Highland 9 Mine is located so that the Secretary may take the
actions required by the rule.

/s/ Kenneth R. Andrews

Kenneth R.
Andrews

Administrative
Law Judge

Distribution:

Tony Oppegard,
Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington,
Esq., Appalachian Citizens’ Law Center, 317 Main St., Whitesburg, KY 41858

Melanie J.
Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, KY 40513

Jack Creighton,
324 Bell Hite Drive, Morganfield, KY 42437

Douglas N. White,
Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247

/mzm

[1] Complainant’s
exhibits will hereinafter be designated CX followed by a number. The
Respondent’s exhibits will be designated as RX followed by a number. Dep-CX or
Dep-RX followed by a number refers to the Complainant’s or Respondent’s
exhibits that were attached to the deposition submitted into the record.

[2] This Complaint
was docketed as KENT 2011-337-D, with MSHA Case No. MADI CD 2010-11.

[3] Pages of the
official hearing transcript are designated “Tr.” followed by the appropriate
page reference(s).

[4] 34 FMSHRC 3406
(December 27, 2012) (ALJ Barbour); 30 FMSHRC 459 (May 19, 2008) (ALJ Barbour).

[5] Millburg’s
deposition of April 8, 2014, was submitted as testimony at hearing. At the time
of deposition, Millburg was employed as the General Manager by Cliff’s Natural
Resources in Hueytown, Alabama. Dep. 8-9. Millburg had a high school degree, a
hoist engineer’s certificate, a mine examiner’s certificate, a mine manager’s
certificate, Kentucky mining papers, and Illinois and Kentucky mine manager and
examiner certificates. Dep. 9. He had worked in the mines since 1973, as a
utility man, maintenance foreman, assistant mine manager, shift manager,
general manager, operations manager, superintendent, and vice president of
operations. Dep. 9-11. When Millburg became vice president of operations in
February 2011, he had jurisdiction over Highland 9, the surface mine, Freedom
underground mine outside Henderson, and the underground mine at Dodge Hill. Millburg
began at Highland in April, 2006. Dep. 44. Therefore, Millburg’s jurisdiction
included Highland 9 mine from 2006 through August 2012. Dep. 12-13. During the
2009-2010 timeframe, Millburg’s duties included him being in charge of
operations at Highland 9 mine, including production, safety, maintenance, and employee
discipline. Dep. 13-14.

[6] Jack Creighton
was employed at Highland No. 9 mine in February and March 2010. Tr. 72. Creighton
began in the mining industry at Highland No. 9 mine since 1972, and retired on
September 21, 2013. Tr. 72-74. He had worked as an underground supply man, a
timber man, a ventilation man, a hoist man, a scoop man, and a
bathhouse/supply/surface utility man. Tr. 73. Creighton’s duties at the time of
hearing included running the hoist, cleaning up the bathhouse, loading and unloading
supplies, and working in utilities. Tr. 74. Most of his duties were on the mine
surface. Tr. 74-75.

[7] Creighton
testified that he ran into Winter and Pendley right outside the commons area.
Tr. 77.

[8] Weiss did all
the mine maps and computer work at the mine at the time. Dep. 31. He passed
away prior to the hearing. Dep. 31-32.

[9] In quarterly
closeouts, there is a review of the mine violations during the quarter, and
miners’ representatives have an opportunity to be present. Tr. 22-23.

[10] Creighton
alternately described his comment as, “I’m going to file a harassment case
against you.” Tr. 126-127.

[11] The regulations
define “representative of miners” as:

(1) Any person or organization which
represents two or more miners at a coal or other mine for the purposes of the
Act, and

(2) Representatives authorized by the
miners, miners or their representative, authorized miner representative, and
other similar terms as they appear in the Act.

30
C.F.R. § 40.1.

[12] The Senate
Report accompanying the Mine Act states, “Presence of a representative of
miners at opening conference helps miners to know what the concerns and focus
of the inspector will be, and attendance at closing conference will enable
miners to be fully apprised of the results of the inspection. It is the
Committee's view that such participation will enable miners to understand the
safety and health requirements of the Act and will enhance miner safety and
health awareness.” S. Rep. 95-191.

[13] Judge Barbour
recounted this history in his decision:

It is before me on remand from the
Commission (Sec'y of Labor on behalf of Pendley v. Highland Mining Co.,
34 FMSHRC___, KENT 2007-383-D (August 30, 2012) (hereinafter Pendley,
slip op.), which in turn received the case from the United States Court of
Appeals for the Sixth Circuit. Pendley v. FMSHRC, 601 F. 3d 417 (6th
Cir. 2010). The Sixth Circuit reversed the prior decision of the Commission (Sec'y
on behalf of Pendley v. Highland Mining Co., LLC, 31 FMSHRC 61 (Jan.
2009)), a decision affirming my underlying decision on the merits. Sec'y on
behalf of Pendley v. Highland Mining Co, LLC, 30 FMSHRC 459 (May
2008) (ALJ). Pursuant to its reading of the Sixth Circuit's opinion, the
Commission returned the case to me to determine whether Highland Mining Co.
(“Highland”) discriminated against Lawrence Pendley (“Pendley”) in violation of
the Mine Act when it: (1) fired him in March 2007, and (2) changed his work
assignments and conditions when he returned to work upon an order of
reinstatement.1 Pendley, slip op. at 15.

34
FMSHRC at 3406.

[14] This decision
is also in the Record as RX-7.

[15] This decision
is also in the Record as RX-6.