Secretary of Labor on behalf of Robert Vaughn v. Sumco, Inc. and R.E. Summers

Plain-English summary

Robert Vaughn worked for Sumco, Inc. and R.E. Summers at a coal reclamation operation. Judge James A. Broderick found that Summers discharged Vaughn in part because the operator was concerned that Vaughn lacked required safety training and that MSHA might issue another citation or closure order. The judge held that the discharge violated the Mine Act, awarded back pay with interest from June 30 through December 4, 1988, and assessed a $100 civil penalty. The decision directed a later order to determine the back-pay amount and declare the decision final, which occurred in the separately released supplemental order.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(g), 815(c), and 825; 30 C.F.R. §§ 48.23 and 48.23(b)
• Outcome: Discrimination was found, back pay with interest was ordered, and a $100 civil penalty was assessed, with the exact back-pay amount reserved for a later order.
• Key point: A discharge motivated in part by an operator's concern about required safety training can violate the Mine Act's protection against discrimination.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SUMCO AND R.E. SUMMERS
DDATE:
19890602
TTEXT:

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

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 89-28-D
ON BEHALF OF ROBERT VAUGHN,
COMPLAINANT

          v.

SUMCO, INC. AND R.E. SUMMERS,
RESPONDENTS

                                 DECISION

Appearances: Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
on behalf of Complainant; Rodney E. Buttermore,
Jr., Esq., Forester, Buttermore, Turner & Lawson,
Harlan, Kentucky, on behalf of Respondents.

Before: Judge Broderick

STATEMENT OF THE CASE

 On November 18, 1988, the Secretary of Labor (Secretary)

filed a complaint on behalf of Robert Vaughn under section 105(c)
of the Federal Mine Safety and Health Act of 1977 (the Act). The
complaint alleges that Vaughn was discharged on June 30, 1988,
for activity protected under the Act. In addition to the
complaint, the Secretary filed an Application for Temporary
Reinstatement. On November 28, 1988, I issued an order directing
Respondent Sumco, Inc. to immediately reinstate Vaughn to the
position from which he was discharged or to an equivalent
position. On December 16, 1988, Respondent Sumco filed a answer
to the complaint and a request for hearing. Pursuant to notice
the case was called for hearing in Harlan, Kentucky on March 21,
1989. Robert Vaughn, Richard Davis, Ronnie Brock, George Vaughn,
and Winston Madden testified on behalf of Complainant. Robert
Earl Summers and Dianne Swanner testified on behalf of
Respondents. Both parties have filed post hearing briefs. I have
considered the entire record and the contentions of the parties
and make the following decision.

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FINDINGS OF FACT

 Respondent R.E. Summers incorporated Sumco, Inc. some time

in 1975. The operation involved in this proceeding commenced in
January 1988. Summers assumed that the corporation was valid and
continuing. In fact it was not, because it had failed to pay
certain state fees. Legally, Summers was operating as an
individual proprietor. The work consisted of reclaiming coal from
an existing refuse pile, by removing slate and other waste, and
washing and crushing the coal. The actual coal preparation work
commenced about February 1, 1988. Approximately 15 miners were
employed in the operation.

 Complainant Robert Vaughn began working for Sumco on

February 10, 1988, as a night watchman at the mine site. On or
about May 9, 1988, he was transferred to a job as slate picker,
working on the afternoon shift. He was paid $4.00 an hour. His
duties involved removing slate and rock from the refuse on a
picking table and throwing it into a hole at the end of the
table. Robert Vaughn had not received any surface mine safety
training prior to beginning this job, but in 1984 he had received
inexperienced new miner training for underground mines.

 Shortly after it began to operate the coal reclamation

project, Sumco engaged a Mr. Arnold Gilbert who was to perform
noise and dust monitoring and to set up a training plan for the
employees. He contacted the Harlan Vocational School to conduct
safety training classes, but was unable to arrange a program
until about August 1, 1988.

 On or about June 8, 1988, complainant Vaughn injured his

thumb in a fall at home. He was treated in a hospital emergency
room and a splint was placed on his thumb. He was excused from
work because of the injury. During the time he was off work, he
was called to jury duty. On June 22, 1988, while still under
treatment for his thumb, he visited the mine site after returning
from jury duty. The mine site was near his residence, and he rode
to the mine with a truck driver. Two federal inspectors were at
the mine at this time. Summers saw Vaughn and ordered him off the
mine property. Vaughn testified that he was told to leave because
the inspectors "were checking mining training papers." (Tr. 14)
Summers testified that he told him to leave because he was in the
loading area without a hard hat or hard toed shoes. Summers
admitted that he "possibly told him they [the inspectors] were
there checking papers." (Tr. 113). I find as a fact that Summers
directed Vaughn to leave the mine site because he was not
properly attired and because the Federal inspectors were checking
the miners' training papers. On June 23, 1988, a citation was
issued to Sumco for failure to submit a training plan to MSHA.
The citation was terminated the

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same date when a plan (prepared by Arnold Gilbert) was submitted.
The training was to commence in August. Before the training
began, citations were issued to Sumco, because some of the miners
did not have up-to-date safety training papers.

 On June 27 or 28, Vaughn took a medical record indicating

that he could return to work on June 28 to the mine and asked
Summers if he could resume work. Summers told him he could return
the following day. Vaughn later realized he had jury duty the
following day and he called Summers at home. He was directed to
return on June 30. Vaughn did so, bringing with him another
doctor's certificate, authorizing his return to work June 28,
1988. There is a dispute as to whether his thumb was still in a
splint. I find that it was not. Summers told Vaughn to report for
work the following Monday. Vaughn asked whether he would receive
the 70 cent per hour premium that others received on the evening
shift. Summers rejected the request and there was a heated
discussion between the two concerning the request and the
fairness of paying Vaughn less than the other miners. Finally,
Summers told Vaughn to go on home "since he didn't have any
training and he still had his thumb in a cast." (GX5). Vaughn
left the office and was told to leave his hard hat which he threw
back in through the door. Summers testified that the reference to
training in his statement to the MSHA investigator (GX5) meant
work experience and not safety training. I reject this
explanation since the same word is used three times in the three
page statement clearly referring to safety training. I find that
Summers discharged Vaughn (Vaughn did not quit) for two reasons:
(1) he was upset at Vaughn's request for a raise because Summers
felt he was teaching Vaughn a new job "so he could go on to do
something with his life" (Tr. 117); (2) Sumco had been cited for
not having submitted a training plan and for having employees who
had not received the proper training, and Summers was concerned
about receiving another citation.

 The Secretary filed an application for temporary

reinstatement, and I issued an order on November 28, 1988, to
Sumco to reinstate Robert Vaughn. He returned to work on December
5, 1988. He worked December 5, 6 and 8, shovelling around the
belt lines on the washer. On December 9, 1988, Vaughn and 11 or
12 others were laid off because a defect in Sumco's permit from
the State Department of National Resources prevented it from
continuing the job. Some employees were retained on an irregular
basis to wash screened coal and dismantle the equipment. In early
January 1989, the entire operation ceased. I find as a fact that
Respondents did not have work for which complainant Vaughn was
qualified after December 8, 1988.

ISSUES

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1. Whether Complainant Vaughn was discharged for activities or
status protected by the Act?

   2. If so, to what remedies is he entitled?

CONCLUSIONS OF LAW

                                 I

 At all times pertinent hereto, Respondents were mine

operators and Complainant Vaughn was a miner. They were subject
to and protected by the Mine Act, and specifically section 105(c)
of the Act. I have jurisdiction over the parties and subject
matter of this proceeding.
II

 Section 115 of the Act requires each mine operator to submit

a training plan to MSHA for approval. The Act requires that such
a training plan provide among other things that new miners having
no surface mining experience shall receive no less than 24 hours
of training if they are to work on the surface. It requires that
the training be provided during normal working hours and that
miners be paid at their normal rates while receiving such
training. 30 C.F.R. 48.23 requires that in the case of a new
mine or a reopened or reactivated mine, the operator shall have
an approved training plan prior to opening, reopening or
reactivating the mine. Each new miner shall receive no less than
24 hours of training before being assigned to work duties, unless
the MSHA District Manager permits a portion of the training to be
given after assignment to work duties. The required courses are
set out in 48.23(b).

                                III

 Section 104(g) of the Act provides that if an inspector

finds a miner who has not received the safety training required
under Section 115, he shall issue an order requiring that the
miner be withdrawn and prohibited from reentering the mine until
he has received such training. A miner who is ordered withdrawn
shall not be discharged or otherwise discriminated against, nor
shall he suffer a loss of compensation during the period of
training. The Commission held in Secretary/Bennett v. Emery
Mining Corp., 5 FMSHRC 1391, 1395, (1983), rev'd in part sub nom.
Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155 (10th Cir.
1986) that Section 105(c) of the Act "prohibits interference with
rights provided by the Act, including rights provided under
section 115." Unlike the situation in Emery, where applicants for
employment wre involved or in Secretary/Williams v. Peabody Coal
Co., 822 F.2d 1134 (D.C. Cir. 1987), involving former

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employees who had been laid off, Vaughn was clearly a miner when
he was discharged, and therefore was protected under section 115.

                               IV

 In order to establish a prima facie case of discrimination

under section 105(c), a complainant has the burden of
establishing that his activity or status was protected under the
Act and that the adverse action complained of was motivated in
any part by the protected activity or status. See
Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980)
rev'd on other grounds sub. nom. Consolidation Coal Co. v.
Secretary, 663 F.2d 1211 (3d Cir. 1981). In the present case, I
have found as a fact that the discharge of complainant was
motivated in part because Respondent had failed to provide the
statutorily mandated training. Therefore, complainant has
established a prima facie case of discrimination. The operator
may rebut such a prima facie case if he establishes that he was
also motivated by unprotected activity, and that he would have
taken the adverse action because of the unprotected activity
alone. Pasula, supra; Secretary/Robinette v. United Catle Coal
Co., 3 FMSHRC 803 (1981). The evidence in the present case does
establish that Respondent's discharge of complainant was
motivated in part by unprotected activity, namely by Summer's
reaction to complainant's request for a 70 cents an hour raise.
Respondent Summers has not, however, carried his burden of
establishing that he would have discharged complainant for this
reason alone. On the contrary, the evidence is clear that a major
factor motivating his visiting the adverse action on complainant,
was the fact the complainant had not received safety training and
Respondent feared that he would receive another citation or
closure order because of this. I conclude that Complainant was
discharged in violation of section 115 and 105(c) of the Act.

                               V

 Complainant is entitled to back pay with interest from June

30, 1988 to December 4, 1988. I conclude that he was laid off for
economic reasons on December 8, 1988, and is not entitled to back
pay thereafter. The evidence in the record is not sufficiently
clear as to the monetary amount of the back pay to which
complainant is entitled. The interest on the back pay should be
determined in accordance with the Commission decision in UMWA v.
Clinchfield Coal Co., 10 FMSHRC 1493 (1988).

 In determining an appropriate penalty for the violation, I

am considering the facts that Respondent began operating in
January 1988 and was not familiar with the MSHA training
requirements, that the Harlan MSHA office was confused as to the

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training requirements, and that Respondent has ceased operating
the mine. I conclude that a penalty of $100 is appropriate.

                             ORDER

 Based on the above findings of fact and conclusions of law

IT IS ORDERED:

 1. Respondents shall pay to claimant Vaughn back wages from

June 30, 1988 to December 4, 1988 inclusive, with interest
thereon computed in accordance with the Commission decision in
UMWA v. Clinchfield Coal Co., supra. Counsel shall confer within
15 days of the date of this decision, in an effort to stipulate
the amount due complainant under this order.(FOOTNOTE 1) If they are
unable to so stipulate, Complainant shall submit within 30 days
of the date of this decision, its statement of the amount due.
Respondent may respond within 10 days thereafter.

  2. Respondents shall, within 30 days of the date this

decision becomes final, pay a civil penalty in the amount of
$100.

 3. The above decision will not become final until a

subsequent order is issued awarding back pay and declaring the
decision to be final.

                         James A. Broderick
                         Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. Respondents' stipulation of the amount due hereunder will
not, of course, limit their right to seek review of this
decision.