Simpson v. Kenta Energy, Inc.

Plain-English summary

Robert Simpson left his scoop-operator job at Kenta Energy's No. 1 Mine after safety concerns about mine examinations and mining toward abandoned workings. The Commission, acting after a federal appeals court remand, held that Simpson's work refusal was protected because communication with management would have been futile. It affirmed that Kenta and Roy Dan Jackson constructively discharged Simpson and unlawfully refused to rehire him, confirmed Simpson's final judgment against Kenta, and rejected Jackson's procedural challenge. The Commission denied Simpson's motion to reopen for successor-liability proceedings, leaving him to pursue enforcement of the final judgment through appropriate forums.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 815(c)(3)
• Outcome: The Commission affirmed the ALJ decisions, including the findings of protected work refusal, constructive discharge, refusal to rehire, and Jackson's personal liability, and denied the motion to reopen.
• Key point: A miner's failure to tell management about a safety concern may be excused when the record supports that communication would have been futile.

Full text (FMSHRC public release)

CCASE:
R. SIMPSON V. KENTA ENERGY AND ROY JACKSON
DDATE:
19890511
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                            May 11, 1989

ROBERT SIMPSON

v. Docket No. KENT 83-155-D

KENTA ENERGY, INC.

and

ROY DAN JACKSON

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners

             DECISION

BY THE COMMISSION:

This discrimination proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)
(the "Mine Act" or "Act"), is on remand to us from an opinion of
the United States Court of Appeals for the District of Columbia
Circuit reversing our prior decision in this matter. Robert Simpson
v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988), rev'd, Robert Simpson v.
Kenta Energy, Inc. & Roy Dan Jackson, 8 FMSHRC 1034 (July 1986).
This case involves a discrimination complaint filed by Robert Simpson
alleging that he engaged in a protected work refusal and that Kenta
Energy, Inc. ("Kenta") and Roy Dan Jackson constructively discharged
him and refused to reinstate him in violation of section 105(c)(1) of
the Mine Act. 30 U.S.C. § 815(c)(1). In a decision on the merits and
a supplemental decision as to Jackson's personal liability, Commission
Administrative Law Judge James A. Broderick upheld Simpson's complaint
against Kenta and Jackson, and ordered Simpson reinstated with back
pay, interest, attorney's fees, and litigation expenses. 6 FMSHRC
1454 (June 1984)(ALJ); 7 FMSHRC 272 (February 1985)(ALJ).

Page 2

Jackson petitioned the Commission for review, and we reversed

the judge's decisions, concluding that Simpson did not engage in a
protected work refusal because of a failure to communicate his safety
concerns and that, in any event, he was not constructively discharged
in violation of the Act. 8 FMSHRC 1034 (July 1986). Simpson appealed
to the Court, which reversed and remanded with instructions to the
Commission to consider certain issues. In light of the Court's
decision, we now resolve the remanded issues, decide remaining
questions not reached in

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our prior decision given our original disposition, and, on the
following grounds, affirm the judge's decisions.

                  I.

 The facts relating to Simpson's work refusal and the

adverse actions are set forth in our earlier decision and need not
be repeated in detail here. See 8 FMSHRC at 1035-37. Briefly,
Simpson, a scoop operator at Kenta's No. 1 Mine, quit his job in
September 1982 because of safety concerns based on conditions at
the mine. Prior to leaving work, Simpson failed to communicate
those concerns to any supervisory representative of Kenta. In
December 1982, approximately three months after he quit, Simpson
met Roy Dan Jackson, Kenta's President, by chance, explained the
safety concerns that had prompted his action, and asked for his job
back. Jackson refused to rehire him. Shortly before his encounter
with Jackson, Simpson had filed a discrimination complaint with the
Secretary of Labor alleging that his severance of employment had
amounted to a violation of section 105(c)(1) of the Mine Act.
Following investigation of this complaint, the Secretary determined
that no violation of the Act had occurred and Simpson then filed with
this independent Commission his individual discrimination complaint
against both Kenta and Jackson. See 30 U.S.C. §§ 815(c)(2) & (3).

 In his decision on the merits upholding Simpson's complaint,

Judge Broderick found that Simpson's decision to leave his job
represented a protected work refusal based on Simpson's reasonable,
good faith concerns for his safety. The judge found that there
was no qualified supervisor to perform required preshift and onshift
examinations and that Simpson believed that they were cutting in
the direction of abandoned works with no test holes being drilled.
6 FMSHRC at 1455-57, 1460. Concerning the requirement in work
refusal situations that a miner communicate his safety concerns to
the mine operator prior to or reasonably soon after his work refusal
(see, e.g., Secretary on behalf of Dunmire and Estle v. Northern
Coal Co., 4 FMSHRC 126, 133 (February 1982)), the judge found that
Simpson had not communicated his safety concerns to Jackson. The
judge excused the failure, however, on the grounds that Jackson had
actual knowledge of the absence of a foreman and the failure to
perform the preshift and onshift examinations and that communication
would have been futile. 6 FMSHRC at 1462. The judge concluded that
Simpson suffered an adverse action, a constructive discharge, because
Simpson was subjected to working conditions so intolerable that he
was forced to quit. 6 FMSHRC at 1460-61. The judge found that
although Kenta and Jackson were not motivated to maintain the

Page 4

intolerable working conditions because of Simpson's protected
activity, their motivation was not determinative as to whether
discrimination had occurred. 6 FMSHRC at 1461. The judge further
determined that Jackson's failure to rehire Simpson also violated
section 105(c) of the Act. 6 FMSHRC at 1457, 1462-63, 1464. With
regard to the latter finding, the judge rejected the operator's
defense that Simpson would have been laid off in any event for
economic reasons in January or February of 1983. 6 FMSHRC at 1462,
1463.

At the conclusion of his decision on the merits, the judge

directed further proceedings to resolve the question of whether

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respondent Jackson was personally liable for the discriminatory
acts in issue. 6 FMSHRC at 1464. The judge ordered Simpson to
"file a statement explaining with particularity the legal basis of
his claim against Respondent Jackson, and the evidence it expects
to produce to establish that claim." Id. On June 27, 1984, Simpson
submitted a Statement of Claim, essentially basing his assertion of
Jackson's personal liability on doctrines of piercing the corporate
veil and alter ego. On July 30, 1984, the judge issued an Order
Permitting Further Discovery and Notice of Hearing. In part, the
order dealt with Simpson's contention that Jackson should be held
personally liable for the discrimination in question:

 Jackson's liability in this case depends upon
 whether he was the "person" who discharged
 Complainant in violation of section 105(c)(1)
 of the Act. This question may be related to the
 further question whether Jackson was the "operator"
 (defined in section 3(d) of the Act) of the subject
 mine. The questions whether Jackson was the alter
 ego of Kenta and whether Kenta's corporate veil may
 be pierced are important insofar as they may bear on
 the first question set out above.

Order 2. In his February 1985 remedial decision, the judge
concluded that Jackson was, in reality, the "operator" of the mine
at all relevant times and found Jackson personally liable for the
unlawful discrimination at issue. 7 FMSHRC at 273-78. The judge
directed Simpson's reinstatement, the award of some $36,000 in back
pay and interest, and payment of some $57,000 in attorney's fees and
expenses. 7 FMSHRC at 286.

 Jackson filed a Petition for Discretionary Review; Kenta

did not. In his petition, Jackson challenged the judge's central
conclusions with respect to Simpson's work refusal, the communication
issue, and the two instances of discrimination. Jackson also assigned
as error the judge's finding that Simpson would not have been laid off
for economic reasons and further claimed that the judge committed a
prejudicial error of procedure "by first establishing a procedure for
trying the issue of Jackson's personal liability wherein Simpson
framed the specific legal basis for his claims against Jackson and
then issuing his [remedial] order on matters not specified by
Simpson." PDR 15-17. Jackson raised no issues concerning the back
pay or attorney's fees determinations.

In our decision reversing the judge, we held that the

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judge erred in concluding that Simpson had engaged in a protected
work refusal and that Simpson had been subjected to a discriminatory
constructive discharge and failure to rehire. 8 FMSHRC at 1038-41
& n.4. With respect to the work refusal issue, we agreed with the
judge that Simpson had a good faith, reasonable belief in hazardous
conditions. 8 FMSHRC at 1038. However, focusing on the requirement
that a miner communicate to the operator his health or safety
concerns, we concluded that Simpson, without any showing of good
reason, had failed to communicate such concerns "to anyone in
authority prior to quitting his job on September 20, or even
reasonably soon thereafter." 8 FMSHRC at 1039.

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We rejected the judge's finding (6 FMSHRC at 1462) that any such
communication by Simpson would have been futile: "Even assuming,
as the judge did, that Jackson was aware of the absence of a foreman
and the failure to conduct the required pre-shift and on-shift
examinations, we cannot presume that Jackson would have taken no
action had Simpson communicated his concerns to Jackson." 8 FMSHRC
at 1039-40.

In addressing the constructive discharge issue, and assuming

arguendo that Simpson had engaged in protected activity, we stated
that "in order to establish a successful claim of constructive
discharge, the miner must show that in retaliation for protected
activity by the miner the operator created or maintained intolerable
working conditions in order to force the miner to quit." 8 FMSHRC
at 1040, citing Rosalie Edwards v. Aaron Mining, Inc., 5 FMSHRC 2035,
2037 (December 1983). We found "no evidence in this record that
Kenta or Jackson were motivated to create or to maintain the
conditions about which Simpson was concerned because of the exercise
by Simpson of any rights protected by the Mine Act." 8 FMSHRC
at 1040-41. Accordingly, we concluded that Simpson had not been
constructively discharged in violation of the Act.

In addition, we found insufficient record support for, and

therefore reversed, the judge's additional conclusion that the
failure to rehire Simpson constituted a further violation of
section 105(c) of the Act. 8 FMSHRC at 1041 n.4. We also denied
a motion filed on review by Simpson to reopen the proceedings to
determine whether the Black Joe Coal Company was a legal successor
to Kenta and, hence, liable for Kenta's alleged discrimination.
8 FMSHRC at 1041. Simpson had asserted that the judge's finding as
to Kenta's liability was final and not subject to review insofar as
Kenta was concerned because Kenta had not petitioned the Commission
for review of the judge's decision. We stated:

In his petition for review Jackson raised the
central issue of whether Simpson was discriminated
against in violation of the Act. We have concluded
that no discrimination occurred in conjunction with
Simpson's leaving the job. Because there is no
violation of the Act, there is no liability on
behalf of any respondent. In these circumstances,
Simpson's argument that he had a binding judgment
against Kenta because Kenta did not separately seek
review is rejected. See, e.g., Arnold Hofbrau, Inc.
v. George Hyman Construction Co., Inc., 480 F.2d 1145,

Page 8

  1150 (D.C. Cir. 1973).

Id.

Given our disposition of the case, we did not address the

issues of whether Simpson would have been laid off in any event and
whether the judge committed a prejudicial procedural error in the
supplemental remedial proceedings.

In its opinion reversing our decision, the Court approved in
general terms the Commission's Pasula/Robinette work refusal doctrine

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(2 FMSHRC 2786 (October 1980); 3 FMSHRC 803 (April 1981),
respectively). 842 F.2d at 458. The Court also specifically
endorsed the Commission's Dunmire & Estle communication requirement
in work refusal situations (4 FMSHRC 126 (February 1982)). 842 F.2d
at 459.

 With regard to the subject of communication in a work refusal

context, the Court noted that Simpson argued that the futility of
communication issue was one of fact and that the Commission had
impermissibly substituted its own view of the facts for that of the
judge, while Jackson argued that the futility issue was one of law.
842 F.2d at 459-60. The Court opined that the "Commission's decision
sheds little light on this [factual v. legal] aspect of the dispute."
842 F.2d at 460. The Court quoted the Commission's discussion of
futility (8 FMSHRC at 1039-40), and stated that it could not determine
"whether the Commission meant to reject the legal standard applied by
the ALJ, or, alternatively, whether the Commission simply regarded the
ALJ's finding of futility as a fact determination that lacked adequate
record support." Id. The Court suggested that the Commission's
decision "could be read to maintain that there was substantial
evidence only for a finding of 'possible operator awareness of a
hazard,: [8 FMSHRC at 1040], and not for the conclusion that notice
would have been futile." Id.

The Court then engaged in its own evidentiary analysis, in

which it concluded that substantial evidence supported the judge's
findings "not only that Jackson was aware of conditions at the mine
but also that he would have been unresponsive to any worker complaints
about them." 842 F.2d at 460-61. However, the Court stopped short of
totally disposing of this issue because it felt that the Commission's
decision may have been based on "an unarticulated conclusion that, as
a matter of law, futility in this context requires some showing beyond
what the term means in common parlance, a showing Simpson may not have
made." 842 F.2d at 461 (emphasis added). The Court accordingly
remanded the issue to us in the following terms: "We therefore remand
the communication issue to the Commission for reconsideration, and for
a clear explanation of why the futility exception should or should not
apply to the facts of this case." 842 F.2d at 461.

The Court next examined the constructive discharge issue,

noting that "[a]ll parties apparently agree that if the work
refusal was protected, a constructive discharge would have amounted
to unlawful discrimination...." 842 F.2d at 461. Relying on Clark
v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981), a Title VII discrimination
case, the Court distinguished between its own, preferred "objective"

Page 10

standard governing constructive discharges, and what it described as
the Commission's "subjective," motivation-based standard. 842 F.2d
at 461- 63. The Court approved the "objective" constructive discharge
standard for Mine Act purposes. Id. The Court viewed the objective
standard as requiring a showing that "an operator created or
maintained conditions so intolerable that a reasonable miner would
have felt compelled to resign." 842 F.2d at 461. The Court
attached weight to the fact that the Commission had recognized that
respondents' "blatant violations of the Mine Act" had led to Simpson's
leaving his job. 842 F.2d at 463. The Court concluded its
examination by asserting in effect that there

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was no question that conditions were intolerable at the Kenta No. 1
Mine and justified Simpson's work refusal. The Court then stated
that resolution of the case therefore turned on whether Simpson's
work refusal was protected -- the primary subject of remand. 842 F.2d
at 463.

 Finally, the Court addressed the operator's failure to rehire

and the motion to reopen. Regarding failure to rehire, the Court
observed that if "Simpson's September work refusal was unprotected,
the Commission's ruling [on rehire] would be sound, because the
discrimination prohibited by the Mine Act requires some nexus to
protected activity." 842 F.2d at 464. On the other hand, if
"Simpson's work refusal was protected by the Mine Act, the evidence
... would have supported the ALJ's finding that the refusal to rehire
was based on protected activity, in violation of section 105(c)(1)."
Id.

 The Court's treatment of the Commission's disposition of

Simpson's motion to reopen turned on the fact that Kenta had not
separately sought review of the judge's decision. The Court regarded
the Commission's disposition of that issue as amounting to a
"vacation" of the judgment against Kenta, apparently not subscribing
to the Commission's view, based on the Court's decision in Arnold
Hofbrau, supra, that a finding of no liability at all in this matter
would operate to relieve Kenta (and its successors) of liability
under the judge's decision. The Court stated:

         The Commission's return to the merits of Simpson's
 case obviously may compel a return to this last holding,
 so we note at this point only the questionable consistency
 of the Commission's action vacating the judgment against
 Kenta Energy with its review authority. See ... 30 U.S.C.
 $ 823(d) (limiting the grounds for discretionary review by
 the Commission, and denying authority to "raise or consider
 additional issues" not presented by the petition for review).

842 F.2d at 464.

                  II.

 We first address the specific issues that the Court remanded

to the Commission, and then resolve the two questions remaining from
the original proceeding on review.

A.   Issues on remand

Page 12

    1.   Futility of communication

 The Court stated that our determination regarding futility

of communication may have been based on our "conclusion that, as a
matter of law, futility in this context requires some showing beyond
what the term means in common parlance." 842 F.2d at 461. Such is
not the case.

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The Court specifically approved our statement of the communication
requirement associated with the right to refuse work as set forth
in Dunmire and Estle, supra. In that decision, we held:

          Where reasonably possible, a miner refusing
 work should ordinarily communicate, or at least
 attempt to communicate, to some representative of
 the operator his belief in the safety or health
 hazard at issue. "Reasonable possibility" may be
 lacking where, for example, a representative of
 the operator is not present, or exigent circumstances
 require swift reaction. We also have used the word,
 "ordinarily" in our formulation to indicate that even
 where such communication is reasonably possible,
 unusual circumstances -- such as futility -- may excuse
 a failure to communicate. If possible, the communication
 should ordinarily be made before the work refusal, but,
 depending on circumstances, may also be made reasonably
 soon after the refusal.

4 FMSHRC at 133 (emphasis added).

 As the Court recognized (842 F.2d at 460), Dunmire and Estle

stands for the general proposition that communication issues should
be resolved "in a common sense, not legalistic manner." 4 FMSHRC
at 134. Accordingly, we do not view the futility exception to the
communication requirement as a technical or restrictive concept.
Rather, futility in this context is based on the common meaning of
the term and covers situations in which a miner's communication of
a health or safety concern would be ineffective or useless. See
generally Webster's Third New Int'l Dictionary (Unabridged) 925
(1986 ed.)(definitions of "futile" and "futility"). If genuine
futility is present, a miner's failure to communicate may be excused.
Such a situation may occur, for example, where a mine operator has
made clear that it will not address complained of hazards or where
the operator has manifested "evident disdain for worker complaints"
(842 F.2d at 460).

Our earlier resolution of the futility issue was based on

factual, not legal, grounds and meant only that we discerned a
lack of substantial evidentiary support for what we viewed as the
judge's "presumption" that communication with Jackson would have
been futile. See 8 FMSHRC at 1039-40. The court, however, has
concluded that there is adequate record support for the judge's
findings that Jackson was aware of the conditions at the mine and

Page 14

would have been unresponsive to worker safety complaints about
those conditions. 842 F.2d at 460-61. Within the proper meaning
of the Dunmire and Estle futility exception as explained above, the
Court has effectively held that Simpson's failure to communicate is
excused. In light of the Court's factual determinations, we so hold
as well. Given our prior finding that Simpson's work refusal was
based on a reasonable, good faith belief in a hazard (8 FMSHRC at
1038), we conclude that Simpson engaged in a protected work refusal
under the Mine Act.

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2. Constructive discharge

The Court, agreeing with the judge, held that to establish a

successful claim of constructive discharge under the Mine Act, a
miner must show that the operator maintained conditions so intolerable
that a reasonable miner would have felt compelled to quit. 842 F.2d
at 461-63. Noting our statement that "blatant violations of the Mine
Act" existed at the mine prior to Simpson's work refusal (8 FMSHRC
at 1038), the Court observed that such conditions "see[m] to preclude
[the Commission's] rejection of the ALJ's finding [that the operator
maintained conditions so intolerable that a reasonable miner would
have felt compelled to quit]." 842 F.2d at 463. Given the Court's
disposition of this issue, we are constrained to conclude in this
case that Simpson established that he was subjected to constructive
discharge in violation of section 105(c)(1) of the Act.

   3.   Refusal to rehire

Given our disposition of the work refusal and constructive

discharge issues, we additionally conclude that the refusal to
rehire Simpson after he quit also constituted an act of unlawful
discrimination. We had reversed the judge on this issue, finding
insufficient record support for his conclusion to the contrary.
The Court stated, however, that "[i]f Simpson's work refusal was
protected by the Mine Act, the evidence ... would have supported
the ALJ's finding that the refusal to rehire was based on protected
activity in violation of section 105(c)(1)." 842 F.2d at 464. In
view of the Court's analysis of the relevant evidence,,we accordingly
adopt the Court's view and conclude that the refusal to rehire also
violated the Act.

   4.   Simpson's motion to reopen

On review before the Commission, Simpson had moved to reopen

the proceedings to determine whether Black Joe Coal Company was the
legal successor to Kenta and should assume Kenta's liability to
Simpson. We originally denied this motion in view of our conclusion
that no violation of the Act had occurred. As noted, Kenta did not
seek Commission review of the judge's decision. In the Court's
apparent view, Kenta's failure to petition for review meant that,
pursuant to operation of the statute, the judge's decision with regard
to Kenta became a final decision of the Commission on April 7, 1985,
40 days after its issuance. 30 U.S.C. § 823(d)(1). No party sought
review of that "portion" of the judge's decision in a United States
Court of Appeals. 30 U.S.C. § 816(a). Under these circumstances,

Page 16

the Court appears to have treated the judge's decision as to Kenta
as a final judgment that we lacked authority to review or "vacate."
See 842 F.2d at 464. We adopt in this case the Court's view in that
regard. Therefore, Simpson must be regarded as having received a
final judgment holding Kenta liable to Simpson for the discriminatory
acts at issue and for the relief ordered by the judge.

Simpson's motion to reopen alleges generally that Kenta went out

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of business and did not reinstate Simpson or pay him back pay,
and that Black Joe Coal Company is Kenta's successor for purposes
of Mine Act liability and should be held liable to remedy the
respondents' discrimination. In Ronald Tolbert v. Chaney Creek
Coal Corp., 9 FMSHRC 1847 (November 1987), we denied a similar
motion to reopen a final judgment" on the grounds that the relief
sought was in the nature of enforcement of judgment and collection
of a judgment debt and that such an enforcement request is properly
directed to the Secretary of Labor, who is authorized pursuant to
sections 106(b) and 108 of the Mine Act, 30 U.S.C. §§ 816(b) & 818,
to seek compliance with Commission orders in the federal courts.
9 FMSHRC at 1848. We subsequently made clear that if the Secretary
declines to act in enforcement, all other remedies (including any
remedies available in state courts) may be pursued. Danny Johnson
v. Lamar Mining Co., 10 FMSHRC 506, 508-09 (April 1988).

Accordingly, we deny Simpson's motion to reopen. Simpson

may pursue his appropriate enforcement remedies elsewhere. We have
today confirmed that his judgment against Kenta is final. There is
no serious legal question that a Commission judgment may be enforced
against a genuine successor. See generally Secretary on behalf of
Corbin v. Sugartree Corp., 9 FMSHRC 394 (March 1987), aff'd sub nom.
Terco v. FMSHRC, 839 F.2d 236 (6th Cir. 1987), pet. for cert. den.,
U.S. , 102 L.Ed 2d 36 (1988). We note that questions of
successorship frequently arise in the context of enforcing judgments.
See, e.g., Christiansen v. Mechanical Contractors Bid Depository,
404 F.2d 324, 325 (10th Cir. 1968) (proceedings for execution upon
a judgment pursuant to Fed. R. Civ. P. 69). Thus, the Secretary on
Simpson's behalf or Simpson, as the case may be, may seek enforcement
of his claims in any proper enforcement forum.

B. Additional Issues

As noted, two issues were not decided in our original opinion

given the other results that we reached. We now resolve those
questions, both of which were previously briefed to us on review
by the parties.

    1.   The layoff issue

Before the judge, Kenta had argued as a defense to the

allegations of discriminatory discharge and refusal to rehire that
"because of a recession in the coal business, [Simpson] would have
been laid off in any event and that he was not rehired in December
[1982] because there was no job for him." 6 FMSHRC at 1462. The

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judge rejected this defense, stating that "[t]he evidence does not
show that [Simpson] would have been laid off for economic reasons."
6 FMSHRC at 1463. On review, Jackson argues that the judge erred
in finding that Simpson would not have been laid off for economic
reasons. The evidence in the record establishes that certain layoffs
did occur at the mine in January or February 1983, after the December
1982 refusal to rehire Simpson. Therefore, given our conclusion above
that the refusal to rehire was in violation of the Act, we view
Jackson's and Kenta's assertions that Simpson would have been laid off
in any event as a defense to the judge's order of reinstatement and
award of back pay and interest.

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In general, once discrimination has been found and a gross
amount of back pay alleged, "the burden is on the employer to
establish facts which would negative the existence of [backpay]
liability to a given employee or which would mitigate that
liability." NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318
(D.C. Cir. 1972), quoting NLRB v. Brown & Root, Inc., 311 F.2d 447,
454 (8th Cir. 1963). Specifically, the burden of showing that work
was not available for a discriminatee, whether through layoff,
business contractions, or similar conditions, lies with the employer
as an affirmative defense to reinstatement and backpay. See, e.g.,
NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175-77 (2d Cir. 1965),
cert. den., 384 U.S. 170 (1966). Cf. Secretary of Labor v. Metric
Constructors, Inc., 6 FMSHRC 226, 232-33 (February 1984), aff'd,
776 F.2d 469 (11th Cir. 1985) (operator bears burden of proof with
respect to willful loss of earnings by back pay claimant). Thus, at
trial the burden was on respondents to establish by a preponderance
of the evidence Simpson's probable layoff as an affirmative defense
to his claims for reinstatement and back pay.

 Judge Broderick concluded that respondents had not carried

their burden of proof. The evidence on the subject was provided by
the testimony of Jackson himself. Initially, Jackson testified that
he had laid off two miners after Simpson left; that the mine was not
"running much coal" and that he had been required to "cut the crew
down real small;" that other miners in his crew were more experienced
than Simpson; and that he would "lay the youngest men off first."
Tr. 609, 611-12, 614-16. In response to subsequent questioning by
Judge Broderick, Jackson further stated that he "guess[ed]" that the
two miners he had laid off were let go in January or February 1983;
that they were "the youngest people [he] had"; that he "guess[ed]"
that they had more seniority than Simpson; that he "guess[ed]" that
"most" of the miners had more seniority than Simpson; that layoffs
were also based on "job qualification"; and that one of the two laid
off miners "might have" qualified for Simpson's scoop operator's job
while the other would not have. Tr. 654-55. Significantly, Jackson
testified that he did not always base layoff decisions on seniority,
at times basing such decisions on the size of a miner's family and
upon job qualifications. Tr. 315-16, 655.

The judge weighed the respondents' evidence and found it

lacking. Jackson's testimony lacks specificity as to how seniority
was calculated. It also lacks certainty as to the seniority of the
two laid-off miners or the retained miners in relation to Simpson,
and as to how "job qualification" and family considerations figured
into Jackson's decisions regarding layoffs. Further, the respondents

Page 20

did not introduce seniority lists or business records explaining the
layoff decisions or the effects of the alleged recession on the mine's
operation.

The record evidence also shows that another miner, Roy Gentry,

a former bolting machine operator, replaced Simpson as scoop operator
after Simpson left. Gentry Dep. 3. This fact lessens the weight to
be accorded Jackson's assertion that he had not hired any scoop
operators to replace Simpson; apparently, he did not have to. There
is no evidence of record as to how Simpson's incumbency in the scoop
position would have been affected had he not left work. The
respondents bore the

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burden of proving that Simpson would have been laid off and we
conclude that they failed to carry that burden.

   2.   The procedural objection

At the outset, it is important to clarify that Jackson is not

claiming that there was a lack of notice or a procedural error in
trying the question of his personal liability nor is he attacking on
the merits any of the judge's substantive findings with regard to his
personal liability. Jackson contends only that in concluding Jackson
was an "operator" and personally responsible for the discrimination
in question, the judge went beyond Simpson's supplemental statement
of claim, which framed the issue of Jackson's liability in terms of
piercing the corporate veil and alter ego. We find this objection
semantic and without merit.

 The discrimination complaint and trial (see Tr. 344-45) made

clear that Simpson was pursuing Jackson as a co-respondent on theories
of personal liability. Simpson's argument that the corporate veil
should be pierced to show that Jackson was the alter ego of Kenta was
simply another way of stating that Jackson was the real "operator,"
the real "person" in control of the personnel actions at the mine.
The point of this approach was to show that Jackson should not be
permitted to "hide" behind the corporate veil. We find Simpson's
statement of claim reasonably clear in this regard. For example, at
pp. 9-10 of the claim, Simpson asserts that "[f]rom this evidence it
is clear that Jackson was the operator of the [mine] ... [and] that
corporate formalities were not observed. ... Jackson was the alter
ego of Kenta." In other words, any evidence as to corporate control
was relevant only to the extent that it clarified Jackson's status as
an "operator" and his personal responsibility for the events at issue.

The judge's order of July 30, 1984, also made the nature of

this issue reasonably clear. If the respondents were aggrieved by
the judge's characterization of the question, they should have
objected in a timely fashion to the judge himself -- a course they
did not follow. In view of this, Jackson cannot be heard on appeal
to complain that he was deprived of notice or prejudicially misled
by Simpson's pleadings. Accordingly, we reject this procedural
objection.

Page 22

~781
III.

 In sum, on the bases articulated above, we affirm the

judge's conclusions that Simpson engaged in a protected work
refusal and that Kenta and Jackson violated the Act when Simpson
was discharged and refused rehire. We confirm the viability of
Simpson's final judgment against Kenta. We deny Simpson's motion to
reopen. Simpson may pursue all appropriate remedies for enforcement
of the final judgment against Kenta. We affirm the judge's finding
that respondents failed to prove that Simpson would have been laid
off, and we reject the procedural challenge to the judge's actions
below. Accordingly, Judge Broderick's decisions are affirmed. 1/

               Richard V. Backley, Commissioner

               Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

               L. Clair Nelson, Commissioner

1/ Chairman Ford did not participate in the consideration or
disposition of this matter.

Page 23

~782
Distribution

Tony Oppegard, Esq.
Steven Sanders, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701

David T. Smorodin, Esq.
Steven D. Cundra, Esq.
Thompson, Hine & Flory
1920 N Street, N.W.
Washington, D.C. 20036

Dennis D. Clark, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041