Leeco, Incorporated

Plain-English summary

Leeco operated an underground coal mine, and Frank Scott worked there as a miner and electrician. Scott alleged that he had been required to work underground while the mine fan was off and had been asked to handle energized high-voltage cable and work on guards while belts were running. Leeco disputed key parts of his account and argued that his discrimination complaint was pretextual. Judge David F. Barbour found that the complaint was not clearly fraudulent, without merit, or pretextual, and ordered Leeco to temporarily reinstate Scott at the same or an equivalent position and rate of pay.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c)(2) and 30 C.F.R. § 75.313(c)(1)
• Outcome: The temporary-reinstatement application was granted, and Leeco was ordered to reinstate Frank Scott.
• Key point: At this stage, the judge decided only whether the discrimination complaint was frivolous, not whether Scott would ultimately prevail.

Full text (FMSHRC public release)

[DOCID: f:k96-52d.wais]

LEECO, INCORPORATED
December 5, 1995
KENT 96-52-D

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

December 5, 1995

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), :
On behalf of Frank Scott, : Docket No. KENT 96-52-D
Complainant : BARB CD 95-21
v. :
: Mine No. 68
LEECO, INCORPORATED, :
Respondent :

DECISION

On November 13, 1995, the Secretary of Labor (Secretary)
filed an application for an order requiring Respondent (Leeco,
Inc.) to reinstate temporarily Complainant (Frank Scott) to
the position he held immediately prior to June 12, 1995,
or to a similar position at the same rate of pay and with the
same or equivalent duties. The application was supported by
the affidavit of Ronnie Brock, Supervisory Special Investigator
of the Mine Safety and Health Administration (MSHA), and by a
copy of the complaint of discrimination filed by the Secretary
on behalf of Scott.

On November 17, 1995, counsel for Leeco requested a hearing
on the application. On November 20, 1995, Tony Oppegard entered
his appearance as counsel for Scott.

Pursuant to a telephone conversation between the parties,
it was agreed that the matter would be heard on November 28,
1995, in Hazard, Kentucky.

Prior to the presentation of testimony, I summarized the
pleadings and reminded counsels that the issue to be decided
was narrow -- namely, whether Scott's complaint of discrimination
was "not frivolously brought," as that term is used in section
105(c)(2) of the Federal Mine Safety and Health Act of 1977
(Mine Act) (30 U.S.C. � 815(c)(2)). In other words, if the
complaint is clearly without merit, fraudulent or pretextual,
it is frivolous and the Secretary's application for
temporary reinstatement must be denied.

THE TESTIMONY

THE SECRETARY'S WITNESS

FRANK SCOTT

The Secretary presented his case through the testimony of
Scott, who stated that he is a miner of 13 years experience,
with five years of experience as an electrician. Leeco's No. 68
Mine is an underground coal mine consisting of two sections.
Scott testified that he began work at the mine on March 27, 1995.
According to Scott, he was forced to quit working for Leeco on
June 12, 1995. The last day he actually worked for the company
was June 10.

On that date, he was scheduled to work his usual shift --
the afternoon shift (3:00 p.m. - 11:30 p.m.). He arrived at
the mine around 2:30 p.m. The mine was not in production
because the belt was being moved. Scott stated that he
was advised by David Smith, the maintenance foreman and a
supervisor of Scott, that one of his jobs that day would
be to install a "Y box." (Scott explained that a "Y box"
is similar to an electrical junction box and that its
purpose is to direct the current that enters the mine to
the two separate sections.) Scott proceeded underground
and went to the "Y box." The power was off while he
worked on the box. After power was restored, Scott was
asked to check the equipment on one of the sections to
make certain it was running correctly. Scott looked at
his watch. It was approximately 4:00 p.m. The main mine
fan was on. Scott determined that the equipment was
functioning properly and he went to the belt head where
he tried to advise Smith by telephone that the equipment
was operating properly. It was now about 4:30 p.m. He
could not reach Smith, so he walked to where the section
foremen Rob Collett, who was working, to tell him he
could not contact Smith. Scott claimed that three or
four minutes later Smith yelled at him over the speaker
telephone and stated that all of the power had gone off
at the mine and that it should be on in 15 minutes.

Smith then directed Scott to work on repairing a hydraulic
drill that was inoperable. Scott testified that he worked on
the drill for approximately five minutes and could not get it
to operate properly. Scott spoke with Smith again on the
telephone and Smith told him to work on repairing the
continuous mining machine, which had broken down the previous
day. In order to fix it, Scott needed to weld a part on it.
Scott claimed that Smith was anxious to have the machine
repaired because production was supposed to be resumed at 12:01
a.m. on June 11.

The machine was at the face so scoop operator Tinsley Hubbard
transported Scott there. Hubbard remained with Scott. The repair
work required that Scott weld part of the continuous mining machine.
While working on the machine, Scott was asked by Hubbard if he
thought they would have to work all night with the mine fan off.
Scott stated he could tell that the main mine fan was not working
because the smoke from the welding stayed in the air, and he
could not feel any air current. Scott believed it took him
approximately one hour to complete the necessary welding.
Hubbard was with him during this time.

Scott and Hubbard then traveled to the belt head where Collett
and Tim Kilburn were working. He asked them how much longer he
and Hubbard would have to stay underground when the fan was off.
(Scott claimed he did not know the Secretary's regulations
prohibit miners from remaining underground for more than 15 minutes
when the fan has stopped (30 C.F.R. � 75.313(c)(1)).) According
to Scott, Collett and Kilburn just looked at him, hung their heads,
and said nothing.

Scott was then told by Kilburn to move the belt head cable.
Scott and Hubbard moved the cable and Scott stated that Hubbard
again asked him how long they would have to work with the fan off.
Scott knew the fan was still off because he got hot moving the
cable, something that never had happened before.

It was around 7:00 p.m. and Scott and Hubbard went to the
overcast to eat dinner. Scott could not hear the air whizzing
through the overcast, an indication that the fan still was not
functioning. Other miners were eating at the overcast (James Scalf
and Randal Young). They asked if they would have to work all night
with the fan off and Scott said he did not know.

After dinner Scott continued to move cable. He finished the
task around 8:30 p.m. Scott stated that at this point Kilbur
left the mine to get more J hooks to hang cable. Five or ten minutes
later Scott heard the "Y box" begin to hum and air being whizzed
through the overcast The power and the fan were back on. Kilburn
returned and Scott asked him how the power had been restored.
Kilburn stated that he did it.

Around 9:25 p.m., Scott heard Smith and Kilburn speaking to
each other over the pager telephone. Scott could decipher what
they were saying. A short time later Kilburn told Scott that Smith
wanted him to stay into the next shift to build a spillboard and
install a guard on the belt head. Scott testified that he
stayed until around 11:00 p.m. but could not get the spillboard
built because a scoop that was necessary to bring supplies was
not operable. Its battery was low. Scott got a battery charger
and hooked it up to the scoop. He did not believe he could
do any more work that night so he left the mine around 1:00 a.m.

The next day, June 11, was a Sunday. Scott discussed with his
wife the fact that he had stayed underground with the fan off.
Scott testified that he knew he was not supposed to work for an
extended period when the fan was not operating. However, he
did not leave the mine before 1:00 a.m., because he feared he
would be fired.

He also stated he discussed with his wife two other work
practices he believed were hazardous that he had been required
to do three or four times previously -- one was the practice
of hanging high voltage power lines (i.e., lines carrying 12,470
volts) while the power was on and the other was the practice of
working on belt equipment guards while the belt was operating.
(Scott did not know the specific dates when he was asked
previously to hang energized high voltage cable, but it was
during the months of April, May and June. In addition, he
did not know the specific dates when he was asked to work
on guards while the belts were running.) Scott stated that
after talking with his wife, he resolved not to perform any
more unsafe work.

On June 12, Scott returned to the mine around 3:00 p.m. In
the changing room he encountered Smith who asked Scott to come
and speak with him in a back room. Scott changed his clothes
and met with Smith. Scott testified that Smith wanted to know
why the spillboards had not been installed on June 10. Scott
explained that the scoop was "down." Smith handed Scott a
written work order for June 12 (Gov. Exh. 1 ). It listed four
jobs, included cutting part of a guard off of a belt tail piece.

Scott maintained that Scott orally instructed him to hang a
high voltage line. Scott replied that he did not want to hang
high voltage cable while the power was on and did not want to
work on guards while the belts were running. In addition, he
asked Smith about working underground on June 10, while the power
was off.

According to Scott, Smith responded if he would not do the
work, he should leave and not come back. Scott told Smith if that
were the case, he quit. Scott maintained that as he was leaving
the meeting with Smith he encountered Kilburn. He gave Kilburn
the written work order and he told Kilburn he had quit working
for Leeco because he had to work underground on June 10 for four
hours while the fan was off and because he was asked to work on
the tailpiece guard while the belt was running. He stated that
at no point did he ask Smith to lay him off.

Scott testified that before June 12, he had no discussions
with Smith regarding his general job performance and that he
never was disciplined previously by Leeco.

LEECO'S WITNESSES

DAVID SMITH

Smith has been a maintenance foreman for Leeco for the last
three years. He hired Scott. Scott's duties were to keep the
equipment running at the mine. Smith testified that on June 10,
the work that needed to be done at the mine was to set up the
belt head drive and tailpiece in a neutral entry. On June 10,
no specific work assignments were given to Scott. Usually, Smith
orally advised Scott about what he was to do before Scott went
underground. Smith recalled that Scott was supposed to try to
fix the hydraulic drill and that he had spoken with Scott about
this over the mine telephone. Also Scott was supposed to make
sure the equipment was running properly.

Smith testified that he left the mine around 4:30 p.m. He
went home and took his wife out to dinner. On his way back, he
stopped at the mine around 9:30 p.m. or 10:00 p.m., to ask if
the hydraulic drill had been fixed. Kilburn told him that it
had been. There was no indication that the power had failed,
and no one told Smith it had happened. He then left the mine.

Smith did not speak with Scott until June 12, when he asked
Scott to see him after their encounter in the changing room. At
the meeting, Smith testified that he asked Scott why he had not
fixed the drill and why he had to be told to do things like fix
the drill. He told Scott he should take more initiative and show
a greater interest in his work. He then gave Scott the written
work assignments for the day (Gov. Exh. 1).

According to Smith, Scott did not question him about any of
the assignments, including the work on the belt guard. Rather,
Scott's response was to ask to be laid off. When Smith told Scott
he could not lay him off, Scott raised the subject of the fan
being off. Smith testified that Scott stated something to the
effect that he could get unemployment compensation because the
fan had been off. (Smith maintained that this was the first he
learned of the power failure.) Aside from the fan, Scott mentioned
no other complaints to Smith. Nor did Scott complain to anyone
else.

Smith knew of no instances when Scott was instructed to hang
high voltage cable while it was energized, nor of any instances
when he was instructed to work on guards while belts were running.

According to Smith, about ten times prior to June 12 he had
spoken previously with Scott about his job performance and about
the need to do better work. He ept records of some of these
conversations in his notebooks. He agreed that Scott never had
been given a written warning concerning his job performance and
never had been given time off as a disciplinary measure.

TIM KILBURN

Kilburn works as a second shift repairman at the mine. On
June 10, the section shift miners were himself, Collett, Scalf,
Young, Hubbard and Scott. Their primary job was to extend the belt
line and set up the head drive using a battery powered scoop and
the hydraulic drill. They also were working on the "Y box" and
the power was off while this work was going on.

Kilburn went underground around 4:00 p.m. Kilburn understood
Scott's duties were that of working on the belt line and repairing
a continuous mining machine. Kilburn agreed with Scott that he had
left the mine during the evening of June 10, but he maintained
that he left to get materials for the spillboard Scott was supposed
to install, not to restart the fan. According to Kilburn, the fan
could restart itself once power was restored.

Kilburn denied telling Scott he had restarted the fan.
Kilburn also denied that he ever spoke with Scott on June 10 about
the fan being off.

Kilburn stated that Scott never complained to him about any
of the working conditions at the mine. Kilburn knew of no instance
in which Scott was asked to hang energized high voltage cable. In
any event, cable usually was hung on the third shift, not on the
second. In addition, he knew of only one instance prior to June 12,
in which Scott had worked installing belt guarding at the head
drive. Kilburn worked with him and the power was not on while
the work was being done. In Kilburn's view, Scott did not like to
work overtime and on June 10, he told Kilburn he would quite if
he had to work overtime that night.

The only thing Kilburn heard Scott ask Smith on June 12, was
whether Smith could get Scott unemployment compensation, or words
to that effect. Following the conversation, Scott handed his
written work order to Kilburn. Item No. 4 of the order, that
required part of the guard to be cut away, was completed by
another miner after Scott quit, but only once the belt had
been moved up and power had been cut off. Those were the same
circumstances in which Scott would have been expected to complete
the task.

Before Scott left the mine on June 12, he again saw Kilburn.
He told Kilburn that he had quit his job. He did not mention
anything about why he quit. Rather, he told Kilburn that
Smith had "[obscenity] with the wrong person. "

THE DISCRIMINATION COMPLAINT AND THE "NOT FRIVOLOUSLY
BROUGHT" STANDARD

The essence of Scott's complaint, as put forward by the
Secretary on Scott's behalf, is that prior to June 10, 1995,
he was asked to and did perform work at the mine that was
hazardous. Specifically, this work was the hanging of energized
high voltage power cables and working on mechanical equipment
guards while belts were running. On June 10, he worked
underground with the fan off for an extended period. On June 12,
he was ordered by Smith to perform a task he believed to be
hazardous, that he raised his fears to Smith. When his fears
were not addressed he was forced to quit.

The standard for eview requires that the Secretary's legal
theory, as well as the Secretary's factual assertions, be not
frivolous (see Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d
738, 747 (11th Cir. 1990). It is under established precedent
that a miner has a right to complain about unsafe work conditions
and practices and a right to refuse to work if the operator does
not respond to a reasonable complaint (Gilbert v. FMSHRC, 866 F2d.
1433, 1444 (D.C. Cir. 1989; see Secretary on behalf of Cooley v.
Ottawa Silica Co., 6 FMSHRC 516, 519-21 (March 1984), aff'd,780
F.2d 1022 6th Cir. 1985); Price v. Monterey Coal Co., 12 FMSHRC
1505, 1514 (August 1990 (citations omitted).)

A constructive discharge is proven when a miner who engaged
in a protected activity can show that an operator created or
maintained conditions so intolerable that a reasonable miner would
have felt compelled to resign (See, e.g., Simpson v. FMSRHC, 842
F.2d 453, 461-63 (D.C.Cir. 1988).)

Although the merits of the legal theory of constructive
discharge may or may not be sustained at trial, it is
certainly an arguable legal position, given the fact that the
parties really do not dispute that the fan at the mine was
off for a period of time on June 10, and given the fact that
a miner who felt he or she had been made to work too long under
those conditions reasonably might have complained about it.
Moreover, if, in fact, the Secretary could establish that
Scott did complain about hanging energized high voltage cable
and working on the mechanical equipment guards while belts
were operating, the complaints could also have been reasonable
under the circumstances and have required a reasonable response
on Leeco's part. Moreover, the failure to respond in any
way could well have compelled Scott's resignation. Given
these possibilities, I cannot find that the Secretary's
legal theory is not without merit.

Further, while there is stark disagreement about whether
Scott ever was required to engage in hazardous work practices
involving high voltage cables and guarding and, if so, whether
he ever lodged complaintsa bout them, the resolution of the
disagreements require credibility determinations and factual
findings appropriately made after a full trial of the issues,
with testimony from all of those involved. Moreover, and as
I have noted, it is agreed that there is at least some
factual basis for Scott's assertions regarding the fan in that
it did cease to function on June 10, while Scott was
underground. Smith and Scott also agreed to the extent that
at some point during their conversation of June 12, Scott
raised the matter of the fan with Smith. Leeco argues that
Scott's motivation was whole pretextual. A determination
regarding that contention also involves credibility
determinations and, perhaps, other factual evidence and
therefore warrants a trial of the issue.

For these reasons, I conclude that while there is
conflicting testimony on almost all of the fundamental issues,
it cannot be found that the theory behind Scott's
discrimination complaint and the factual assertions
associated with it are clearly fraudulent, clearly
without merit or clearly pretextual. Accordingly I
conclude that Scott's complaint is "not frivolously
brought" and that Scott is entitled to temporary
reinstatement.

ORDER

Leeco is ORDERED to reinstate Frank Scott to the position
he held on June 12, or to a similar position at the same rate of
pay and with the same or equivalent duties assigned to him.

David F. Barbour
Administrative Law Judge

Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Dept. of Labor, 2002 Richard Jones Road, Suite
B-201, Nashville, TN 37215-2862

Patrick Graham, Vice President, Safety and Health, 100 Coal Drive,
London, KY 40741

Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508

Leona A. Power, Esq., Reece & Lang, P.S.C., London Bank & Trust
Building, 400 South Main Street, P.O. Drawer 5087, London, KY
40745-5087

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