Troy W. Conway, Jr. v. Peabody Coal Company

Plain-English summary

Troy W. Conway, Jr., a lab technician at Peabody Coal Company's Camp No. 9 Preparation Plant, complained about missing hazard information and protective equipment for perchlorethylene used in coal testing. Judge Gary Melick found that Conway engaged in protected safety activity and that the evidence supported a prima facie discrimination case. The judge nevertheless found that Peabody proved it would have laid Conway off for economic reasons because coal-processing changes eliminated a senior lab technician position, and because Conway had low company seniority and documented work-performance problems. The discrimination complaint was dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and 30 U.S.C. § 815(c)(3)
• Outcome: The discrimination complaint was dismissed because Peabody proved it would have laid Conway off for unprotected economic and performance reasons.
• Key point: Protected safety complaints can establish a prima facie case, but the operator may prevail by proving it would have taken the same adverse action for independent reasons.

Full text (FMSHRC public release)

CCASE:
TROY W. CONWAY V. PEABODY COAL
DDATE:
19890615
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

TROY W. CONWAY, JR., DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 88-127-D
v.
MADI CD 88-02
PEABODY COAL COMPANY, Camp 9 Preparation Plant
RESPONDENT

                             DECISION

Appearances: C. Terry Earle, Esq., Earle & Baird, Greenville,
Kentucky, for Complainant;
Eugene P. Schmittgens, Jr., Esq., Peabody
Holding Company, St. Louis, Missouri, for
Respondent.

Before: Judge Melick

 This case is before me upon the Complaint by Troy W. Conway,

Jr., under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq., the "Act," alleging
discrimination by the Peabody Coal Company (Peabody) in violation
of section 105(c)(1) of the Act.(FOOTNOTE 1) Mr. Conway alleges that he
was laid-off on October 30, 1987, in unlawful retaliation for his
reporting of safety and health related complaints to Peabody.

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In order to establish a prima facie case of discrimination under
section 105(c) of the Act, a complaining miner bears the burden
of production and proof in establishing that (1) he engaged in
protected activity and (2) the adverse action complained of was
motivated in any part by that activity. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(1980), rev'd on other grounds, sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (1981).
The operator may rebut the prima facie case by showing either
that no protected activity occurred or that it was not motivated
in any part by protected activity. If the operator cannot rebut
the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the
miner's unprotected activity and would have taken the adverse
action in any event for the unprotected activity alone. Pasula,
supra; Robinette supra; see also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-6 (6th Cir. 1983) specifically
approving the Commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983)
approving a nearly identical test under the National Labor
Relations Act.

 The evidence shows that Troy Conway, Jr., a 30 year old

miner, was employed by Peabody during relevant times as a
nonunion lab technician at the Camp No. 9 Preparation Plant. It
is undisputed that in the course of his work in testing coal
samples and specifically in performing float/sink analyses, the
chemical perchlorethylene was used. Further it is undisputed that
perchlorethylene can be hazardous and that protective clothing
should be worn when performing such analyses (See Exhibit R-1).

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According to Conway, he learned on October 8, 1986, from
Warehouse Clerk Markham that Markham had received a "breakdown
sheet," apparently the manufacturer's document explaining the
hazards related to perchlorethylene, but Conway was unable to
obtain the sheet from Markham.

 Conway claims that he then went to company Safety Director

Larry Cleveland and Acting Superintendent Kenny Luckhurst on
October 9 or 10, to obtain the information but that Cleveland
told him "he didn't get anything new that day". Conway testified
that he then went to see his father, Troy P. Conway, Sr., who was
Chairman of the Union Safety Committee, to help obtain the
"breakdown" or "MSDS Sheet" on the subject chemical. Conway
acknowledges that three days later he received a copy of the
requested "MSDS Sheets" from his foreman Keith McNew.

 According to Conway, lab conditions also changed that same

day when McNew posted warning signs throughout the preparation
plant noting as follows: "Do not enter without respirator, or
protective clothing". Conway also testified that 2 or 3 days
after he received the "MSDS" sheet the lab workers also received
additional respirators, protective gloves, splash goggles and
full-length protective aprons. Conway believed that he was
responsible for these changes as a result of his request for the
"MSDS" sheet.

 Conway maintains that thereafter Mine Superintendent Wes

Shirkey harrassed him, verbally abused him and accused him of
failing to perform his work. Shirkey purportedly also told Conway
that he had an "attitude problem", hung around the union people
too much, and stirred up too much trouble.(FOOTNOTE 2)

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Troy P. Conway, Sr., was, during relevant times, chairman of the
mine committee and member of the safety committee of the local
union, and preparation plant mechanic. The senior Conway
testified that on October 10 his son reported that he had been
refused a copy of the health sheet breakdown (presumably for
perchlorethylene). Conway senior testified that the next day he
went to see Cleveland and Luckhurst. Luckhurst purportedly told
Conway that "you and little Troy is [sic] going to have to quit
stirring up the union and the company people over this perc".
Shirkey later told him that he knew of Troy, Jr.'s complaint
about the breakdown sheets.

 The senior Conway also testified about a later incident, on

March 24, 1989, following a complaint about alleged violations in
failing to provide rubber mats to protect welders from
electrocution. It is not disputed that Shirkey said in regard to
the complaint that it was "bull shit" and that he would have to
fire someone on the safety committee over this. It is also not
disputed that Shirkey on another occasion referred to a miner who
filed a "103(g)" safety complaint as a "dirty mother fucker".

 Within this framework of evidence it is clear that the

Complainant made protected safety and health complaints to a
representative of miners, Troy Conway, Sr., concerning the
failure of Peabody to provide "breakdown" or "MSDS" sheets
describing the hazardous nature of the chemical perchlorethylene
being used by the Complainant at that time. Furthermore the
testimony of Troy Conway, Sr., is undisputed that Shirkey
acknowledged to him that he knew of Troy, Jr.'s complaint to the
Union Safety Committee. Moreover the senior Conway's testimony
that Assistant Mine Superintendent Kenny Luckhurst told him that
"you and little Troy are going to have to stop stirring up the
union and the Company people over this perc" is not disputed.
When this evidence is considered in conjunction with the
undisputed testimony of the senior Conway that Shirkey cursed and
threatened other employees for reporting safety violations, it
may reasonably be inferred that Peabody management would have
been motivated to retaliate against the junior Conway for his
protected activities.

 The credible evidence also shows that in 1986, mine

management was reluctant to reveal to its lab personnel the
hazardous nature of the chemical perchlorethylene. Whether or not
the posting of warning signs and the issuance of a memorandum
preceded the Complainant's request of the specific "MSDS" warning
data issued by the chemical manufacturer it is clear that this
request triggered a retaliatory threat communicated to the
senior Conway by Assistant Mine Superintendent Luckhurst. It is
also clear that following these protected activities by the
Conways, additional protective gear was provided to lab personnel. Under the

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circumstances Conway has established a prima facie case of
unlawful discrimination. Pasula, supra.

 On the facts of this case however I find that the operator

has proven by its affirmative defense that it would have taken
the adverse action of laying-off the Complainant in any event for
the stated economic reasons and not based upon any protected
activity. Pasula, supra. The evidence in this regard is as
follows. Wesley Shirkey testified that he was sent in July 1984,
to supervise the Camp No. 9 Preparation Plant because the plant
had not been up-to-par. He explained that before the lay-offs in
October 1987, they had been receiving coal to be processed at the
No. 9 Preparation Plant from the Camp No. 1, No. 2, and No. 11
Mines. In October 1987, the Camp No. 11 Preparation Plant closed
down and the entire sampling process changed because the
analytical value of the coal changed. Accordingly testing was no
longer needed every 30 minutes and one senior lab technician job
on each shift was no longer needed. The lay-off of Conway and
another senior lab technician therefore followed.

 In determining which personnel would be laid off Shirkey

testified that he considered company-wide seniority and job
evaluations. According to the undisputed testimony of Shirkey,
Conway, Jr. was the second least senior lab technician
company-wide. As a result Conway and Paul Brown, the least senior
company-wide lab technician, were laid off. In addition to the
Complainant's lack of seniority, Shirkey noted that Conway had
been reprimanded for failing to perform significant job duties in
early 1987. Conway had reportedly falsified coal samples and
failed to have taken samples.

 Peabody Foreman William McNew testified that he was not

involved in the decision to lay-off employees in October 1987.
McNew testified that he caught Conway in September 1986, and
again in February 1987, failing to collect his required coal
samples. In February 1987 he verified Conway's neglect of duty by
marking the level and the weights of the samples in Conway's
sampling buckets. There was no change in the level of the
material in Conway's sampling buckets after several days and some
of the weights of the samples actually decreased. If proper
sampling was being performed the weights of the samples and the
quantity of samples in the buckets should have been increasing.
Conway was issued a letter of reprimand for this neglect in his
work and the related false entries he made in his logs.

 The operator's evidence in support of its lay off decision

is credible and has not been rebutted by Conway. Under the

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circumstances the operator has successfully defended itself by
affirmatively proving that it would have taken the adverse action
of laying off Mr. Conway in any event for unprotected reasons
alone. Pasula, supra., Robinette, supra.

                             ORDER

 Discrimination Proceeding Docket No. KENT 88-127-D is hereby

dismissed.

                              Gary Melick
                              Administrative Law Judge
                              (703) 756-6261

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. Section 105(c)(1) of the Act provides as follows:

      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.

~FOOTNOTE_TWO
2. Conway also testified that he complained to Shirkey in
1985 after he became sick from fumes in the preparation plant and
on another ocassion asked Shirkey for a fan to suck the coal dust
out of the raw coal room of the preparation plant where they
worked. While Conway at first alleged that because of these
complaints Shirkey retaliated by complaining that he was
"stirring up the lab people" Conway concedes that Shirkey later
told his father that he made a mistake and was no longer accusing
him (Conway) of stirring up the lab people as a result of these
complaints. Conway accordingly appears to acknowledge that these
accusations and activities no longer have a bearing on the
instant case.