Ross v. Shamrock Coal Company, Inc.

Plain-English summary

Shamrock Coal Company discharged miners Lonnie Ross and Charles Gilbert after workplace safety complaints and a dispute about moving electrical cables at its underground Kentucky coal mine. The Commission affirmed the finding that the miners' protected safety activity contributed to their discharges and that Shamrock did not prove they would have been discharged for the cable incident alone. It also affirmed the gross backpay determinations and tax-penalty awards. The Commission remanded the interest awards for clarification and possible recalculation, reversed the decision not to deduct unemployment compensation, and remanded the backpay awards for recalculation.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(2), 30 U.S.C. § 815(c)(3), 30 U.S.C. § 823(d)(2)(A)(iii)
• Outcome: The Commission affirmed the discrimination findings, gross backpay determinations, and tax-penalty awards, reversed the unemployment-compensation ruling, and remanded interest and backpay calculations.
• Key point: An operator's affirmative defense failed where the record supported a finding that protected activity contributed to the discharges and did not establish consistent discipline for comparable conduct.

Full text (FMSHRC public release)

CCASE:
LONNIE ROSS AND CHARLES GILBERT V. SHAMROCK COAL
DDATE:
19930624
TTEXT:

                               June 24, 1993

LONNIE ROSS and CHARLES GILBERT :
:
v. : Docket Nos. KENT 91-76-D
: KENT 91-77-D
SHAMROCK COAL COMPANY, INC. :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                 DECISION

BY: Holen, Chairman; Doyle and Nelson, Commissioners

  In these consolidated discrimination proceedings, brought under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)
("Mine Act" or "Act"), Shamrock Coal Company ("Shamrock") has sought review of
Administrative Law Judge William Fauver's decisions sustaining Lonnie Ross's
and Charles Gilbert's discrimination complaints and awarding them damages. 13
FMSHRC 1475 (September 1991)(ALJ); 14 FMSHRC 229 (January 1992)(ALJ). The
issues raised in Shamrock's petition for discretionary review are whether the
judge erred in: (1) determining that Shamrock failed to establish an
affirmative defense; (2) calculating complainants' gross backpay and interest
awards; (3) failing to deduct unemployment compensation from these backpay
awards; and (4) awarding reimbursement of tax penalties sustained by
complainants as a result of early withdrawal of funds from their profit-
sharing accounts.(Footnote 1) The Commission granted the petition and heard
oral argument.

  For the reasons set forth below, we affirm the judge's determination

that Shamrock failed to establish an affirmative defense. We also summarily
affirm his determination of lost wages and his award reimbursing complainants
for the tax penalties. We remand for clarification and, if appropriate,
recalculation of the judge's interest awards. Finally, we reverse the judge's
determination that unemployment compensation should not be deducted from the
backpay awards and remand for recalculation of those awards.

1 In its brief on review, Shamrock addresses issues other than those raised
in its petition for discretionary review. We consider only the issues raised
in Shamrock's petition. 30 U.S.C. 823(d)(2)(A)(iii), (B) & (C); 29 C.F.R.
2700.70(f)(1993)

                                  I.

                  Factual and Procedural Background

  Shamrock operates the Greasy Creek No. 10 mine, an underground coal mine

in Kentucky. Ross, Gilbert, and Mike Europa worked on a third shift
maintenance crew that prepared a section for coal production on the following
shift. Ross was the crew leader.

  In carrying out their duties, Ross and Gilbert, who were not certified

electricians, regularly performed electrical work without supervision.
13 FMSHRC at 1476. They complained about such work to their crew foremen,
without result. 13 FMSHRC at 1477. In 1989, the mine began two ten-hour
production shifts, leaving only four hours during non-production time for the
maintenance crew to perform work previously requiring eight hours. Id. Ross
and Gilbert complained to Foreman Ralph Bowling and to Mine Superintendent Don
Smith about having too much work to do in the allotted time and requested
assistance. Id. Bowling and Smith did not address their complaints. Id.

  On July 18, 1990, before an inspection by the Department of Labor's Mine

Safety and Health Administration ("MSHA"), Smith asked Ross to countersign a
foreman's name to a preshift report. 13 FMSHRC at 1477. When Ross refused,
Smith became angry and signed the foreman's name himself. Id. When Europa
was on vacation, Bowling refused Ross and Gilbert's request for a replacement,
stating that Ross would have to perform Europa's duties in addition to his
own. 13 FMSHRC at 1478.

  On July 26, 1990, Ross, Gilbert, and Dwayne Woods, a trainee, were

required to move a power center, which involved moving three electrical
cables. At approximately 6:00 a.m., Ross and Gilbert still had to move two
cables, hook up the power center and connect the cables to make the section
ready for the day shift at 7:00 a.m. 13 FMSHRC at 1478. Ross decided to move
the cable by using a scoop. Id. Following Ross's orders, Gilbert helped Ross
place the cable under the scoop's batteries and positioned the scoop's
hydraulic jacks in an attempt to keep the weight of the batteries off the
cable. 13 FMSHRC at 1478-79. Gilbert then drove the scoop. 13 FMSHRC at
1479.

  Miners on the day shift discovered that one of the cables had been

damaged. 13 FMSHRC at 1479. A mechanic quickly repaired the cable and no
lost work time resulted. Tr. 630-31. When Smith heard about the incident, he
ordered Bowling to determine what had occurred and, if the cables had been
moved under scoop batteries, to fire the person responsible. 13 FMSHRC at
1479.

  Upon questioning by Bowling on July 31, 1990, Gilbert admitted that he

had moved the cables under the scoop batteries. 13 FMSHRC at 1479; Tr. 33-34.
Bowling told Gilbert that he was fired. 13 FMSHRC at 1479. After Gilbert
reported that Ross had told him to use the scoop batteries, Ross was
questioned and stated that he would take the blame. 13 FMSHRC at 1479-80.

  Following a private discussion between Smith and Bowling, Ross and

Gilbert were given a two-week suspension without pay, instead of termination.
13 FMSHRC at 1480. Ross accepted the two-week suspension, but Gilbert stated
that he did not believe that he should be suspended for two weeks and that he
was "tired of getting jumped on ... by every boss ... and having to work like
a dog and not having time to do [his] job...." 13 FMSHRC at 1480; Tr. 36.
Gilbert stated that, if he had accumulated enough time that year to qualify
for profit-sharing, the company could fire him. 13 FMSHRC at 1480. It was
then determined that Gilbert had accrued enough time, but Bowling told Smith
and Gilbert that the company could not fire one without firing the other. Id.
Gilbert said that he would accept the two-week suspension because he did not
want Ross to lose his job. Id. Smith became angry and told Bowling to fire
both of them. 13 FMSHRC at 1480, 1487. Bowling did so. Ross and Gilbert
subsequently withdrew the funds from their profit-sharing accounts.

  Ross and Gilbert filed discrimination complaints with MSHA, pursuant to

section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2), alleging that they had
been discriminatorily discharged. MSHA investigated the complaints and
determined that no discrimination had occurred. Ross and Gilbert then filed
their own complaints with the Commission, pursuant to section 105(c)(3) of the
Act, 30 U.S.C. 815(c)(3), and the matter was heard by Judge Fauver.

  The judge determined that Ross and Gilbert established prima facie cases

of discrimination. 13 FMSHRC at 1487. The judge found that their complaints
regarding electrical work and not having enough time or assistance to perform
their jobs, Ross's refusal to falsify the preshift examination report, and
Gilbert's complaints on July 31 about excessive work pressures, constituted
protected activities under the Act. 13 FMSHRC at 1484-86. He also found that
Smith had developed an animus towards complainants because of their protected
activities. 13 FMSHRC at 1487. The judge determined that their terminations
were motivated, at least in part, by their protected activities, and that
Shamrock failed to establish an affirmative defense to the complainants' prima
facie case. 13 FMSHRC at 1486-88. Accordingly, the judge concluded that they
had been discriminated against in violation of the Mine Act. He ordered Ross
and Gilbert reinstated and awarded them monetary damages.

                                  II.

                        Disposition of Issues

   A.   Affirmative Defense

  On review, Shamrock does not challenge the judge's determination that

the complainants established a prima facie case of discrimination. Shamrock
argues that the judge erred in finding that it had not affirmatively defended
and that Ross and Gilbert would have been discharged for their unprotected
activity alone, i.e., for moving the cables under the scoop batteries.
Shamrock contends that the judge ignored or overlooked evidence that other
employees had been terminated for engaging in the same or similar conduct,
that Ross and Gilbert had been warned not to place cables under scoop
batteries, and that their conduct violated company policy.

  The general principles for analyzing a discrimination case under the

Mine Act are well settled. A miner alleging discrimination establishes a
prima facie case of prohibited discrimination by proving that he engaged in
protected activity and that 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, 2797-800 (October 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 (April 1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse action was in
no part motivated by protected activity. Pasula, 2 FMSHRC at 2799-800. 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 for the
unprotected activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18.

  Having found that Smith's decision to discharge Ross and Gilbert was

"motivationally connected with their substantial protected activities," the
judge evaluated whether the complainants would have been discharged, even if
they had not engaged in protected activities, for the cable incident alone.
He concluded that they would not have been discharged. 13 FMSHRC at 1487-88.

  As the Commission noted in Bradley v. Belva Coal Co., 4 FMSHRC 982, 993

(June 1982), an operator may attempt to prove it would have disciplined a
miner for unprotected activity alone by showing prior consistent discipline
for similar infractions, the miner's unsatisfactory work record, prior
warnings to the miner, and rules or practices prohibiting the conduct at
issue. Here, there is no evidence that Shamrock had a consistent practice of
disciplining miners for damaging electrical cable. Although one miner had
been fired for negligently damaging a cable, another had not. Tr. 155, 252-
53, 336. A third miner had been fired only after repeatedly damaging cable.
Tr. 334-35. The judge discredited Smith's testimony that he did not know who
had damaged the cable when he ordered Bowling to fire whoever was responsible;
substantial evidence supports this finding. 13 FMSHRC at 1488; Tr. 146,
204-05, 513-14, 646-47.

  As to the miners' work histories, the judge found that Bowling had

promoted Ross two weeks before his termination and, at that time, stated that
Ross was one of his best workers. 13 FMSHRC at 1477. Bowling testified that
at the time of Ross's promotion, he felt that he would rather have Ross than
any two other employees. Tr. 439. Ross and Gilbert were considered good
employees, and neither had received any written reprimands during the nine
years each had been employed by Shamrock. Tr. 249, 286, 315, 439.

  Although the judge made no specific findings as to whether Ross and

Gilbert had been warned not to move cables under scoop batteries, he found
that they both knew that this was not a good or accepted practice. 13 FMSHRC
at 1479. The judge also found, however, that Ross had seen foremen move cable
under scoop batteries when they were hurried, as Ross and Gilbert were. Id.
In addition, the judge found that Gilbert had engaged in the conduct at issue
because he was following the orders of his crew leader, Ross, and that there

was no precedent at the mine for suspending or discharging a miner under such
circumstances. 13 FMSHRC at 1479, 1488 n.4. Indeed, Smith acknowledged that
Shamrock had initially offered Gilbert reinstatement after it learned that
Gilbert had been following Ross's orders. Tr. 394.

  Thus, contrary to Shamrock's assertions, the judge did not ignore

evidence pertinent to Shamrock's affirmative defense. Applying the factors
set forth in Bradley, we conclude that substantial evidence supports the
judge's finding that Shamrock failed to establish an affirmative defense.
Accordingly, we affirm the judge's conclusion that the discharges violated the
Mine Act.

  B.    Gross backpay and interest

  Shamrock argues that the judge miscalculated complainants' gross backpay

and the interest thereon. Gross backpay is the sum a miner would have earned
but for the discrimination, less his net interim earnings. Gross backpay
encompasses not only wages, but also any accompanying fringe benefits,
payments, or contributions constituting integral parts of an employer's
overall wage-benefit package. See, e.g., Secretary on behalf of Dunmire &
Estle v. Northern Coal Co., 4 FMSHRC 126, 142 (February 1982). The judge
calculated Ross's and Gilbert's gross backpay by considering their hourly rate
of pay, regular and overtime hours they averaged each week, and their usual
bonuses. 14 FMSHRC at 229-30. Shamrock has offered no specific explanation
of the asserted miscalculations nor has it set forth the basis of the
alternative figures that it submits. We decline to overturn the judge's gross
backpay determinations on the basis of Shamrock's unsupported assertion.
Accordingly, we summarily affirm the judge's determinations of gross backpay.

  In Loc. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504-05

(November 1988), the Commission abandoned use of the adjusted prime rate,
originally adopted in Secretary on behalf of Bailey v. Arkansas-Carbona Co.,
5 FMSHRC 2042, 2050-54 (December 1983), and announced that the short-term
federal rate applicable to the underpayment of taxes would be used in
calculating interest on backpay. The judge did not indicate in his
supplemental decision the manner in which he calculated interest on Ross's and
Gilbert's backpay awards but, in his decision on the merits, he cited
Arkansas-Carbona and instructed the parties to attempt to stipulate the amount
of interest due at the "IRS adjusted prime rate for each quarter." 13 FMSHRC
at 1489 n.5. We remand the interest awards to the judge for clarification.
If the judge applied the short-term federal rate applicable to the
underpayment of taxes in accord with Clinchfield, we affirm the interest
awards. If not, the judge should recalculate the interest awards.

  C.    Unemployment Compensation

  Shamrock argues that the judge erred as a matter of law in not deducting

complainants' unemployment compensation from gross backpay. The Commission
recently decided in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 616-18
(April 1993), that, as a matter of agency policy, unemployment compensation,
like interim earnings, should be deducted in determining backpay awards.
Accordingly, we remand this matter to the judge so that he may determine

complainants' unemployment compensation benefits and deduct those amounts in
determining their backpay awards.

  D.    Tax Penalties

  The judge found that financial constraints resulting from their wrongful

discharges caused Ross and Gilbert to withdraw funds from their profit-sharing
accounts, and ordered Shamrock to reimburse them for the tax penalties
resulting from early withdrawal. 14 FMSHRC at 230. Shamrock argues that the
judge erred as a matter of law in so compensating Ross and Gilbert. Whether
reimbursement for tax penalties should be included in backpay awards is an
issue of first impression before the Commission and one committed to the
Commission's discretion. Shamrock has failed, however, to advance any
supporting argument upon which the judge's determination should be disturbed.
Accordingly, without implying how we might rule on this issue in the future,
we affirm the judge's award of tax penalties to Ross and Gilbert.

                                 III.

                              Conclusion

  For the reasons discussed above, we affirm the judge's conclusion that

Shamrock failed to establish an affirmative defense. We also summarily affirm
the judge's determination of gross backpay and his award of the tax penalties.
We remand the interest awards to the judge for clarification and, if
appropriate, recalculation. We reverse the judge's determination that
unemployment compensation received by Ross and Gilbert should not be deducted
when determining their backpay awards and remand for recalculation of the
awards.

                                Arlene Holen, Chairman


                                Joyce A. Doyle, Commissioner


                                L. Clair Nelson, Commissioner

Commissioner Backley, concurring in part and dissenting in part:

  I concur with the majority's decision on all issues except for the

majority's holding regarding unemployment compensation. For the reasons set
forth in my dissent in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 621-26
(April 1993), I would affirm the judge's determination to not deduct
unemployment compensation received from the backpay awards.

                                Richard V. Backley, Commissioner