Nally & Hamilton Enterprises, Incorporated
Nally & Hamilton Enterprises, Incorporated (FMSHRC KENT 92-259-D): Safety retaliation complaint sustained after dust-related refusal
Apply this to your situation
This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Clayton Nantz, a bulldozer operator, complained that a broken rear window exposed him to dust and made it difficult to see while working. After the window was not repaired, he refused to continue operating the dozer in those conditions and was told to operate it or go home. Judge George A. Koutras found that the refusal was reasonable, that Nantz was constructively discharged, and that the discharge violated section 105(c) of the Mine Act. The judge rejected the proposed $8,000 penalty, assessed $1,000, and ordered reinstatement, back pay and benefits, medical-expense compensation, and expungement of termination records, while retaining jurisdiction over the remedial details.
Decision snapshot
- Governing provisions: 30 U.S.C. §§ 815(c)(1)-(3) and 820(a); 30 C.F.R. § 100.3
- Outcome: The discrimination complaint was sustained, the proposed $8,000 penalty was reduced to $1,000, and reinstatement and other remedies were ordered.
- Key point: A miner's refusal to work in credibly hazardous dust conditions can be protected activity when the operator does not correct the condition.
Full text (FMSHRC public release)
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SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-259-D
ON BEHALF OF CLAYTON NANTZ, :
Complainant : BARB CD 91-24
v. :
: Gray's Ridge Job
NALLY & HAMILTON ENTERPRISES, :
INCORPORATED, :
Respondent :
DECISION
Appearances: MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Complainant;
David O. Smith, Esq., Marcia A. Smith, Esq.,
Corbin, Kentucky, for the Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a complaint of alleged
discrimination filed by the Secretary of Labor against the
respondent pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). The
complaint was filed on behalf of Clayton Nantz, a former employee
of the respondent who claims that he was discharged on or about
April 16, 1991, because he refused to continue to operate a
bulldozer that had the back window broken out, a condition which
he believed constituted a hazard to his health and safety.
The respondent filed a timely answer denying any
discrimination, and contending that Mr. Nantz voluntarily quit
his job. In its defense, the respondent asserted that the
refusal by Mr. Nantz to continue to operate the bulldozer in
question was not based upon a good faith reasonable belief that
his health or safety were threatened. The respondent also
contended that the initial complaint, and the amended complaint
seeking a civil penalty assessment for the alleged violation of
section 105(c) of the Act, were not timely filed as required by
the Act and the Commission's Rules.
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A hearing was held in Cumberland Gap, Tennessee, and the
parties filed posthearing briefs. I have considered their
respective arguments in the course of my adjudication of this
matter.
Issues
The issues in this case include the following: (1) whether
the complainant was engaged in protected activity when he
complained about the bulldozer in question and refused to operate
it because he believed it was unsafe; (2) whether his work
refusal was reasonable; (3) whether he timely communicated his
safety complaints to mine management; and (4) Whether he quit or
was fired from his job. Additional issues raised by the parties
are identified and disposed of in the course of the this
decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. 301, et seq.
2. Sections 105(c)(1), (2) and (3) and 110(a) and (d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(c)(1),(2) and (3).
3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Stipulations
The parties stipulated to the following (Exhibit J-1):
1. The Commission has jurisdiction in this matter.
2. The respondent, a Kentucky Corporation, engaged in the
production of coal, and is therefore an "operator" as
defined by the Act.
3. The respondent's Gray's Ridge Job Mine, is a surface
mine, the products of which enter commerce within the
meaning of the Act.
4. During the year 1990, the Gray's Ridge Job Mine produced
203,536 tons of coal, and the respondent corporation, as
controller, produced 856,573 tons of coal in 1990.
5. Clayton Nantz was employed by the respondent as a
bulldozer operator at its Gray's Ridge Job Mine, and is a
"miner" within the meaning of the Act.
6. At the time he ceased to be employed by the respondent,
Clayton Nantz was being paid at the rate of $10.50 per hour
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for regular hours worked and $15.75 per hour for overtime
hours worked.
The Complainant's Testimony and Evidence
Clayton Nantz testified that he was employed by the
respondent on two or three occasions and that his most recent
employment period was from June, 1990, to April 16, 1991. He
stated that he has worked in the mining industry for 18 years as
a heavy equipment operator, including dozers, loaders, and
drills. He was laid off on the previous occasions because he had
less seniority and that during his last period of employment with
the respondent he operated a D8-L bulldozer, with an enclosed
cab, and he described his duties (Tr. 11-14). Mr. Nantz stated
that he was paid a regular rate of $10.50 an hour, and $15.75 an
hour for overtime, and that he worked, five and six days a week,
10 hours a day. The regular work week was 40-hours, and anything
over that was overtime. He worked the second shift from
3:30 p.m. to 3:30 a.m., moving dirt and rocks with the bulldozer
(Tr. 13-15).
Mr. Nantz stated that the back window of his bulldozer was
knocked out when a truck backed into the machine during the day
shift and he was not at work when this occurred. Mr. Nantz
stated that his shift foreman Henderson "Hen" Farley informed him
that the window had been broken out and that he would have it
replaced. The missing window resulted in problems which
Mr. Nantz described as "choking, dust coming in, smothering
headaches, just couldn't see" and he explained that the dust
generated by the trucks when materials were dumped made it
difficult for him to see the trucks backing in to him and that
before the window was knocked out "the dust wasn't near as bad"
(Tr. 17).
Mr. Nantz stated that foreman Farley was on the job for
approximately one week before he left for another job. However,
during the week that Mr. Farley served as foreman Mr. Nantz
stated that he complained to him two or three times about the
broken window and that Mr. Farley told him that "We'll try to get
it, he said he'd get a glass ordered to put it in" (Tr. 18).
Mr. Nantz confirmed that the window was not fixed when Mr. Farley
left the job (Tr. 19).
Mr. Nantz stated that Wayne Fisher took over as foreman
after Mr. Farley left, and that he complained to Mr. Fisher on "a
regular basis every other day or so" about the broken window and
informed him that "I couldn't stand the dust and the choking,
smothering, gagging and going on from the dust" (Tr. 20).
Mr. Nantz stated that he wanted the window fixed "Because the
dust was so bad, it got in there and it just, you know, I
couldn't breath. It was choking me to death, I was smothering,
and it was causing me, you know, health problems, damage, I
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couldn't take it" (Tr. 21). He also stated that he continued
having problems seeing the trucks and that Mr. Fisher assured him
that the window would be fixed (Tr. 20-21).
Mr. Nantz stated that four weeks passed from the time the
window was broken out and the last night of his employment when
he was discharged (Tr. 21-22). He described his appearance after
his work shift both before and after the window was knocked out,
and he stated that the water truck had a mechanical problem and
was not operated after the dozer window was broken out (Tr. 23).
Mr. Nantz stated that when he reported for work on April 16,
1991, he asked Mr. Fisher if the window had been repaired and
Mr. Fisher informed him that it had not. Mr. Nantz then informed
Mr. Fisher that he did not want to operate the machine in the
dust with the window broken out and asked for other work.
Mr. Fisher informed him that he had no other bulldozers and
suggested that Mr. Nantz might be able to operate a loader for an
hour or so, but that he would then have to operate the dozer with
the broken window. Mr. Nantz then informed Mr. Fisher that he
did not want to operate the dozer in the dust and gave Mr. Fisher
his phone number and asked him to call him when the window was
replaced because he did not want to operate the dozer without a
window because "it was just so dusty, I couldn't breathe, I
couldn't take it" (Tr. 26).
Mr. Nantz stated that he next returned to the mine one or
two nights later and again asked Mr. Fisher if the window had
been repaired. Mr. Fisher informed him that the window was not
repaired and stated "The dozer's out there, do you want to run it
like it is?" and "Either run it like it is or go to the house.
You're fired if you don't run it" (Tr. 27-28). Mr. Nantz stated
that he then picked up his check and went home and Mr. Fisher
never called to tell him that the dozer had been repaired
(Tr. 27).
Mr. Nantz stated that after his last evening's employment
with the respondent he looked for other work and he explained his
efforts in this regard and confirmed that he found other work
(Tr. 27-30). He also confirmed that his hospitalization
benefits ended when he was discharged by the respondent and that
he has incurred medical expenses since that time (Tr. 30-31).
On cross-examination, Mr. Nantz testified about his prior
employment and earnings with the respondent (Tr. 31-33).
Mr. Nantz confirmed that he has operated an open cab dozer for at
least nine years and that he would be exposed to dust while
operating such a dozer. He stated that an enclosed cab is more
comfortable because of the air conditioning and heating. He
confirmed that he wore dust masks while operating equipment
without a cab enclosure (Tr. 34-37).
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Mr. Nantz explained the work that he was doing with the
dozer in April 1991, and he confirmed that he had operated the
machine with the doors open when the batteries overcharged and
the doors would not stay shut, or when the air conditioning was
putting out hot air. He explained that he would strap the doors
together and denied that he ever operated the machine in dust
with the doors open. Mr. Nantz could not recall that he ever
told Mr. Farley that he strapped the doors open because he could
not stand to be enclosed in the cab, but he stated that "I could
have said that I don't like to be housed up, you know, when the
heater's hot or something, maybe I said something like that, but
I don't know" (Tr. 40-42).
Mr. Nantz stated that except for a possible absence for
illness he never "laid off" or missed work during the time the
window was broken because of any dusty conditions, and he stated
that "You didn't lay off up there, if you did, you didn't have a
job" (Tr. 42-43). Mr. Nantz confirmed that he never made any
notes of the specific days that he asked Mr. Farley about the
broken window, and that he did not document the specific number
of days that the window was broken out of the machine (Tr. 44).
Mr. Nantz further confirmed that when his deposition was taken he
stated that the window was out three to four nights before
Mr. Farley left, but that he was not positive about this and that
it may have been out for four to seven days before Mr. Farley
left. Mr. Nantz also stated that Mr. Fisher was on the job for
two weeks while he operated the dozer with the broken window
(Tr. 45-48).
Mr. Nantz confirmed that he filed a worker's compensation
claim for silicosis on May 24, 1991, against the respondent
claiming that he was totally and permanently disabled and unable
to work, but that his claim was denied (Tr. 49-55; Exhibits R-2
through R-4). Mr. Nantz further testified about his subsequent
employments, and he also confirmed that he drew some unemployment
benefits (Tr. 56-63). Mr. Nantz stated that during his
employment with the respondent he worked a fifty-hour regular
week, and eight or eight and one-half hours on Saturday
(Tr. 64-66).
Mr. Nantz described the damage sustained by the dozer window
when it was knocked out. He stated that there was "very little"
frame damage, and he confirmed that within a day or two after the
window was damaged the mechanics "done what they could do" to
straighten out the frame so that the glass would fit back in. He
believed that the mechanics on the job replaced the window, but
he did not know when this was done. Mr. Nantz confirmed that the
frame was straightened out while Mr. Farley was still on the
job, and while it was not perfect, he believed that it would have
held a new window in place
(Tr. 68).
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Mr. Nantz believed that he initially refused to operate the
bulldozer during his second shift on Monday, April 15, 1991, and
that he spoke to Mr. Fisher that evening. Mr. Nantz confirmed
that Mr. Fisher offered to let him run a highlift for an hour and
one-half, and he also offered to water his work area with one
load of water. Mr. Nantz characterized one load of water as
"like pouring a cup of coffee out in that much dust" (Tr. 70).
Mr. Fisher also mentioned the use of clear plastic over the back
window area of the dozer, but Mr. Nantz indicated that he had
tried this at another mining operation and could not see through
the plastic material, particularly at night with rain and muddy
conditions. He also indicated that he did like plexiglass
because it gets scratched up, and with the accumulated dust, he
cannot see through it (Tr. 70-72) Mr. Nantz stated that he did
not request a dust mask or ear plugs because he thought the
broken window would be replaced (Tr. 73). Mr. Nantz further
explained his refusal to operate the dozer as follows at
(Tr. 74-75):
A. (Interposing) I wasn't going to operate in that kind of
dust, I couldn't take it, you know, it was just like turning
a blower in your face when them trucks come back through
there and fan that dust, and there was no way I could live
and stand that.
Q. But you used these dust masks on other jobs?
A. There was never dust on other jobs like that.
Q. This is the dustiest job in your twenty (20) years?
A. We always used trucks on this job, on the other jobs,
nobody hardly ever used over one (1) truck years ago. And
this job had a lot of rubber tired equipment, and they moved
more dirt more than any other job I ever seed, because it
had more trucks.
Q. Well, there's two (2) trucks up there wasn't there?
A. Yeah, but everybody else I ever have worked for, would
haul maybe a mile down the road and dump into a fill.
* * * * * * *
Q. Now, you could have operated the 980 loader that they
offered to you; couldn't you?
A. For an hour and a half.
Q. But you didn't want to do that?
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A. Not get back out in that dozer, not the rest of the
night, eight (8) hours in that dust.
Q. And you didn't want to -- you weren't interested in them
watering the area with a water truck?
A. One load wouldn't have even reached to me.
Mr. Nantz confirmed that sometime in June or July, 1991, he
spoke with Mr. Farley at the respondent's Leatherwood strip
mining operation, and that Mr. Farley had called and asked him to
come and look the job over. Mr. Nantz stated that Mr. Farley
asked him if he would like to go back to work running a D10
dozer, and indicated that he would speak with the respondent's
owner, Tommy Hamilton, about it. Mr. Nantz stated that he
informed Mr. Farley that he would go back to work if the
respondent paid his back wages, but that Mr. Farley never
contacted him again. Mr. Nantz confirmed that he was willing to
return to work if he received his back pay (Tr. 77-80; 82-83).
Mr. Nantz stated that during April 1991, he could not recall
that the water truck was operating in the "fill area on top of
the hill", and that during the entire time the dozer window was
missing Mr. Farley and Mr. Fisher did not have the water truck
operating around the dozer (Tr. 81). Mr. Nantz stated that he
worked in the dust "going into the fourth week" and that he did
not use a dust mask because "every day they was telling me we was
going to get a window put in - - we're going to get a window put
in. I kept waiting every day to get my window put in, why would
I need a dust mask? If my window was in, I wouldn't have no
problem" (Tr. 81-82).
Mr. Nantz stated that when he left the respondent's
employment on April 16, 1991, the dozer window was still missing
and he had no idea as to whether it was ever repaired, and he
believed that the dozer was sold (Tr. 84). He confirmed that he
did not want to operate the endloader for an hour and one-half as
offered by Mr. Fisher because he would have had to go back and
operate the dozer with the missing window and he did not want to
operate it in the dust (Tr. 84). He further explained as follows
at (Tr. 92-93):
Q. Okay, and you told them that you were available to work
and that you would operate any other piece of equipment?
A. I told the foreman that.
Q. Okay. But you would not operate the 980 loader?
A. That was only for one (1) hour, or something, until the
guy got ready to use it. I mean, I wasn't going to get to
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use it a shift, just one (1) hour, and then I'd have to go
back and start eating dust again.
Mr. Nantz confirmed that the mine is a non-union operation,
and that he was not aware of any MSHA inspection of the dozer
after the truck backed into it (Tr. 86). Mr. Nantz confirmed
that he never spoke to Mr. Tommy Henderson about the missing
dozer window, and that he was unable to speak to mine
superintendent Chuch Brock about the matter because he would
leave work in the evening when he (Nantz) began his work shift.
Mr. Nantz further confirmed that he only spoke to foremen Farley
and Fisher and they indicated that they would speak to higher
management about the matter. He also confirmed that he had never
filed any previous safety complaints against the respondent
(Tr. 90-91).
Ronnie L. Napier, testified that he has been employed by the
respondent for approximately 12 years. He stated that in April,
1991, he worked the second shift from 5:00 p.m. to 3:30 a.m. with
Mr. Nantz, and that he operated an endloader. Mr. Napier
confirmed that he has known Mr. Nantz since grade school and that
they drove to work together. He worked with Mr. Nantz on the
second shift for six or seven months before Mr. Nantz left on
April 16, 1991.
Mr. Napier stated that he observed that the back window on
the bulldozer that Mr. Nantz operated was broken out, and that it
was in this condition for "a couple of weeks or more" before
Mr. Nantz left. Mr. Napier stated that he heard Mr. Nantz ask
shift foreman Wayne Fisher "a couple of times" about when the
window would be replaced, and he also heard him complain to
Mr. Fisher about the dust. Mr. Napier stated that he noticed a
difference in Mr. Nantz's appearance before and after the
bulldozer window was broken out. He confirmed that Mr. Nantz
appeared clean before the window was out, but he was dusty and
dirty after operating the machine with the missing window.
Mr. Napier stated that he worked with Mr. Nantz on the last
evening of his employment on April 16, 1991, and Mr. Nantz asked
Mr. Fisher if the window had been replaced, and Mr. Fisher
informed him that it had not. Mr. Nantz then asked Mr. Fisher if
there was other equipment that he could operate and Mr. Fisher
replied "no". Mr. Nantz then gave Mr. Fisher his telephone
number and asked him to call him when the window was fixed.
Mr. Nantz then left after stating that he "couldn't eat anymore
dust". The window was repaired 3 or 4 evenings after Mr. Nantz
left, and Mr. Napier never observed Mr. Nantz operate the dozer
after the window was replaced (Tr. 94-102).
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On cross-examination, Mr. Napier stated that he did not see
Mr. Nantz when he returned to the job site to pick up his check
on April 17, 1991, and he never heard Mr. Fisher offer to let
Mr. Nantz operate a 980 loader instead of the dozer with the
missing window. Mr. Napier could not state that he ever heard
Mr. Fisher offer to cover the broken window area with plastic.
Harold Farler testified that he has been employed by the
respondent for four years as a mechanic, truck driver, and
service man fueling, oiling, and greasing equipment. He worked
the same shift with Mr. Nantz during his last employment at the
mine, and he rode to work with Mr. Nantz and Mr. Napier.
Mr. Farler stated that Mr. Nantz complained to him about the
missing bulldozer back window and also complained that the dust
was so bad that he couldn't stand it. Mr. Farler stated that
Mr. Nantz also complained to Mr. Napier, and he did not know
whether he complained to anyone else. Mr. Farler stated that
Mr. Nantz did not appear dirtier after work when the dozer window
was not broken out, but after it was broken out, Mr. Nantz had
dust all over him and he appeared "muddy" (Tr. 110-115).
Mr. Farler believed that the dozer window was missing "going
on the fourth week" before Mr. Nantz left the job.
Mr. Farler did not ride to work with Mr. Nantz on the last
evening of his employment, but he was present during that shift.
Mr. Farler did not hear the conversation between Mr. Nantz and
Mr. Fisher on the evening that Mr. Nantz left the job, but he did
hear Mr. Nantz complain to Mr. Fisher about the missing window,
and he heard Mr. Nantz tell Mr. Fisher that the dust was so bad
that he could not stand it. The dozer with the missing window
was operated for three more shifts before it was repaired.
Mr. Farler never observed Mr. Nantz operate the dozer after the
window was replaced (Tr. 116-118).
On cross-examination, Mr. Farler stated that on the evening
before Mr. Nantz left the site on Tuesday, April 16, 1991,
Mr. Nantz told him that he was going to work and if the window
was not replaced he would seek some other work to do. Mr. Farler
stated that Mr. Nantz operated the bulldozer on Monday, April 15,
1991, and that Tuesday, April 16, 1991, was the first time he did
not operate it. The dozer "sat for three nights" before a new
man came in to operate it.
Mr. Farler could not recall if any repairs were started on
the dozer before Mr. Nantz left and he did not know if any
mechanics were working on the window frame. Mr. Farler stated
that Mr. Fisher told him that the two water trucks at the site
"were down", but he could not recall when this occurred.
Mr. Farler stated that the water trucks did not operate during
April (Tr. 119-123).
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Mr. Farler stated that he rode home with Mr. Fisher after
work on the evening that Mr. Nantz left the mine and that
Mr. Fisher told him that "he hated to let Clayton go because he
was a good worker" and that after informing Lewis Hamilton, the
day shift supervisor and foreman, on the radio that Mr. Nantz did
not want to operate the bulldozer with the window out of it,
Mr. Hamilton told him (Fisher) "to cut him loose, let him go, he
couldn't let him by with that. If he did, all the other men
would gripe" (Tr. 124-126).
Daniel Belcher testified that he has worked for the
respondent for four years and that he works on the evening shift
from 6:00 p.m. to 4:30 a.m. operating an endloader. He worked
with Mr. Nantz on the same shift for approximately a year.
Mr. Belcher believed that the dozer back window operated by
Mr. Nantz was missing for about three weeks before Mr. Nantz
left, and that Mr. Nantz complained about the missing window and
the dust.
Mr. Belcher stated that he heard Mr. Nantz complain to his
shift foreman Wayne Fisher about the missing dozer window and the
dust, and Mr. Nantz asked Mr. Fisher when the window would be
replaced. Mr. Belcher stated that on the evenings that he drove
a truck when Mr. Nantz was pushing fill material with the dozer
with the missing window, the conditions were dusty. Mr. Belcher
stated that he asked Mr. Fisher to speak with Mr. Nantz about the
dust "getting so bad" and informed him that Mr. Nantz might quit
because of these conditions. Mr. Belcher confirmed that he heard
Mr. Nantz speak with Mr. Fisher about the missing window on the
last night that he worked and that after Mr. Fisher told
Mr. Nantz that the window had not been replaced Mr. Nantz wanted
to know if another machine, or work in the shop, was available
and Mr. Fisher stated that "he didn't have anything". Mr. Nantz
then gave Mr. Fisher his telephone number and told him to call
him when the window was repaired. Mr. Belcher recalled that the
window was broken out for "around three weeks or something"
before Mr. Nantz's last night of employment. Mr. Belcher stated
that during the time the window was broken he operated the water
truck two or three times spreading one load of water in the fill
area each time (Tr. 128-136).
On cross examination, Mr. Belcher confirmed that the water
truck was " a pretty good sized truck", but he was not sure of
the tank capacity. He also believed that Mr. Fisher operated the
water truck during the time the dozer window was broken out, and
he remembered only one water truck, but indicated that there may
have been two. He confirmed that Mr. Fisher offered to let
Mr. Nantz operate the 980 loader while he (Belcher) operated the
water truck to water the fill area. Mr. Belcher "guessed" that
Mr. Nantz did not want to operate the loader, but he did not know
what Mr. Nantz may have told Mr. Fisher in response to his offer.
Mr. Belcher stated that he had no need for the loader for two
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hours, but as soon he completed the watering task, and cleaning
coal, he would have resumed operating the loader for the
remainder of his shift (Tr. 136-140).
Mr. Belcher could not recall any conversation between
Mr. Nantz and Mr. Fisher concerning the use of plastic over the
dozer back window or the use of a dust mask. He confirmed that
dust masks were available on the job and that some of the drill
men use them and some do not. Mr. Belcher confirmed that he does
not use a dust mask because his highlift has an enclosed cab
(Tr. 141).
Johnnie Moore, testified that he previously worked for the
respondent from 1980 to 1991, and that he was employed as a first
shift mechanic in April, 1991. He knew Mr. Nantz as an evening
shift bulldozer operator. Mr. Moore stated that he performed
repair work on the D8 dozer operated by Mr. Nantz and he observed
that the rear window was missing but he did not know how long it
was missing.
Mr. Moore stated that he was working at the mine the last
evening that Mr. Nantz worked and that he overheard a
conversation over the company radio in his tool truck between the
night shift foreman, who he knew by his nickname "Fish", and
Mr. Lewis Hamilton, and he recalled the conversation as follows
(Tr. 146-147):
A. This has been over a year ago. He just told Lewis that
Clayton had refused to run the dozer on the count of the
window being out of it, and that if he had anything else for
him to do he would do it, but he didn't have anything else
for him to do. And Clayton went onto the house, I reckon,
and he told Lewis that he had another man, that he could
bring in another man tomorrow night to run the dozer if he
wanted him to.
Q. Did Mr. Hamilton say a reply to that?
A. He told him whatever he wanted to do.
Q. Now, that night that you heard the conversation on the
radio, was the back window still out of the bulldozer, at
that time?
A. Yes.
Mr. Moore stated that a week or so later, his shift foreman
Charles Brock instructed him to help "the window people" install
a new window on the dozer that Mr. Nantz refused to operate.
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Mr. Moore stated that the window frame had not been straightened
out prior to this time, and that it took him an hour or two to do
this work, and that the window was then installed in an hour
(Tr. 147-148).
On cross-examination, Mr. Moore stated that Mr. Brock
instructed him to straighten out the dozer window frame "a couple
of weeks" after Mr. Nantz left the job. Mr. Moore stated that
the dozer may have had a cracked door window and that a small
side window was also missing. He did not know if anyone else
worked on the window frame before he did, and he reiterated that
he and a welder worked on it after Mr. Nantz left the job. He
stated that the window was replaced by the Bell Glass Company at
the mine site, and that this is the way that broken windows were
always repaired. Mr. Moore stated that during the radio
conversation that he heard between Mr. Fisher and Mr. Hamilton,
he did not recall Mr. Hamilton say anything about firing
Mr. Nantz (Tr. 149-153).
Karen Nantz, the complainant's wife, testified that her
husband has worked for the respondent on several occasions, and
that he last worked for the respondent from July, 1990, to
April 16, 1991. Mrs. Nantz stated that her husband was always
dirty when he came home from work, which was not unusual, but she
noticed a change in his appearance sometime in mid-March of 1991.
She stated that he would be "caked with dust", and his clothes
and lunch bucket were filled with thick dust, which was "blue-
Grayish" in color (Tr. 153-156).
On cross-examination, Mrs. Nantz stated that when her
husband worked for other coal companies, and when he operated a
drill, his appearance was not as dusty and she did not notice as
much dust on his clothing. She did not know whether her husband
wore a dust mask. Prior to operating the dozer with the broken
window her husband was never "caked" with dust, and the dust did
not cover his nose, mouth, and hair. She acknowledged that
"getting dirty" was normal on strip mining jobs.
In response to questions concerning certain medical expenses
incurred by her husband after he left the respondent's
employment, Mr. Nantz confirmed that the medical bills shown in
exhibits C-13, C-14, and C-15, were for treatment her son and
daughter received as the result of an accident in a four-wheel
vehicle which was not covered by insurance. She also confirmed
that a bill for $18.79 (exhibit C-6) was for medication for her
husband for pleurisy (Tr. 156-162).
MSHA Special Investigator Ronnie Brock testified that he
conducted the investigation of Mr. Nantz's complaint, and he
confirmed that he prepared a back-pay computation based on the
information supplied to him by Mr. Nantz and his wife
Page 14
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(Exhibit C-1) (Tr. 162-169). Mr. Brock also confirmed that he
did not document all of Mr. Nantz's employments subsequent to his
termination, did not verify through company records the claimed
hours of regular and overtime pay by Mr. Nantz when he worked for
the respondent, and that he did not ask Mr. Nantz about any
unemployment payments or workers compensation benefits.
Mr. Brock further confirmed that his investigation did not
disclose any citations issued to the respondent as a result of
the broken bulldozer window, and that there was no MSHA
regulation requiring an enclosed cab for a bulldozer (Tr. 170,
182-188).
Respondent's Testimony and Evidence
Louis Hamilton testified that he is employed by the
respondent as the mine superintendent and that he served in that
position in April, 1991, and was familiar with the mining
operation where Mr. Nantz was employed at that time. He
confirmed that Henderson Farley was the second shift foreman, and
after he was moved to the Leatherwood operation, Wayne Fisher
became the foreman. Mr. Hamilton identified Exhibit R-5 as
summaries of Mr. Nantz's earnings and hours worked during 1991,
and he confirmed that the information was provided to him by the
company payroll clerk. Mr. Hamilton confirmed that the normal
work week is 50 hours, excluding any Saturday work, and that any
work over 40 hours is considered overtime (Tr. 189-197).
Mr. Hamilton stated that the window on the bulldozer in
question was broken out when a truck backed into it bending the
frame. The frame needed to be straightened, and some welding
work was required before the window glass could be replaced. The
mechanic on the first shift would normally repair any frame
damage but the glass would be replaced by a local glass company
at the mine site (Tr. 198).
Mr. Hamilton stated that he was not aware of any complaints
by the first shift dozer operator about the broken window, and he
first became aware of Mr. Nantz's concern when he refused to
operate the dozer and Mr. Fisher called him about the matter over
the two-way radio. Mr. Hamilton assumed that Mr. Fisher called
him on the second evening when Mr. Nantz came to the site to
check about the glass and he believed that Mr. Fisher told him
Mr. Nantz was quitting and going home because "he would not run
the machine like that" (Tr. 199). Mr. Hamilton told Mr. Fisher
"that if he wouldn't run it that we would have to get someone
else, if he left" (Tr. 200).
Mr. Hamilton stated that Mr. Fisher told him that he had
offered to let Mr. Nantz operate the 980 loader but that
Mr. Nantz wanted his bulldozer fixed and wanted to run that
machine and nothing else. Mr. Hamilton denied that he told
Page 15
~1871
Mr. Fisher to fire Mr. Nantz or that he made any statement that
he could not allow Mr. Nantz "to get away with something like
that, because all the employees would start doing it" (Tr. 200).
Mr. Hamilton stated that Mr. Nantz would not have been replaced
or let go if he had operated the 980 loader, and that he would
not have been fired (Tr. 201).
Mr. Hamilton stated that he has 15 years of surface mining
experience, including the operation of loaders and bulldozers
with open and closed cabs. In his opinion, Mr. Nantz could have
avoided the dust coming in the back window by positioning himself
and the machine to avoid the dust. He also did not believe that a
short term, or four to six weeks exposure to dust, would be a
health hazard or harmful (Tr. 203-204). He also believed that
Mr. Nantz could have protected himself from the dust and he
explained the loading and dumping process and the methods for
operating the bulldozer (Tr. 205-207).
Mr. Hamilton stated that Mr. Nantz could have used an MSHA
approved dust mask which was available at the work site, and he
indicated that plastic is put on the machine back windows for
protection and he did not believe that it decreases visibility at
night. He stated that "we always try" to provide a light plant
for illumination in the shot and fill areas (Tr. 207-208).
On cross examination, Mr. Hamilton stated that he worked at
the mine on the same shift as Mr. Nantz and that he was there the
entire time the window was broken out of the bulldozer in
question. When asked if he ever mentioned to Mr. Nantz the ways
to move the machine to avoid any dust, Mr. Hamilton responded
"all operators know how to use it" (Tr. 210). In response to
further questions, Mr. Hamilton reiterated that he was unaware of
Mr. Nantz's complaints to Mr. Fisher until Mr. Fisher called him,
and he did not know how long the window was broken (Tr. 216,
219).
James Cornett testified that in April, 1991, he was employed
by the respondent as a second shift spare equipment operator and
that he knew Mr. Nantz. He stated that he operated a D9
bulldozer at the "shot" area, and that he recalled that the back
window of the D8 dozer was broken out during the first shift.
Mr. Cornett stated that he overheard a conversation on the
parking lot between Mr. Nantz and Mr. Fisher prior to a work
shift. He heard Mr. Nantz complain "about wanting a window" and
that Mr. Fisher offered him a loader to operate but Mr. Nantz
told Mr. Fisher that he could not operate the loader. He also
heard Mr. Fisher offer to install a piece of plastic in the back
window, but he could not recall exactly what Mr. Nantz said about
the plastic (Tr. 226).
On cross-examination, Mr. Cornett stated that he was
standing close to Mr. Fisher and Mr. Nantz during their
Page 16
~1872
conversation, but he could not specifically recall whether
Mr. Nantz said he could not, or would not, operate the loader
offered by Mr. Fisher (Tr. 227-228). Mr. Cornett could not
recall the exact date of the conversation, and he indicated that
it may have been 3 or 4 days before Mr. Nantz left the job.
Mr. Cornett stated that Mr. Nantz also told him that he left
because "the dust was bad" and Mr. Cornett confirmed that "we
were working in a real dusty shot at that time" (Tr. 229).
William H. Farley testified that he is employed by the
respondent as a foreman and that he was in that position when
Mr. Nantz worked in April, 1991. He confirmed that he
transferred from that particular job site on Friday, April 5,
1991, and reported to the "Leatherwood-Blue Diamond-Big Laurel"
site on Monday, April 8, 1991, when Mr. Fisher replaced him as
foreman. Mr. Farley stated that an accident involving the
bulldozer in question occurred "a day before I left, which was
probably on a Thursday". He stated that he operated the dozer
the day he left because Mr. Nantz was off, and he also operated
it the day before. When asked if the glass was completely out
when he operated the dozer, Mr. Farley responded "No, it was
still in there, there was one little glass on the side that was
there, but the big glass in the back was still out" (Tr. 234).
He described the damage to the dozer as "bent the side of the
cab, just a little bit in, and knocked that one glass out"
(Tr. 234-236).
Mr. Farley stated that Mr. Nantz never operated the
bulldozer with the back window completely out, and that Mr. Nantz
never complained to him about any dust or the missing side window
(Tr. 236). He stated that Mr. Nantz would have operated the
bulldozer with the damaged window frame for only one shift while
he was foreman, and that the side window was the only one
missing. The back window was still intact but "it might have
been a little gap in one corner of it, where the cab was bent",
and he did not know when the window came out (Tr. 237).
Mr. Farley stated that he observed Mr. Nantz operating the
dozer with the doors open prior to the window damage on more than
one occasion, "just about every day", including the winter
season. Mr. Nantz told him that he had the doors open because "a
lot of times he can't stand to be cooped up in that, you know,
closed up and stuff" (Tr. 239-240). Mr. Farley also indicated
that he has ridden with Mr. Nantz in a pickup with three people
in the front seat, and that Mr. Nantz would get out and let the
third person sit in the middle, or he would ride in the bed of
the truck (Tr. 240).
Mr. Farley stated that Mr. Nantz never complained to him
about the dozer doors or the air conditioning not working
properly, and he did not know when the broken dozer window was
repaired (Tr. 241). He confirmed that Mr. Nantz came to the
Page 17
~1873
Leatherwoood job site to speak with him about going to work for
him. Mr. Farley denied that he asked Mr. Nantz to come to the
site, and he stated that Mr. Nantz "just showed up one evening".
He stated that Mr. Nantz informed him that he did not want to
work with Mr. Fisher and "asked me if I had anything for him to
do" (Tr. 242). Mr. Nantz told him that he was interested in
going back to work and if there were an opening he would come
back. Mr. Nantz placed no conditions on his returning to work,
and he never called on him again about any openings, and
Mr. Farley never contacted Mr. Nantz again. Mr. Farley stated
that when Mr. Nantz was preparing to leave after the conver-
sation, Mr. Nantz "told me that he had decided he didn't want to
work anyway, that he had the company sued and stuff, or something
of that nature" (Tr. 243-244).
Mr. Farley stated that he has worked in the surface mining
industry for 20 years, and has served as a foreman for the
respondent for eight years. He has operated open-cab equipment
and did not believe that it was reasonable to believe that anyone
operating in dust for a month would result in serious health
consequences. Although he would not like doing it, he would not
object, and he has operated a dozer with an open cab in dust but
has never operated one with an enclosed cab with a missing
window. He stated that dozer fans and dust masks can minimize
any dust with the back window of the dozer out, and he confirmed
that he has used plastic around an open cab dozer to keep warm in
the winter and that it does not impair his visibility and is a
common thing with open cab equipment operators. He also believed
that Mr. Nantz could avoid the dust by operating his machine in
different directions and he confirmed that Mr. Nantz was an
experienced good operator (Tr. 244-248).
On cross-examination, Mr. Farley confirmed that he did not
document or note the date that the dozer back window was broken
out in the foreman's book and that his testimony is from memory
(Tr. 250). He also confirmed that he never personally offered a
dust mask to Mr. Nantz, and never suggested ways of avoiding the
dust by positioning his dozer in a certain way (Tr. 252).
In response to further questions, Mr. Farley stated that he
operated the water truck every day during the last two weeks he
was on the job with Mr. Nantz. He confirmed that he considered
Mr. Nantz to be "sort of a friend" and that on a couple of
occasions in the past when Mr. Nantz became upset and quit his
job he talked him into coming back to work. Mr. Farley stated
that when the MSHA inspector took his prior statement he told the
inspector that the dozer window was broken two days before he
left to go to the Leatherwood site (Tr. 253).
Wayne Fisher testified that he was the night shift foremen
in April, 1991, and prior to that time worked as a loader
operator at the Leatherwood site for approximately six years. He
Page 18
~1874
stated that he was promoted to foreman on April 8, 1991, and had
not met Mr. Nantz prior to this time. He inspected Mr. Nantz's
D8 dozer that evening and noticed that the back window was broken
out of it. He could not recall if Mr. Nantz complained to him
that evening, and he stated that "It seems like I told him that I
would get it put in" (Tr. 261). The next day on April 9,
Mr. Fisher spoke with the day shift boss and told him that the
window needed to be replaced, and that "he told me that they was
planning on putting it back in, but they was wanting to wait on a
weekend, or something, when the dozer was parked, to get it in"
(Tr. 262). Mr. Fisher stated that Mr. Nantz "may have said
something that night. I don't remember what was said, but they
may have been something said about the glass" (Tr. 262).
Mr. Fisher confirmed that Mr. Nantz worked for him from
April 8, through 12, 1991, and that everyone was off on Saturday
and Sunday, April 13 and 14. Mr. Nantz came back to work on
Monday, April 15, and during this entire time Mr. Fisher recalled
that Mr. Nantz complained one or two times that "the dust was
coming in the dozer pretty bad" and that he offered to cover it
with plastic and told Mr. Nantz that "I would get the glass put
in today" (Tr. 263). Mr. Nantz refused his offer for the plastic
which was available in the shop. Mr. Fisher stated that it was
clear plastic that he could see through and that he used it to
cover open dozer cabs that he has operated in the past.
Mr. Fisher confirmed that the plastic would not keep the dust out
of an open cab, but dusk masks were available, and the plastic
did not affect visibility or the safe operation of the dozers
that he has operated (Tr. 264-265).
Mr. Fisher stated that Mr. Nantz would operate the dozer in
second gear at three to four miles an hour, and he was of the
opinion that placing plastic over the back window would not
create a safety hazard. He confirmed that dust masks are
available on the job but that Mr. Nantz never asked for one.
Mr. Fisher stated that Mr. Nantz operated his machine all of the
time with the doors open, but he never asked to him why he did
this (Tr. 266).
Mr. Fisher stated that Mr. Nantz reported for work on
Tuesday, April 16, 1991, but did not work that day. Mr. Fisher
explained what transpired after Mr. Nantz came to work as follows
at (Tr. 267-268):
A. He come in and he told me he wasn't going to run the
dozer. That if the glass wasn't put in he was going to go
back home, and when I got the glass out in the dozer, he'd
come back to work. And I offered to let him run a 980, and
I told him, I said, "Run the 980, and I'll run the water
truck and settle the dust, and then later on tonight, if I
have to have the 980 to clean coal with, you can run your
dozer." And he said, "No, I'm not running the 980, I'm
Page 19
~1875
going home." He said, "You get the glass back in the dozer,
call me, and I'll come back to work."
Q. Did you believe at that time, that you would have coal
that night, in the 980 to clean?
A. No, at that time, the 92 trucks was still in the pits
moving the rock off of it, and me and the day shift boss
done talked about if I could clean it, clean it, and if I
couldn't, we wouldn't haul the next day. It would be all
right.
Q. So, there was a possibility he could have run the 980
most of that shift?
A. Yeah.
Mr. Fisher further explained that he intended to assign the
normal 980 loader operator (Danny Belcher) to the water truck and
that Mr. Nantz would have operated the loader at the fill area
where he normally operated the dozer. The loader could be used
to push fill material and Mr. Fisher believed that Mr. Nantz
understood that he would be working in the fill area and not the
shot area because he worked the fill all of the time and that was
his job (Tr. 269).
Mr. Fisher stated that after his conversation with Mr. Nantz
on April 16, he called Superintendent Hamilton and told him that
Mr. Nantz refused to operate the dozer and was going home.
Mr. Fisher stated that Mr. Hamilton did not say that he should
fire Mr. Nantz. Mr. Fisher recalled that Mr. Hamilton stated
"All right, just do what you have to do. If they're going to
work, they're going to work, you know, if they ain't we're just
going to have to get someone that will work" (Tr. 269-270).
Mr. Fisher stated that Mr. Nantz next returned to the mine
on Wednesday, April 17, 1991, which was payday, and he recounted
the following conversation with Mr. Nantz (Tr. 270-271):
A. Well, I give his check to him and he asked me if I got
the glass back in his dozer. I told him, "No, it wasn't
in." He said, "Well, I'm going back home, when you get it
put in, call me, I'll come back to work." I said, "Clayton,
you know, I've got to run that dozer, and if you want to run
it, we'll work it, if your don't, I'll get somebody up her
that will". And I think that was about all that was said
that night, and he left, and then I hired another man on the
dozer.
Q. Was the decision to replace him, basically, left up to
you?
Page 20
~1876
A. Yeah.
And, at (Tr. 286):
MR. FISHER: He told me he was going home, and I said,
"Well, if you're going to go home, I have to take it
that you're quitting your job, and I'll have to get
somebody, you know, in here on the dozer."
Mr. Fisher stated that everyone was off for the holidays
from Thursday, April 18, 1991, until April 22, 1991, and that the
dozer window was replaced on Thursday and Friday, April 18 and 19
(Tr. 272). He confirmed that the new dozer operator Terry Doolin
operated the dozer for one shift before the window was replaced
and he did not complain about any dust (Tr. 273).
Mr. Fisher stated that from April 8, to April 16, 1991, he
operated one of the smaller water trucks and watered the fill
area when it was dusty, and he confirmed that a larger capacity
truck was not used because of a brake problem (Tr. 273-275).
Mr. Fisher also confirmed that dust masks were available for the
asking, and that during the time Mr. Nantz worked for him he
never complained to him about the dozer doors not closing or
staying locked, inoperative fans, or that the air conditioning
was not working (Tr. 276).
Mr. Fisher stated that he spoke to the first shift foreman
after April 9, about fixing the dozer window and mentioned it to
him two or three times and that the foreman told him that "We're
going to fix it, it's going to be fixed" (Tr. 277). Mr. Fisher
could not recall if anyone was working on the window frame during
this time, and he confirmed that there was no mechanic on his
shift (Tr. 278). He stated that Mr. Nantz did not request to
operate other equipment when he returned to the mine on April 17,
and that he would not have replaced Mr. Nantz if he had agreed to
operate the 980 loader (Tr. 281).
On cross-examination, Mr. Fisher stated that after Mr. Nantz
left the mine of April 16, he had to take a D9 dozer out of the
shot area and use it in the fill area, and he confirmed that the
D9 had all of the windows in place, but that it was a different
machine. Mr. Fisher also confirmed that he told Mr. Nantz that
he would let him operate the loader and then operate the dozer
later on in the shift "If I needed to, I would let him run the
loader all night, if I didn't have coal to clean" (Tr. 283, 287).
Terry Doolin testified that he started working for the
respondent in April, 1991, a couple of days before Easter, as a
D8-L Dozer operator, and he confirmed that the dozer did not have
a back window (Tr. 293). He stated that he operated the dozer in
the fill when he first got the job, and while it was dusty he did
not have any problem turning the dozer around in the fill area.
Page 21
~1877
He stated that he operated the dozer with the doors closed, that
the locks were operable, the lights worked, and that he did not
turn on the fan or air conditioner (Tr. 293-294). He confirmed
that there was a "light plant" at the fill area, and that he
minimized the dust coming through the back window by turning the
dozer around to keep the dust from coming in the back window
(Tr. 295). Mr. Doolin did not believe that the fill area was
dustier than any normal strip mining operation, and that he
sometimes waited after the trucks dumped so that the dust could
clear before he started pushing the fill (Tr. 296). He confirmed
that the dozer window was installed within two or three shifts
after he initially operated the machine (Tr. 297).
Findings and Conclusions
The Timeliness of the Complaint and Amended Complaint, and the
Denial of the Respondent's Motion for a Continuance of the
Hearing.
The Secretary's initial complaint of January 31, 1992,
included a proposal for an order assessing an appropriate
civil penalty against the respondent for a violation of
section 105(c)(1) of the Act. The Secretary stated that the
complaint would be amended to reflect the amount of the penalty
and the criteria used in determining the penalty. The
respondent's initial answer to the complaint, filed through
counsel Lloyd Edens, included an affirmative defense that the
complaint was not timely filed within the time limitations
found in sections 105(c)(2) and (3) of the Act, and Commission
Rules 40(a) and 41(a), 29 C.F.R. 2700.40(a) and 41(a).
On March 24, 1992, I issued a Notice of Hearing scheduling
the case for hearing on July 14, 1992. On June 16, 1992, the
Secretary filed a motion to amend the complaint to include a
proposed civil penalty assessment of $8,000, for the alleged
discriminatory violation. In filing the motion, the Secretary's
counsel stated that she "has contacted Lloyd Edens, counsel for
the respondent, regarding this motion, and Mr. Edens stated he
has no objection thereto". Under the circumstances, and absent
any objection from respondent's counsel, I granted the
Secretary's motion to amend the complaint.
Respondent's counsel Edens withdrew from the case on July 1,
1992, and his motion for a continuance of the hearing in order to
obtain substitute counsel was granted, and the case was
rescheduled for hearing on August 12, 1992. On July 17, 1992,
counsel J. P. Cline III, an associate of Mr. Edens, entered his
appearance as counsel for the respondent. Mr. Cline filed an
answer to the amended complaint asserting inter alia that the
amended complaint was untimely.
Page 22
~1878
On August 7, 1992, five days before the scheduled hearing,
counsel David and Marcia Smith, entered their appearance and
notified me that they were retained to represent the respondent.
At the same time, counsel filed a motion for a continuance of the
hearing until sometime in September, 1992, so that they could
prepare for the hearing. In view of the pending hearing, the
fact that it had been previously continued at the request of the
respondent, the substitution of three different attorneys, and in
order to preclude any additional delay, the motion for a contin-
uance was denied and the matter proceeded to trial on August 12,
1992.
During opening remarks at the hearing, counsel Marcia Smith
suggested that the respondent may have been prejudiced by my
denial of the motion to continue the hearing, and she indicated a
desire to preserve my ruling for the record (Tr. 5). Counsel
asserted that at least two former employees, "the foreman that
was involved and the mechanic that did the repair work",
identified as "chuck and somebody else", were out of the area and
could not be found to testify (Tr. 6, 7). Counsel further
asserted that the mine superintendent would testify as to any
prejudice to the respondent as the result of the absence of two
key witnesses and the fact that they could not be located
(Tr. 9).
In his posthearing brief, and citing transcript pages 208-
209, counsel David Smith asserts that mine superintendent Lewis
Hamilton testified that Chuck Brock was the first shift foreman
in charge of bulldozer repairs and that his whereabouts were
unknown at the time of the hearing, since he had moved to
California (Brief, pgs. 12-13). At page 27 of his brief,
Mr. Smith states that "Since the mechanic in charge, Chuck Brock,
had left the state and was not available to testify at the
hearing on behalf of Nally & Hamilton, it is impossible for Nally
Hamilton to know at this point in time why the window was not
fixed on the weekend of April 12, 1991, rather than on the
following weekend". Finally, at page 41 of the brief, counsel
asserts in part that in view of the Secretary's delay in bringing
the complaint, Mr. Nantz's backpay claim should be denied.
I have reviewed the testimony of Mr. Hamilton, and while it
is true that he testified that Mr. Brock was no longer employed
by the respondent and had moved to California, Mr. Hamilton
further stated that "I think he came back in this area in the
last week", (emphasis supplied),and that it was rumored that
"he's gone to work for Clover Fork" (Tr. 209). The record
reflects that Mr. Nantz worked for the Cloverfork Mining and
Excavation Company after he left the respondent's employ, and it
would appear to me that this company would have been conveniently
located to the respondent had it endeavored to pursue the rumor
that Mr. Brock had returned from California and was working
there, particularly since Mr. Hamilton believed that Mr. Brock
Page 23
~1879
had returned to the area at least a week prior to the hearing.
Thus, it would further appear to me that Mr. Brock may have been
available for testimony had the respondent made some attempts to
locate him, or at least made an effort to obtain his deposition.
The respondent apparently did neither.
The respondent's suggestion that Mr. Brock was the only
witness who could testify as to why the broken window in question
was not repaired sooner is not well taken. I initially take note
of the fact that Mr. Brock worked the first day shift, and that
Mr. Nantz operated the bulldozer with the missing window on the
second, or night shift. Insofar as any repairs to the bulldozer
are concerned, superintendent Hamilton and second shift foremen
William Farley and Wayne Fisher all testified for the respondent,
and they all presented testimony regarding the condition of the
broken window and framework, and the efforts made by the
respondent to make the necessary repairs. First shift mechanic
Johnny Moore, who was subpoenaed to testify for the Secretary,
and who was cross-examined by counsel Smith, testified about the
repairs which he and a welder named "Wayne" made to the window
frame, as well as when the window glass was replaced. Under the
circumstances, I conclude and find that the absence of Mr. Brock
was not critical or prejudicial to the respondent's case. The
respondent could have called the welder who assisted mechanic
Moore, as well as the glass contractor who installed the dozer
window, but it did not do so.
In view of the foregoing, and after further consideration of
the respondent's assertions concerning the claimed prejudicial
denial of its motion to continue the hearing, I conclude and find
that the respondent was not prejudiced and that its counsel had a
full and fair opportunity to defend the respondent's position
through the testimony of all of the knowledgeable witnesses who
appeared at the hearing. Indeed, the record attests to the fact
that counsel Smith was well-prepared, conducted a thorough and
competent examination of all witnesses, and submitted a brief
which I believed reflects his grasp of the issues as well as his
knowledge of the applicable case law.
With regard to the alleged failure by the Secretary to
timely file the complaint, I take note of the fact that
section 105(c)(3) of the Act requires the Secretary to proceed
with expedition in investigating and prosecuting a miner's
discrimination complaint. Sections 105(c)(2) and (c)(3), require
the Secretary to act within the following time frames:
1. Commence the investigation of the complaint within 15
days of its receipt from the miner.
2. Within 90 days of the receipt of the complaint, notify
the complaining miner of any determination as to whether a
violation has occurred.
Page 24
~1880
3. If a determination is made that a violation has
occurred, immediately file a complaint with the Commission.
The Commission's Rules, at Part 2700, Title 29, Code of
Federal Regulations, implement the statutory time provisions.
Rule 40(a), 29 C.F.R. 2700.40(a) requires the Secretary to file
a complaint after an investigation if she finds that a violation
has occurred. Rule 41(a), 29 C.F.R. 2700.41(a), requires the
Secretary to file the complaint within 30 days after her written
determination that a violation has occurred.
The record in this case establishes that Mr. Nantz's
employment with the respondent ceased on or about April 16, 1991,
and that he subsequently went to MSHA's Harlan, Kentucky field
office where he gave his initial statement of alleged
discrimination on May 29, 1991 (Nantz Deposition of June 15,
1992, and Deposition Exhibit No. 2). MSHA Special Investigator
Brock's investigation of the complaint followed shortly
thereafter, and the Secretary's counsel confirmed that the
investigation was completed on October 1, 1991, and that the
Secretary made her determination that a complaint should be filed
on January 15, 1992 (Tr. 7-8). The complaint was received by the
Commission on January 31, 1992.
In David Hollis v. Consolidation Coal Company, 6 FMSHRC 21
(January 1984), Aff'd mem. 750 F.2d 1093 (D.C. Cir. 1984)
(table), the Commission affirmed a dismissal of a miner's
complaint filed six months after his discharge, and stated that
"Tardiness questions must be resolved on a case-by-case basis,
taking into account the unique circumstances of each situation",
6 FMSHRC 24.
In Joseph W. Herman v. Imco Services, 4 FMSHRC 2135, 2139
(December 1982), the Commission upheld a dismissal of a miner's
complaint filed 11 months after the alleged act of discrim-
ination. Although the Commission found no mitigating
circumstances excusing the delay, and found that the record was
"replete with examples of faded memories as well as the
unavailability of potentially relevant evidence ", it also
suggested that any mine operator prejudice resulting from lost
evidence, faded memories, and witnesses who have disappeared must
be balanced against the vindication of a complainant's rights in
a particular case.
In Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
(January 1984), the Commission found that the miner's filing of
his complaint 30-days out of time was excusable because he was
unaware of the filing time limitations and the mine operator
failed to demonstrate the kind of legal prejudice recognized in
Joseph W. Herman v. Imco Services, supra, namely, tangible
evidence that has since disappeared, faded memories, or missing
witnesses. See also: Bruno v. Cyprus Plateau Mining Corp.,
Page 25
~1881
10 FMSHRC 1649 (November 1988) aff'd., No. 89-9509 (10th Cir.,
June 5, 1989) (unpublished). I take note of the fact that all of
these "time limitation" cases concerned untimely delays by pro se
complaining miners, while the instant proceeding involves alleged
untimely delay by the Secretary and not by Mr. Nantz.
In Secretary of Labor, MSHA ex rel Donald R. Hale v. 4-A
Coal Company, Inc., 8 FMSHRC 905 (June 1986), the Commission
reversed a judge's decision dismissing a Secretarial complaint
filed with the Commission more than two years after the miner's
complaint was filed with MSHA. Recognizing the fact that the
Secretary seriously delayed the filing of the complaint, the
Commission nonetheless held that in the absence of any showing
that the respondent mine operator was prejudiced by the delay,
the complaint should not have been dismissed. In speaking to the
requisite time frames found in section 105(c) of the Act, the
Commission stated as follows at 6 FMSHRC 908:
While the language of section 105(c) leaves no doubt
that Congress intended these directives to be followed
by the Secretary, the pertinent legislative history
nevertheless indicates that these time frames are not
jurisdictional:
The Secretary must initiate his investigation within
15 days of receipt of the complaint, and immediately
file a complaint with the Commission, if he determines
that a violation has occurred. The Secretary is also
required under section 105(c)(3) to notify the
complainant within 90 days whether a violation has
occurred. It should be emphasized, however that these
time-frames are not intended to be jurisdictional. The
failure to meet any of them should not result in the
dismissal of the discrimination proceedings; the
complainant should not be prejudiced because of the
failure of the Government to meet its time obligations.
(Emphasis added).
S. Rep. No. 181, 95th Cong., 1 Sess. 36 (1977),
reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2 Sess., Legislative
History of the Federal Mine Safety and Health Act of
1977 at 624 (1978) ("Legis. Hist. "). Plainly,
Congress clearly intended to protect innocent miners
from losing their causes of action because of delay by
the Secretary. (Emphasis added).
Related passages of legislative history make equally
clear, however, that Congress was well aware of the due
process problems that may be caused by the prosecution
of stale claims. See Legis. His. at 64 (discussion of
Page 26
~1882
60-day time limit for the filing of miner's discrimi- nation
complaint with the Secretary). The fair
hearing process envisioned by the Mine Act does not
allow us to ignore serious delay by the Secretary in
filing a discrimination complaint if such delay
prejudicially deprives a respondent of a meaningful
opportunity to defend against the claim. (Emphasis
added).
Accordingly, we hold that the Secretary is to make his
determination of whether a violation occurred within
90 days of the filing of the miner's complaint and is
to file his complaint on the miner's behalf with the
Commission "immediately" thereafter -- i.e., within
30 days of his determination that a violation of
section 105(d)(1) occurred. If the Secretary's
complaint is late-filed, it is subject to dismissal if
the operator demonstrates material legal prejudice
attributable to the delay. Cf. David Hollis v.
Consolidation Coal Co., 6 FMSHRC 21, 23-25 (January
1984), aff'd. mem., 750 F.2d 1093 (D.C. Cir. 1984)
(table); Walter A. Schulte v. Lizza Industries, Inc.,
6 FMSHRC 8, 12-14 (January 1984).
As noted earlier, the record reflects that Mr. Nantz filed
his initial complaint with the Secretary well within the 60-day
time frame found in section 105(c)(1) of the Act, and I find no
evidence that the Secretary unduly delayed the initiation of an
investigation of Mr. Nantz's complaint after it was filed, or
that the four months that it took to complete the investigation
constituted an unreasonable delay. Further, once the Secretary
made a determination on January 15, 1992, that a complaint should
be filed, it was filed January 31, 1992, well within the 30 days
provided by Commission Rule 41(a).
After careful consideration of the entire record in this
case, I find no persuasive evidence to establish that the
respondent has been adversely affected or prejudiced by any
secretarial delays in this case. Any delays in the case after
the case was docketed with the Commission came about as a result
of three changes of attorneys representing the respondent, and
one hearing continuance granted at the respondent's request due
to a change in counsel. Insofar as any prejudice to the
respondent as a result of delay by the Secretary in filing the
complaint is concerned, I take particular note of the fact that
prior to, and up to the day of the commencement of the hearing,
none of the attorneys representing the respondent advanced any
arguments or claims that the delay prejudiced the respondent's
ability to defend itself because of the unavailability of
critical witnesses, loss of evidence, or faded memories.
Page 27
~1883
In my view, the respondent's present counsel did a
commendable job in defending the discrimination complaint,
notwithstanding my denial of his motion for a continuance of the
hearing. The hearing transcript record of the testimony of all
of the witnesses who had knowledge of all relevant and material
facts incident to the complaint, attest to the fact that the
respondent's counsel had a full and fair opportunity to present
his case, and to test the case made by the Secretary on behalf of
Mr. Nantz. Under these circumstances, the respondent's
suggestions that it has been prejudiced by the Secretary's delay
in filing the complaint ARE REJECTED, and its requests to dismiss
the complaint and the proposed civil penalty assessment on this
ground ARE LIKEWISE REJECTED AND DENIED.
With regard to the respondent's assertions concerning the
delay by the Secretary in filing the amended complaint, I take
note of the fact that the complaint was simply amended to include
a proposal for a specific amount of the proposed penalty, and to
inform the respondent of the particular statutory penalty
criteria followed by the Secretary in support of the proposed
penalty. The respondent was previously informed by the Secretary
in her initial complaint that an amendment would be forthcoming,
and it would appear from the record that the amended complaint
was unopposed by counsel of record at the time of filing.
It is well-settled that administrative pleadings may be
liberally construed and easily amended. National Realty and
Construction Company v. Occupational Safety and Health Review
Commission, 489 F.2d 1257 (D.C. Cir. 1973); Secretary of Labor v.
United States Steel Corporation, 6 FMSHRC 1908, 1916 (August
1984). Further, given the fact that civil penalty assessment
proposals by the Secretary are considered de novo by the
presiding judge, and the judge is not bound by the Secretary's
proposed penalty, I am not persuaded that the respondent has been
prejudiced by the amendment in question, and any claims to the
contrary ARE REJECTED AND DENIED.
Fact of Violation
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (2d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
Page 28
~1884
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. .Cir. 1983).
The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no way motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that it was also
motivated by the miner's unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982).
The ultimate burden of persuasion does not shift from the
complainant. Robinette, supra. See also Boich v. FMSHRC, 719
F.2d 194 (6th Cir. 1983); and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specifically-
approving the Commission's Pasula-Robinette test). See also NLRB
v. Transportation Management Corporation, U.S. , 76
L.ed.2d 667 (1983), where the Supreme Court approved the NLRB's
virtually identical analysis for discrimination cases arising
under the National Labor Relations Act.
Protected Activity
It seems clear that Mr. Nantz had a right to make safety or
health complaints about the bulldozer that he was assigned to
operate, and that these complaints are protected activities which
may not be the motivation by mine management for any adverse
personnel action against him. Secretary of Labor ex rel Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds, sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel.
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
Safety complaints to mine management or to a foreman constitutes
protected activity, Baker v. Interior Board of Mine Operations
Appeals, 595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. The
miner's safety complaints must be made with reasonable promptness
and in good faith, and be communicated to mine management, MSHA
ex rel. Michael J. Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC,
687 F.2d 194 195-96 (7th Cir. 1982); Sammons v. Mine Services
Co., 6 FMSHRC 1391 (June 1984).
Complainant's Safety Complaint Communication to the Respondent
In a number of safety related "work refusal" cases, it has
been consistently held that a miner has a duty and obligation to
communicate any safety complaints to mine management in order to
afford the operator with a reasonable opportunity to address
them. See: Secretary ex rel. Paul Sedgmer et al. v.
Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller v.
FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy,
Page 29
~1885
Inc., 8 FMSHRC 1034, 1038-40 (July 1986:; Dillard Smith v. Reco,
Inc., 9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co.,
6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal
Company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per
Curiam by agreement of the parties, July 12, 1989, U.S. Court of
Appeals for the District of Columbia Circuit, No. 89-1097.
Mr. Nantz testified that during the time Mr. Farley served
as his foreman, he complained to Mr. Farley at least two or three
times about the broken window and the dust and that Mr. Farley
assured him that it would be repaired (Tr. 18). Mr. Farley was
aware that the dozer had been damaged a day or two before he left
the job to take another assignment, but he denied that Mr. Nantz
ever complained to him about the broken window or the dusty
conditions. Mr. Farley also denied that Mr. Nantz operated the
dozer with the rear window completely out during the two days
immediately following the damage to the dozer. Mr. Farley stated
that he (Farley) operated the dozer for these two days before he
left the job, and although he responded "no" to the question "was
the glass completely out" (Tr. 234), he went on to explain that
"there was one little glass on the side that was there, but the
big glass in the back was still out" (Tr. 234). In response to a
question concerning the damage sustained by the dozer, Mr. Farley
stated "Bent the side of the cab, just a little bit in, and
knocked that one glass out" (Tr. 234). He later testified that
the side window was knocked out, but "the whole back window was
still there. Just might have been a little gap in one corner of
it, where the cab was bent" (Tr. 237).
I find Mr. Farley's testimony concerning the condition of
the dozer back window after the collision with the truck to be
contradictory. Mr. Nantz's testimony that the back window was
completely knocked out by the collision is consistent with the
testimony that he gave when his prehearing deposition was taken
on June 15, 1992. He then testified that "I noticed my window
gone" and that the window area "was all open; just gougey glass
all around the back where the truck had splattered it when it run
into the dozer", and he drew a diagram of the missing back window
area and explained it further (Deposition Tr. 22-25; Exhibit #1).
All of the other hearing witnesses who knew about the window
damage, with the exception of Mr. Farley, did not contradict
Mr. Nantz's assertion that the rear window of the dozer was
knocked out as a result of a truck backing into it. In fact,
they confirmed it.
Mr. Nantz further testified that after Mr. Fisher replaced
Mr. Farley as his foreman, he complained to Mr. Fisher about the
broken window and his dust problems "on a regular basis every
other day or so" (Tr. 20). Mr. Nantz's complaints to Mr. Fisher
were corroborated by Mr. Napier and Mr. Belcher, as well as
respondent's witness James Cornett, and Mr. Fisher himself.
Superintendent Hamilton confirmed that he was informed of
Page 30
~1886
Mr. Nantz's complaint by Mr. Fisher at the time Mr. Nantz
initially refused to operate the dozer.
I conclude and find that Mr. Nantz timely communicated his
safety complaints to mine management and specifically informed
management of his health and safety concerns with respect to the
hazardous and dusty working conditions caused by the missing rear
window of the dozer which he was assigned to operate, and that
management had a reasonable opportunity to address these concerns
and take the necessary corrective action. I further conclude and
find that Mr. Nantz's safety and health complaint communications
to management met the requirements enunciated by the Commission
in Secretary on behalf of Dunmire and Estle v. Northern Coal Co.,
4 FMSHRC 126 (February 1982); Secretary ex rel John Cooley v.
Ottowas Silica Company, 6 FMSHRC 516 (March 1984); Gilbert v.
Sandy Fork Mining Company, supra; Sammons v. Mine Services Co.
6 FMSHRC 1391 (June 1984).
The Complainant's Work Refusal
When a miner has expressed a reasonable, good faith fear of
a safety or health hazard, and had communicated this to mine
management, such as a foreman, management has a duty and
obligation to address the perceived hazard or safety concern in a
manner sufficient to reasonably quell his fears, or to correct or
eliminate the hazard. Secretary v. River Hurricane Coal Co.,
5 FMSHRC 1529, 1534 (September 1983); Gilbert v. Sandy Fork
Mining Company, 12 FMSHRC 177 (February 1990), on remand from
Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989), rev'g Gilbert
v. Sandy Fork Mining Co., 9 FMSHRC 1327 (1987).
The focus in work refusal cases is the complaining miner's
belief that a hazard exists, and the critical issue is whether or
not that belief is held in good faith and is a reasonable one.
Secretary ex rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997
(June 1983); Miller v. FMSHRC, 687 f.2D 1984 (7th Cir. 1982). In
analyzing whether a miner's belief is reasonable, the hazardous
condition must be viewed from the miner's perspective at the time
of the work refusal, and the miner need not objectively prove
that an actual hazard existed. Secretary ex rel. bush v. Union
Carbide Corp. 5 FMSHRC 993, 997-98 (June 1983); Secretary ex rel.
Pratt v. River Hurricane Coal Co. 5 FMSHRC 1529, 1533-34
(September 1983); Haro v. Magma Cooper Co., 4 FMSHRC 1935, 1944
(November 1982); Robinette, supra, 3 FMSHRC at 810. Secretary on
behalf of Hogan and Ventura v. Emerald Mines Corp., 8 FMSHRC 1066
(July 1986). The Commission has also explained that "good faith
belief simply means honest belief that a hazard exists".
Robinette, supra at 810.
The respondent maintains that the Secretary has failed to
prove that it caused a work condition which presented an
intolerable hazard to Mr. Nantz's health. The respondent asserts
Page 31
~1887
that it repaired the dozer window in a much shorter period of
time than claimed by Mr. Nantz at the hearing where he testified
that he had to operate the dozer without the back window "going
into the fourth week". The respondent asserts that this
testimony was virtually parroted, "going into the fourth week",
by Mr. Nantz's witnesses, but that when pinned down to the
actual sequence of events, Mr. Nantz agreed that in an earlier
deposition he had testified that the window was only out two or
three days before foreman Farley left the job, and at the hearing
he gave vague testimony that the window had been broken over a
period ranging from two to seven days.
The respondent further maintains that it has established
through the testimony of foreman Farley and company business
records that it was two days, Thursday and Friday, April 4 and 5,
1991, that the window was out before Mr. Farley left the job,and
that foreman Fisher's first day on the job was Monday, April 8,
1991. Respondent points out that it is undisputed that Mr. Nantz
did not work on Friday, April 5, 1991, and that there was no work
on the weekend of April 6 and 13, 1991. Under these
circumstances, the respondent concludes that Mr. Nantz had to
operate the dozer without the back window seven (7) working
days, Thursday, April 4, 1991, Monday through Friday, April 8
through 12, 1991, and Monday, April 15, 1991, prior to his
leaving work on April 16, 1991. Respondent further argues that
it is undisputed that the dozer back window was replaced during
the period Thursday, April 18, 1991, through Sunday, April 21,
1991, during which time the job was shut down. Under these
circumstances, respondent concludes that Mr. Nantz would have
only had to work two more days, Tuesday and Wednesday, April 16
and 17, 1991, with the back window out had he chosen not to leave
the job.
The respondent asserts that the broken dozer window was
repaired within ten working days of the accident which caused the
damage, and that its witnesses explained that its mechanics had
to do certain frame work so that a new window would fit, that
people from a glass company put the window in, and that this work
needed to be done on a weekend when the dozer was not operating.
The respondent argues that it attempted to alleviate the
dust problem by offering to put a clear plastic material over the
exposed back window to reduce the amount of dust, took measures
to keep the fill area where Mr. Nantz worked watered to keep the
dust down, and had dust masks available for Mr. Nantz's use while
operating the dozer. Respondent also suggested that Mr. Nantz
could have avoided the dust by availing himself of alternate
methods of operating the dozer to reduce the dust exposure.
However, since Mr. Nantz refused the offer of plastic covering,
chose not to wear a face mask, and made no attempts to avoid the
dust by maneuvering the dozer in different directions away from
the dust, or turning on his air conditioning blowers, the
Page 32
~1888
respondent concludes that his refusal to operate the machine was
unreasonable and lacking in good faith, and that any health
hazard that may have been caused to him as a result of operating
the dozer without the back window intact was the result of his
own stubborn refusal to attempt to do anything to alleviate the
problem.
The respondent is correct in its assertion that Mr. Nantz's
testimony concerning the duration of the missing back window was
equivocal. However, having viewed Mr. Nantz during the course of
the hearing, I find him to be a credible witness and I have no
reason to believe that he lied or deliberately attempted to
misstate the facts. His deposition testimony reflects that
Mr. Nantz has a ninth grade education, and he candidly stated
during the hearing that he did not document the specific number
of days the dozer window was out and that he was not positive
about the number of days which passed from the day the damage
occurred and the last day he worked.
The respondent's assertion that Mr. Nantz's witnesses
"parroted" his "going into the fourth week" testimony" is not
well taken. The only witness who made that statement was
Mr. Farler (Tr. 115). Mr. Napier testified that "a couple of
weeks or more" passed from the time the window was broken out
until the last day Mr. Nantz was on the job (Tr. 98).
Mr. Belcher testified that he did not know when the window was
knocked out, and was not sure of the elapsed time, but estimated
it at "around three weeks or something" (Tr. 130). Mr. Moore did
not know when the window was knocked out, had no idea how long it
was out before it was repaired, and stated that "it had been out
for awhile" (Tr. 145).
Superintendent Henderson did not believe the window was
broken for four weeks, but he confirmed that he did not know how
long it had been broken (Tr. 219). Mr. Henderson confirmed that
he was not involved in the repair of the window, but he explained
that the first shift foreman or mechanic would have made the
repairs, and the repairs would have entailed the straightening
and welding of the frame to keep the window from falling out
(Tr. 198). Foreman Farler did not know when the window was
repaired, and as stated previously, he testified that it was
damaged a couple of days before he left the job (Tr. 241).
Foreman Fisher, who reported to the job after the window was
damaged, testified that he had no mechanic assigned to his second
shift for repairs, but that he spoke to the first shift foreman
about fixing the window two or three times, and the foreman told
him each time that "We're going to fix it, it's going to be
fixed". Mr. Fisher could not remember whether any repair work
was being done on the window frame during this time. He
confirmed that the mine was on holiday from Thursday, April 18,
through Sunday, April 21, 1991, and that the window was replaced
Page 33
~1889
on Thursday and Friday, April 18 and 19, and that it was in when
work resumed on Monday, April 22, 1991 (Tr. 272, 282, 284).
First shift mechanic Johnnie Moore testified that "a week or so"
after Mr. Nantz left the job, his shift foreman (Brock)
instructed him to assist "the window people" in installing a new
dozer window, and that he and a welder repaired the window frame
which had not previously been straightened. Mr. Moore stated
that it took "an hour or two" to do the repair work, and an hour
to install the window.
After careful consideration of all of the testimony and
evidence, I conclude and find that approximately 13 or 14 days
passed form the time the dozer window in question was damaged
when a truck backed into it on or about April 3 or 4, 1991, until
Mr. Nantz left the job site on Tuesday, April 16, and again on
Wednesday, April 17, 1991, and that approximately 15 days passed
from the time the window was initially damaged until it was
ultimately repaired on or about April 18 or 19, 1991. I further
conclude and find that during all of this time, little or no work
was done to repair the dozer window frame or to replace the
missing window.
Although the respondent's assertion that its mechanics had
to do certain frame work so that a new window would fit and that
people from a glass company put the window in is true, I am not
convinced that this work needed to be done on a weekend when the
dozer was not operating. As a matter of fact, the mine was down
for the weekends of April 6 and 13, 1991, and no work was done to
repair the broken window. Under the circumstances, and given the
fact that there is no evidence of any repair work to the dozer
during at least two successive weekend periods when the mine was
down and the dozer was not operating, I find the respondent's
assertion that it could only repair the dozer on a weekend when
the dozer was not operating to be less than credible. Further,
the respondent's suggestion that the repair work necessary to
replace the missing window was some monumental task is also
lacking in credibility, and the unrebutted and credible testimony
of the mechanic who did the work establishes that the repairs
were made and the window was replaced in three hours during a
normal working shift.
Respondent asserts that all of the other witnesses who were
questioned concerning whether, in their opinion, operating this
bulldozer without the back window for a limited period of time,
even up to a month, would constitute a hazard to a miner's
health, unanimously said "no." Respondent suggests that this is
relevant to the issue and good faith of Mr. Nantz's belief to the
contrary. Respondent further submits that it is also relevant
that the dozer operator on the first shift did not complain or
see fit to quit, and that Mr. Doolin, who operated the dozer on
April 16 and 17, 1991, before it was repaired, testified that he
Page 34
~1890
did not have any problems from the dust because he manuevered the
dozer to avoid the dust.
I have carefully reviewed the testimony of all of the
witnesses in this case, including the five witnesses called by
the respondent (superintendent Hamilton, foremen Farley and
Fisher, and dozer operators Cornett and Doolin). Except for
Mr. Hamilton and Mr. Farley, none of the other witnesses called
by the respondent, or the four witnesses called for Mr. Nantz,
were asked or testified about their opinion concerning the
operation of a dozer in a dusty environment with the back window
missing.
Superintendent Hamilton was of the opinion that a "short
term, four to six weeks" exposure to dust while operating a dozer
with a missing back window would not cause him a health problem
(Tr. 203-204). Foreman Farley did not believe that he would
suffer serious consequences from operating a dozer in heavy dust
for a period of one month, and although he stated that he would
not object to doing so, he indicated that he would not like it
(Tr. 244-245). Further, although Mr. Farley stated that he has
operated a dozer with an open cab in dust in the past, the
confirmed that he had never operated a dozer with a closed cab
with the back window broken out (Tr. 246).
The respondent's reliance upon the opinions of Mr. Hamilton
and Mr. Fisher in support of its assertion that it is relevant to
the question of Mr. Nantz's reasonable good faith refusal to
operate the dozer is rejected. The critical question here is
whether or not Mr. Nantz reasonably and honestly in good faith
believed that the operation of a dozer with a missing back window
would be injurious and hazardous to his health and safety because
of the dust to which he was subjected and exposed to because of
the missing window, and whether or not Mr. Nantz reasonably and
in good faith believed that he would be required to operate the
dozer with the missing back window at the time of his initial
work refusal on Tuesday, April 16, 1991, and his subsequent work
refusal of Wednesday, April 17, 1991.
The respondent's suggestions that the use of plastic
material is routinely used to keep out cold and dust in dozers
with open cabs, that its use does not impair visibility, and that
Mr. Nantz's testimony that it does impair his visibility was
contradicted by virtually every witness who was questioned about
it, must be viewed in context, and I have given it little weight.
Except for Mr. Nantz, none of the four witnesses called by the
Secretary, which included two endloader operators, a mechanic,
and an equipment serviceman, testified about the use of plastic
coverings. Dozer operator Cornett, called by the respondent as a
witness, said nothing about the use of plastic coverings or
whether or not it might impair his visibility.
Page 35
~1891
The only witnesses who testified about the use of the
plastic material were superintendent Hamilton, and foremen Farley
and Fisher. Mr. Hamilton simply stated that plastic material has
been placed on the back window of lifts for protection, and he
did not believe that it decreased visibility at night because
extra illumination is provided in the shot and fill areas
(Tr. 207-208).
Foreman Farley testified that the has used plastic coverings
on open cab equipment that he has operated "to keep the air
knocked off" in the winter time in order to stay warm, and that
his was a common practice for open cab equipment operators
(Tr. 247). Mr. Farley conceded that Mr. Nantz would have a dust
problem if the front window of his dozer were missing
(Tr. 256-257).
Foreman Fisher testified that he used plastic covering while
operating open cab dozers during the winter time, and that the
plastic was wrapped around the opened cab to keep the heat
generated by the radiator inside the cab. When asked if the
plastic would keep the dust out, he responded "No, it wouldn't
keep it out, but it would help, I mean, I never didn't even think
about that dust really. . .if the dust got too bad I always got a
rag or something and tie over my mouth, or nose, or get me a dust
mask or something". Mr. Fisher did not believe that the plastic
impeded his visibility (Tr. 265).
There is no evidence that Mr. Nantz's foreman, or the mine
superintendent, offered to show Mr. Nantz how to maneuver his
dozer to avoid the dust, nor is there any evidence that the
respondent required its personnel to use dust masks while working
in dusty areas. Highlift operator Belcher testified that some
drill operators use dust masks, and others do not, and that he
does not use one because his machine has an enclosed cab . With
respect to the use of plastic coverings for equipment with open
cabs, I take note of the fact that the dozer that Mr. Nantz was
assigned to operate had an enclosed cab, and I believe that it is
was not unreasonable for Mr. Nantz to expect such a piece of
equipment to be maintained in a serviceable condition, including
the timely repair or replacement of a broken window that is
obviously intended to maintain the cab area as an enclosed
working environment.
I am not persuaded that the use of the plastic covering was
routinely used by the respondent as a specific preventive measure
against dust exposure. The respondent's testimony reflects that
plastic coverings are sometimes used by operators in the winter
time to keep their open cab areas warm. Mr. Nantz was operating
the dozer during the month of April and it had an enclosed cab
area. Nor am I persuaded that the respondent's available water
Page 36
~1892
trucks adequately kept the fill area wet enough to control the
dust generated by the trucks working in the fill area where
Mr. Nantz was required to operate the dozer with the missing rear
window. In the final analysis, had the respondent addressed
Mr. Nantz's safety and health complaints concerning the missing
window and the resulting dust exposure in a more timely fashion
by replacing the window, or taking the dozer out of service until
it was repaired, there would be no need for makeshift coverings,
dust masks, water trucks, or the maneuvering of the dozer to
avoid the dust.
I conclude and find that the respondent failed to reasonably
and timely respond to Mr. Nantz's communicated safety and health
complaints with respect to the hazardous dust conditions to which
he was exposed as a result of the missing rear window of the
dozer that he was assigned to operate. Although the evidence
clearly establishes that Mr. Nantz communicated his complaints to
foreman Fisher, and that Mr. Fisher assured him that the window
would be repaired each time Mr. Nantz complained about it,
Mr. Fisher reacted by simply speaking to the day shift foreman
two or three times about fixing the window. Rather than insuring
that repairs were made timely, Mr. Fisher simply accepted the day
foreman's assurance that it would be done.
In my view, since Mr. Fisher was Mr. Nantz's first-line
supervisor, he had a duty and obligation, as part of his
supervisory and managerial responsibilities, to respond in a
more positive manner by insuring that the window was promptly
repaired, or by tagging or removing the dozer from service until
it was repaired. Instead of doing this, Mr. Fisher played a
passive role, even though the means of addressing Mr. Nantz's
health and safety concerns were directly within his supervisory
and managerial control. Under the circumstances, I conclude and
find that shifting the burden to Mr. Nantz by expecting him to
protect himself from the dust hazards to which I believe he was
exposed to, asking him to accept a makeshift plastic covering,
expecting him to shake the dust from the covering with his hands
while at the controls of his dozer, using his air conditioning
blower, wearing a dust mask, or expecting him to maneuver his
dozer in different directions to avoid the dust, were
unacceptable and unreasonable responses to Mr. Nantz's safety and
health concerns.
Although the respondent may not reasonably be expected to
provide an absolutely clean working environment free of any dust,
on the facts of this case where it seems clear to me that the
source of the dusty conditions which Mr. Nantz had to endure
while operating the dozer with a missing back window, was within
the direct control of the operator, and were easily correctable,
I cannot conclude that Mr. Nantz acted unreasonably when he
refused to operate the dozer until the window was replaced. In
view of all of the foregoing, and after careful consideration of
Page 37
~1893
all of the credible testimony and evidence in this case, I
conclude and find that Mr. Nantz's refusal to operate the dozer
with the missing back window on the two final days of his
employment with the respondent was reasonable, and that his
decision in this regard was prompted by his safety and health
concerns related to the hazardous exposure to dust resulting from
the missing window, and a reasonable good faith belief that to
continue to operate the dozer in the condition that it was in
would place him at risk. I further conclude and find that
Mr. Nantz's work refusals constituted protected work refusals
pursuant to the Act.
The Alternate Work Refusal
The respondent argues that inasmuch as Mr. Nantz refused
Mr. Fisher's offer to operate a loader in lieu of the dozer with
the missing back window on the evening of April 16, 1991, and
since Mr. Nantz did not contend that he was unable to operate the
loader, or show that the loader was not safe to operate, his
refusal to operate the loader was unreasonable. The respondent
concludes that Mr. Nantz left work after refusing to operate the
loader because he believed that he would have to go back to
operating the dozer.
In support of its position, the respondent emphasizes the
fact that both Mr. Fisher and Mr. Hamilton testified that had
Mr. Nantz agreed to operate the loader he would not have been let
go. The respondent points out that Mr. Nantz refused to operate
the loader on April 16, 1991, and that when he returned to the
mine on April 17, 1991, he simply came back to get his paycheck
and find out if the dozer window had been repaired and to leave
his phone number so that Mr. Fisher could call him when it was
repaired. The respondent asserts that Mr. Nantz made no offer
whatsoever to do other work that day and simply left the job
site.
Based on Mr. Nantz's refusal to operate the loader on
April 16, 1991, and his failure to report for work on April 17,
1991, showing up only to find out if the dozer had been repaired
and to leave his phone number, the respondent concludes that it
had sufficient reason not to call Mr. Nantz back to work after
the window was repaired and to consider that he had voluntarily
quit his job. The respondent suggests that since there were two
incidents involved in this case, namely, Mr. Nantz's refusal to
operate his own dozer, and his refusal to operate the loader
offered to him, there may have been a mixed motive situation
presented in this case.
The respondent submits that it has met its burden of proving
that its failure to call Mr. Nantz back to work was motivated by
his total lack of willingness to perform any job that was
requested of him, not just the running of his own dozer. The
Page 38
~1894
respondent concludes that it had a legitimate interest in having
its operations continue, and that it was not reasonable for
Mr. Nantz to refuse to operate the loader so long as it was
available to him so that at least the operations could continue
rather than refusing to do so and walking off the job. In these
circumstances, the respondent further concludes that its refusal
to call Mr. Nantz back to work was reasonable and did not
constitute a discharge on the basis of protected activity.
I take note of the fact that the Secretary's complaint in
this case does not allege that the respondent's failure to call
Mr. Nantz back to work after the dozer window was repaired
constituted another act of discrimination, and the Secretary's
posthearing brief does not address this issue.
Mr. Nantz testified that when he reported for work on
April 16, 1991, Mr. Fisher confirmed that the dozer window had
not been repaired, and he then informed Mr. Fisher that he did
not want to operate the dozer, but would be willing to "run the
nine(9) or go out here somewhere and reclaim, out of the dust,
and let someone else run the fill til I get my window in. Or,
you know, run the sweeper broom or whatever else you got nobody
else on so I could run to where I won't have to eat that dust
another night, til he got the window in" (Tr. 25).
Mr. Nantz stated that Mr. Fisher informed him that he had no
other dozers for him to operate, but there was "a chance" that he
could run the loader for an hour or an hour and a half, but that
he would then be sent back to the fill to operate the dozer since
the loader may be needed in the shot area. Mr. Nantz stated that
he did not want to run the loader because he believed that the
regular loader operator would get his loader back in an hour and
half to start loading coal, and he (Nantz) believed that he would
have to go back on the dozer and continue operating it with the
missing window in the dust for the rest of the shift (Tr. 84).
Mr. Nantz testified further that when he next returned to
the mine on April 17, 1991, Mr. Fisher again confirmed that the
dozer window had not been repaired, and told him that he could
"either run it like it is or go to the house. You're fired if
you don't run it" (Tr. 26-27). Mr. Nantz then picked up his
paycheck and went home.
Mr. Napier and Mr. Belcher, both of whom where present on
the same work shift with Mr. Nantz on the first evening that
Mr. Nantz refused to operate the dozer with the missing window,
both testified that they heard Mr. Nantz offer to run any other
available equipment so that he would not have to work in the dust
with his dozer, and that Mr. Fisher told Mr. Nantz that the had
nothing available for him to do that evening (Tr. 101, 133-134,
138).
Page 39
~1895
Mr. Napier had no particular knowledge of the events of the
second evening when Mr. Nantz again refused to operate the
loader, and he confirmed that he never heard Mr. Fisher offer to
let Mr. Nantz run the 980 loader (Tr. 105). Mr. Belcher, the
regular loader operator, testified about a conversation he heard
between Mr. Fisher and Mr. Nantz which he believed took place on
the first evening in question, but was not sure. Mr. Belcher
stated that Mr. Fisher offered to let Mr. Nantz run the loader
"for awhile", but he did not know if Mr. Nantz informed
Mr. Fisher that he did not want to run the loader, or could not
run it. Mr. Belcher explained that he ran the loader for a full
10-hour shift most of the time, but that on the evening in
question he was going to fill the water truck with water so that
Mr. Fisher could water the fill area, and that he would have
resumed cleaning coal in the pit later that evening with the
loader for the remainder of the shift. Mr. Belcher estimated
that he would not need to use the loader for "a couple of hours",
but that after he finished with the water truck he would have to
use the loader again (Tr. 136-140).
Mr. Hamilton testified that when Mr. Fisher called him the
first evening to inform him that Mr. Nantz did not want to run
his dozer, Mr. Fisher told him that he had offered the use of the
loader to Mr. Nantz, but that Mr. Nantz wanted to run his dozer
and have it repaired and that he did not want to run any other
equipment (Tr. 200).
Mr. Cornett, who was also present during the Nantz-Fisher
conversation on the first evening, confirmed that Mr. Fisher
offered the use of the loader to Mr. Nantz, but Mr. Cornett was
nor sure whether Mr. Nantz told Mr. Fisher that he would not, or
could not, operate the loader (Tr. 225-228).
Mr. Fisher testified that on the first evening of April 16,
1991, he offered to let Mr. Nantz operate the 980 loader, and he
informed Mr. Nantz that he intended to use the water truck to
settle the dust in the fill area, and that if the loader was
needed later that evening for cleaning coal, Mr. Nantz could then
return to operating his dozer. Mr. Fisher explained that he told
Mr. Nantz that he would let him run the loader all night if there
was no coal to be cleaned with the loader, but that if he needed
to, he would put Mr. Nantz back on his dozer (Tr. 283).
Mr. Fisher stated that Mr. Nantz's response was "No, I'm not
running the 980, I'm going home" and told him to have the glass
put back in the dozer and to call him when this was done, and
that he would then return to work (Tr. 267-268).
Mr. Fisher believed that Mr. Nantz was qualified to operate
the loader and Mr. Nantz never told him otherwise. Mr. Fisher
also believed that no coal would have been cleaned on the evening
of April 16, 1991, and that there was a possibility that
Mr. Nantz would have operated the loader for most of the shift
Page 40
~1896
had he accepted his offer. Although Mr. Nantz would have been
working in the same fill area with the loader, Mr. Fisher pointed
out that the loader had all of its windows intact. Mr. Fisher
confirmed that he did not consider assigning Mr. Nantz to drive
the water truck, and leaving Mr. Belcher on the loader, because
he did not know whether Mr. Nantz could drive the truck, but he
admitted that he did not ask Mr. Nantz whether he could operate
the truck (Tr. 267-269).
With regard to the events of the second evening of April 17,
1991, Mr. Fisher testified that after he informed Mr. Nantz that
his dozer window had not been replaced, Mr. Nantz informed him
that he was going home and he asked him to call when the window
was replaced and that he would return to work at that time.
Mr. Fisher confirmed that he informed Mr. Nantz that he needed to
run the dozer and that if he (Nantz) did not run it, he (Fisher)
would "get somebody up here that will" (Tr. 271). There is no
evidence that Mr. Fisher made any further offers of alternate
work on this evening, nor is there any evidence that Mr. Nantz
asked for alternate work.
After careful review and consideration of all of the
testimony and evidence concerning the alternate work issue, I
conclude and find that the respondent's position is not well
taken and it is rejected. While it is true that Mr. Fisher
offered to allow Mr. Nantz the use of a loader which had all of
its windows intact while continuing to work in the dusty fill
area where Mr. Nantz had previously been operating his dozer with
the missing back window, I am not persuaded that this offer of
alternate work, which in the circumstances then presented was
equivocal and conditional, constituted an adequate and reasonable
response to Mr. Nantz's complaints about the dust to which he was
exposed, nor am I convinced that the offer sufficiently quelled
Mr. Nantz's concerns about his hazardous exposure to dust.
I conclude and find that Mr. Nantz's refusal to operate the
loader was based on a reasonably founded belief that after a
brief stint on the loader, he would soon find himself back on the
dozer with the missing window operating in the dust again.
Mr. Nantz testified that Mr. Fisher informed him that "there was
a chance" that he could operate for an hour or so, but that he
would have to go back to the dozer because the loader would be
needed elsewhere. Mr. Belcher, the regular loader operator,
testified that he heard Mr. Fisher offer Mr. Nantz the use of the
loader "for awhile", and Mr. Belcher estimated that after two
hours, he would again need the loader to resume loading coal in
the pit area.
Mr. Fisher initially testified that he did not believe that
coal would have been cleaned on the evening of April 16, 1991,
and that there was a possibility that Mr. Nantz could have
operated the loader for most of the shift. He also testified
Page 41
~1897
that he informed Mr. Nantz that if the loader were needed to
clean coal, he (Nantz) would have to resume operating the dozer
again (Tr. 267-268). Mr. Fisher reiterated this testimony when
he later testified that he would have let Mr. Nantz run the
loader all night if he did not have coal to clean, and if he
needed to, he would have returned Mr. Nantz back to his dozer
later in the shift (Tr. 283).
I find Mr. Fisher's testimony to be rather equivocal and
lacking in credibility, and it is contradicted by the credible
testimony of loader operator Belcher who seemed confident that he
would only give up his loader for approximately two hours before
resuming his work in the pit cleaning coal with the loader. It
seems to me that if Mr. Fisher truly believed that no coal would
be cleaned during the shift in question, thereby freeing up the
loader for use by Mr. Nantz for the entire shift, he would have
made this clear to Mr. Nantz, particularly since Mr. Nantz had
complained to him about the dust and was about to leave the job
site and interrupt production. Instead, Mr. Fisher qualified his
offer of the use of the loader by making it conditional and
placing Mr. Nantz in the position of not knowing how long he
might be on the loader before again being required to operate the
dozer in a dusty work environment. Under the circumstances, I
conclude and find that Mr. Nantz was not unreasonable in refusing
to operate the loader, and the fact that he did does not render
his refusal unprotected activity.
The Complainant's Termination
Foreman Fisher testified that after he informed superintendent
Hamilton on April 16, 1991, that Mr. Nantz refused to operate the
dozer Mr. Hamilton instructed him "to do what you have to do", and
commented "if they're going to work, they're going to work, . . . .
if they ain't, we're going to have to get someone that will work"
(Tr. 269-270). Mr. Fisher confirmed that when Mr. Nantz returned to
the mine on April 17, 1991, and found that he dozer was not
repaired, he informed him that he would not operate the dozer in
that condition. Mr. Fisher stated that he then told Mr. Nantz that
if he did not want to run the dozer "I would get somebody up here
that will", and that "I have to take it you're quitting your job,
and I'll have to get somebody in here in the dozer" (Tr. 271, 286).
Mr. Fisher further confirmed that he immediately hired a replacement
dozer operator that same evening and that the decision to do so was
his (Tr. 271, 286).
Mine Superintendent Hamilton confirmed that after Mr. Fisher
called him and informed him that Mr. Nantz had refused to operate
the dozer and was going home, he told Mr. Fisher that if Mr. Nantz
would not operate the dozer and went home, "we would have to get
someone else" (Tr. 200). Mr. Hamilton indicated that Mr. Nantz
would not have been "fired", "replaced" or "let go" if he had
remained at work and operated the 980 loader (Tr. 201).
Page 42
~1898
Mr. Nantz testified that when he returned to the mine to pick
up his pay check the day after he initially refused to operate the
dozer and went home, foreman Fisher again confirmed that the window
had not been repaired and instructed him to "either run it like it
is or go to the house. You're fired if you don't run it"
(Tr. 27-28). I find Mr. Nantz's testimony that Mr. Fisher gave him
an option of operating the dozer with the missing rear window or
"going to the house" to be credible and I believe that this is what
Mr. Fisher told him. As noted by the Commission in Charles Conatser
v. Red Flame Coal Company, Inc., 11 FMSHRC 12, 14 (January 1989),
the phrase "go to the house" is synonymous with a discharge in the
mining industry. See: Moses v. Whitley Development Corp., 4 FMSHRC
1475, 1479 (August 1982), aff'd sub nom. Whitley Development Corp.
v. FMSHRC, No. 84-3375, slip op. at 2 (6th Cir., July 31, 1985);
Secretary on behalf of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147
n. 5 (September 1988).
A constructive discharge occurs whenever a miner engaged in
protected activity can show that an operator created or maintained
conditions so intolerable that a reasonable miner would have felt
compelled to resign. Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir.
1988) at 461-463. Whether such conditions are so intolerable is a
question for the trier of fact. Supra, at 463. See also: Stenson
Begay b. Liggett Industries, Inc., 11 FMSHRC 887 (May 1989), aff'd,
Liggett Ind. v. FMSHRC, 923 F.2d 150 (10th Cir. 1991) of Secretary
ex rel. Harry Ramsey v. Industrial Constructors, Inc., 11 FMSHRC
1585 (August 1989), rev'd, 12 FMSHRC 1587 (August 1990).
I conclude and find that the credible and unrebutted testimony
of Mr. Nantz, corroborated by the co-workers who worked with him on
the same shift, supports his contention that during the time he was
assigned to operate the dozer with the missing rear window, he was
exposed to hazardous dust conditions which made it difficult for him
to clearly see the trucks operating in the fill area where he was
pushing fill with the dozer, and more significantly, caused him
personal problems, including choking and breathing problems
resulting from the dust coming into his cab area through the missing
rear window. I further conclude and find that the adverse health
and safety hazards caused by the dusty conditions as described by
Mr. Nantz, and which stand unrebutted by the respondent, can
reasonably be characterized as "intolerable". In these
circumstances, I further conclude and find that Mr. Nantz acted
reasonably when he left the job site on April 15, 1991, after
refusing to operate the dozer, and again on April 16, 1991. In both
instances, the respondent had failed to take timely action to repair
the dozer, or to take it out of service so that it could be repaired
promptly, and foreman Fisher left Mr. Nantz with little hope of
reasonably addressing his safety and health complaints when he gave
him the option of operating the dozer with the missing window or
going home.
Page 43
~1899
Mr. Hamilton and Mr. Fisher maintained that Mr. Nantz quit his
job and that he was not fired. However, they also asserted that
Mr. Nantz would not have been let go had he opted to stay at work
and operate the loader offered by Mr. Fisher. I fail to see the
distinction between a "let go" and a "firing". On the facts of this
case, it seems rather obvious to me that after speaking with
Mr. Hamilton on April 16, 1991, after Mr. Nantz refused to operate
the dozer and went home, Mr. Fisher had the authority "to do what he
had to do" if Mr. Nantz continued to refuse to operate the dozer,
and that he was prepared to summarily fire Mr. Nantz if he refused
to operate the dozer with the missing rear window.
I conclude and find that notwithstanding the offer of the
loader by Mr. Fisher to Mr. Nantz, in the circumstances then
presented, including the failure by the respondent to reasonably
respond to Mr. Nantz's prior complaints by seeing to it that the
window was promptly replaced, a relatively simple matter which would
have corrected the dust conditions, Mr. Nantz acted reasonably when
he decided to leave the job site after refusing to operate the dozer
or the loader. I further conclude and find that Mr. Nantz had every
reason to believe that if he had stayed on the job operating the
loader for an hour or two, he would soon find himself back on the
dozer for the rest of the shift working in unhealthy and hazardous
dust conditions with no reasonable expectation that management would
eliminate these conditions. Under all of these circumstances, I
conclude and find that Mr. Nantz's departure from the job site was
reasonable and justified and constituted a constructive discharge as
a result of protective work refusals. Accordingly, I further
conclude and find that Mr. Nantz was unlawfully discriminated
against in violation of section 105(c) of the Act, and the complaint
of discrimination IS SUSTAINED.
Civil Penalty Assessment
It seems clear to me from the statutory language found in
section 105(c)(3) of the Act that violations of the discrimination
prohibitions found in section 105(c)(1) are subject to the civil
penalty assessment sanctions pursuant to section 110(a), and the
respondent's arguments to the contrary are rejected. Further,
respondent's assertions at pages 42-43 of its posthearing brief that
this action has been brought by the Commission and that the
Commission failed to advance any evidence whatsoever as to the
appropriateness of any civil penalty assessment are erroneous. This
matter has been brought by the Secretary, and the Commission's role
is to consider any appeal taken by any party in response to the
presiding judge's adjudication of the case.
The burden of presenting evidence to establish an appropriate
civil penalty assessment based on the statutory criteria found in
section 110(i) of the Act lies with the Secretary. As noted
earlier, the presiding judge is not bound by the Secretary's
proposed penalty assessment, nor is he bound by MSHA's regulatory
Page 44
~1900
penalty assessment criteria found in Part 100, Title 30, Code of
Federal Regulations. Any penalty assessment made by the judge is on
a de novo basis, taking into account the record before him and the
statutory criteria found in section 110(i) of the Act.
The respondent is correct in its assertion that the Secretary
failed to present any hearing testimony or evidence in support of
the proposed civil penalty assessment of $8,000, and the
Secretary's brief does not address the civil penalty proposal or any
of the criteria upon which the Secretary made the determination that
$8,000, is an appropriate penalty assessment for the discrimination
violation in question. The only information submitted by the
Secretary is found in Exhibit "A" of the amended complaint. That
information includes the mine and company coal production tonnage
for 1990 (203,536 and 856,573), the number of assessed violations
for the 24-month period prior to the violation in question (26), the
number of inspection days during this period (20), the number of
violations per inspection day (1.3), and the number of previously
assessed section 105(c) violations (None), and some meaningless and
unexplained "points" pursuant to 30 C.F.R. 100.3(b) and (c).
Although MSHA special investigator Brock testified in this case, his
testimony was mostly limited to an explanation of his backpay
computations, and he offered no testimony or evidence concerning any
of the civil penalty criteria.
The respondent's suggestion that no civil penalty should be
assessed because of Mr. Nantz's contributory negligence for failing
to avail himself of the dust protection offers made by the
respondent, and failing to taken precautions to avoid the dust, is
rejected. I have previously rejected the respondent's attempts to
shift the burden of correcting or mitigating the hazardous
conditions which prompted the work refusal in this case to
Mr. Nantz, and it seems well settled that a mine operator's
negligence may not be imputed to the miner, and that the Mine Act
is a strict liability statute.
Evaluation of the relevant criteria pursuant to section 110(i)
of the Act is necessary to determine an appropriate penalty
assessment in this case. I conclude and find that the respondent is
a small mine operator with no prior history of section 105(c)
violations. I further conclude and find that pursuant to the Act, a
mine operator such as the respondent has a high duty of care to
correct or prevent conditions or practices hazardous to the health
or safety of its miner workforce. In this case, the evidence
establishes that Mr. Fisher was well aware of the missing dozer back
window, and Mr. Nantz's complaints concerning the dust, yet he chose
not to insure that the window was replaced promptly, or to remove
the dozer from service. Instead, he gave Mr. Nantz the option of
running the dozer with the missing window in the dust, or going
home. Under the circumstances, I conclude and find that the
violation resulted from a high degree of negligence on the part of
foreman Fisher which is imputed to the respondent.
Page 45
~1901
In Consolidation Coal Company, 8 FMSHRC 890, 895-899 (June
1986), the Commission took note of the concern expressed by Congress
in eliminating respiratory dust illnesses and other mine occupation-
related diseases. Although that case concerned the Secretary's
underground respirable dust standards, I find the Commission's
observation that prevention of occupational illnesses was among the
fundamental purposes underlying the Mine Act to be equally
applicable in this case. The fact that Mr. Nantz did not prevail in
his pneumoconiosis workers' compensation claim is irrelevant to any
gravity finding, and the actual existence of a hazard need not be
proved by the miner to establish that he had a reasonable and good
faith belief that a hazard existed at the time of the work refusal.
On the facts of this case, I have accepted Mr. Nantz's credible and
unrebutted testimony with respect to the hazardous and unabated dust
conditions to which he was exposed to while operating the dozer with
the missing window, and it seems clear to me that his employment
termination was the direct result of these conditions. Under the
circumstances, I conclude and find that the discrimination violation
was serious. Further, given the fact that the respondent failed to
reasonably respond to Mr. Nantz's dust complaints, the relatively
extended period of time which passed with no corrective action by
the respondent, and the fact that repairs were made after Mr. Nantz
was forced to leave his job, I cannot conclude that respondent acted
in good faith to correct the conditions, or that it rapidly
addressed Mr. Nantz's complaints.
I find no credible evidentiary support for the Secretary's
proposed civil penalty assessment of $8,000, particularly for a
small mine operator with no prior history of discriminatory
practices or violations, and the proposed penalty IS REJECTED.
However, based on my consideration of the record before me, and my
de novo consideration of the criteria found in section 110(i) of the
Act, and in the absence of any showing by the respondent that any
civil penalty assessment will adversely affect its ability to
continue in business, I conclude and find that a penalty assessment
of $1,000, is reasonable and appropriate in this case.
Relief and Remedies
The amount of compensation due Mr. Nantz is in dispute. The
Secretary has filed a claim of backpay in the amount of $32,355.15,
through August 12, 1992 (Exhibit C-1), and Inspector Brock testified
with respect to the computations which are reflected in that
document. The respondent disputes this amount of backpay and points
out that it was computed upon Mr. Nantz's purported working an
average of 58 1/2 hours per week, whereas its evidence reflects that
Mr. Nantz worked an average of 39.6 hours per week and that there
was a layoff to which Mr. Nantz would have been subject from
August 14, 1991, until October 1, 1991 (Exhibit R-5, posthearing
brief, pgs. 39-40).
Page 46
~1902
I find Mr. Nantz's testimony concerning his normal work week
and overtime to be somewhat confusing. He initially testified that
he was paid $10.50 per hour straight time and $15.75 per hours
overtime, and that he worked five and six days a week, ten hours a
day. He confirmed that he worked 40 hours a week at the regular
time hourly rate, and that any hours over 40 was overtime
(Tr. 14-15). In subsequent responses to certain questions
concerning what he may have told Inspector Brock, Mr. Nantz
testified that he worked "five days a week, ten hours a day, and a
lot on Saturdays, ...maybe eight and one-half hours", and one of the
questions asked of him inferred that he may have worked a fifty-hour
regular week, and overtime only on Saturdays (Tr. 63-65).
I take note of the fact that a copy of a workers' compensation
application executed by Mr. Nantz on June 28, 1991, and submitted by
the respondent, contains a statement that Mr. Nantz's wage while
employed by the respondent was "$10.50 an hour for 58 hours a week
(Item M of application). The respondent has submitted additional
information, including copies of payroll and work attendance records
in support of its rebuttal to the Secretary's backpay claims based
on Inspector Brock's computations. Inspector Brock confirmed that
Mr. Nantz's initial complaint stated that he worked 58 hours a week
in 1991 (Tr. 172-173). Mr. Hamilton testified that 50 hours a week
was a normal work week, and that anything over 40 hours is overtime
(Tr. 195).
The respondent further asserts that Mr. Nantz failed to give
Inspector Brock any verification of the wages he had earned since
his termination or any information concerning his unemployment
insurance benefits he had received during this period of time. The
parties are in agreement that any reduction of back pay compensation
due for unemployment payments is a matter of discretion with the
presiding judge, Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983).
Mr. Nantz testified to a logging job and employment with Clover
Fork Mining company after his termination, as well as his
unemployment compensation (Tr. 27-30; 57-62). His deposition of
June 15, 1982, also makes mention of work with L.C. logging
(Tr. 18-19), and other losses he allegedly incurred (Tr. 60-63).
It is incumbent on the parties, not the judge, to evaluate this
information and reduce it to specific time periods and dollar
amounts, with credible evidentiary support, in support of their
respective claims as to precisely what Mr. Nantz may be entitled to
in terms of compensation. The parties were specifically advised in
the course of the hearing that they were expected to support and
"work out" among themselves the remedial compensation due Mr. Nantz
in the event he prevailed in this matter (Tr. 166-167).
The record contains several exhibits concerning certain medical
expenses incurred by Mr. Nantz pursuant to his employee insurance
benefits provided by the respondent (Exhibits C-3 through C-15).
During opening arguments, the Secretary's counsel asserted that
Page 47
~1903
Joint Exhibit J-2, contains the stipulated benefit amounts that
Mr. Nantz would otherwise be entitled to under the company provided
medical insurance policy (Exhibit J-3; Tr. 3-4).
Citing the Commission's decisions in Metric Constructors, Inc.,
4 FMSHRC 791 (April 1982 (Judge Lasher), aff'd by the Commission at
6 FMSHRC 226 (February 1984), aff'd, Brock v. Metric Constructors,
Inc. 766 F.2d 469 (11th Cir. 1985), and relying on Mr. Nantz's
testimony (Tr. 27), that he waited two or three weeks after his
termination on April 16, 1991, waiting to see if the respondent
would call him back to work, before attempting to find other work,
the respondent argues that at least three weeks should be deducted
from any back pay award to Mr. Nantz for his failure to immediately
seek other employment.
The respondent asserts that since Mr. Nantz made no reasonable
efforts to seek reemployment with the respondent, and that he
"basically refused to consider any reemployment by the respondent
unless he was paid his back pay", he should be denied any back pay
in this case. The respondent's suggestion that it made an "offer"
of reemployment to Mr. Nantz is unsupported, and I find no evidence
that this was the case. The respondent's arguments are rejected.
ORDER
1. The respondent IS ORDERED to reinstate Mr. Nantz to his
former position with full backpay and benefits, with interest,
from April 16, 1991, to the date of his reinstatement, at the
same rate of pay, on the same shift, and with the same status
and classification that he would now hold had he not been
unlawfully discharged. Interest shall be computed in
accordance with the Commission's decision in Secretary/Bailey
v. Arkansas-Carbona, 5 FMSHRC 2042 (December 1983), and at the
adjusted prime rate announced semi-annually by the Internal
Revenue Service for the underpayment and overpayment to taxes.
2. The respondent IS ORDERED to compensate Mr. Nantz for all
legitimate medical expenses incurred by him since the date of
his termination which would have been covered by any employee
medical insurance carried by the respondent for his or his
family member's benefit, reimbursement or coverage of which
would have been afforded him had he not been terminated.
3. The respondent IS ORDERED to expunge from Mr. Nantz's
personnel file and/or company records all references to the
circumstances surrounding his employment termination of
April 16, 1991.
4. The respondent IS ORDERED to pay a civil penalty assessment
of $1,000, for the discriminatory violation which has been
sustained.
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~1905
Counsel for the parties ARE ORDERED to confer with each other
during the next fifteen (15) days with respect to the aforesaid
remedies due Mr. Nantz, and they are encouraged to reach a mutually
agreeable resolution or settlement of these matters, and any
stipulations or agreements in this regard shall be filed with me
within the next thirty (30) days.
In the event counsel cannot agree, they are to notify me of
this within the initial fifteen (15) day period. If there are any
disagreements, counsel ARE FURTHER ORDERED to state their respective
positions on those compensation issues where they cannot agree, with
supporting arguments or specific references to the record in this
case, and they shall submit their separate proposals, with
supporting arguments and specific proposed dollar amounts for each
category of relief (basic backpay, overtime, medical insurance
claims, other claims), within thirty (30) days. If the parties
believe that a further hearing may be required on the remedial
aspects of this matter, they should so state.
I retain jurisdiction in this matter until the remedial aspects
of this case are resolved and finalized. Until those determinations
are made, and pending a finalized dispositive order by the
undersigned presiding judge, my decision in this matter is not
final. In addition, payment by the respondent of the civil penalty
assessment made by me in this matter is held in abeyance pending a
final dispositive order.
George A. Koutras
Administrative Law Judge
Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 32715
(Certified Mail)
David O. Smith, Marcia A. Smith, Esqs., 100 West Center Street, P.O.
Box 699, Corbin, KY 40702 (Certified Mail)
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