Dennis Ayres v. Fairpoint Coal Company

Plain-English summary

Dennis Ayres alleged that Fairpoint Coal Company discharged him after he raised concerns about unsafe equipment. He testified about a highwall incident involving a dozer and a problem with its reverse gear, along with his dispute with mine management. The parties reached a settlement during the hearing under which Ayres would receive two weeks of pay, execute a release, and have his complaint dismissed. Judge George A. Koutras found that the parties completed the agreement, including payment of $556.35 after deductions, and dismissed the complaint with prejudice.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The parties' settlement was completed, and the discrimination complaint was dismissed with prejudice.
• Key point: A completed settlement that the judge finds reasonable, in the public interest, and consistent with the Mine Act can resolve a discrimination complaint.

Full text (FMSHRC public release)

CCASE:
DENNIS AYRES V. FAIRPOINT COAL
DDATE:
19861009
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

DENNIS AYRES, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. LAKE 86-65-D
v. MSHA Case No. VINC CD 86-2

FAIRPOINT COAL COMPANY, Fairpoint Strip Mine
RESPONDENT

                            DECISION

Appearances: Dennis Ayres, Lantana, Florida, pro se;
Rodney D. Hanson, Esq., Thomas, Fregiato, Myser
& Hanson, Bridgeport, Ohio, for Respondent.

Before: Judge Koutras

                     Statement of the Case

 This is a discrimination proceeding initiated by the

complainant Dennis Ayres against the respondent pursuant to
section 105(c) of the Federal Mine Safety and Health Act of 1977,
alleging that the respondent discriminated against him by
discharging him for exercising certain rights afforded him under
the Act. Mr. Ayres' initial complaint was investigated by MSHA,
and it declined to file a formal complaint with this Commission.
Mr. Ayres subsequently filed this action with the Commission pro
se.

 A hearing was held in Wheeling, West Virginia, on August 26,

1986, and the parties appeared and participated fully therein. At
the close of the complainant's case, the parties agreed to settle
this dispute, and they have filed sufficient information in this
regard to enable me to dispose of the matter.

                            Discussion

 Mr. Ayres testified that he worked for the respondent off

and on since May, 1978, and during intervening periods of lay-offs.
He was last employed as a dozer operator on October 14, 1985. Except
for two weeks between jobs, he has

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been steadily employed since leaving the respondent's employ in
various construction jobs in Florida. He testified as to the
circumstances surrounding his complaint, and he believed that he
was discriminated against by the respondent because he was
concerned about operating equipment which he believed to be unsafe.
He testified about certain events concerning a portion of a highwall
which fell on his dozer on October 14, 1985, and his dispute over
that incident. Mr. Ayres believed that the incident resulted from
the failure of the machine reverse gear to engage properly, and he
stated that he had reported this condition to mine management and
nothing was done about it (Tr. 8Ä12, 14Ä17).

 Mr. Ayres testified that on October 14, 1985, shortly after

the highwall incident, he went to the mine office and informed a
secretary that November 14, 1985, would be his last day of work.
He also told the secretary that if he were further "hassled,"
he would quit that same day, and even if he were not further
"hassled," he was giving notice that November 1, 1985, would be
his last day of work (Tr. 12). Later that day, he was confronted
by mine foreman Louis Zaccagnini, who purportedly told him "You
don't tell me when you're going to quit; I tell you when" (Tr.
13). Mr. Zaccagnini then gave him his paycheck and "it was all
over" (Tr. 13Ä14). Mr. Ayres confirmed that Mr. Zaccagnini did
not use the words "you're fired," and simply stated "you're done"
(Tr. 14).

 Mr. Ayres confirmed that while he was aware of the condition

of his machine for 3Äweeks prior to the highwall incident on
October 14, and was aware of his right not to operate unsafe
equipment, he nonetheless operated the machine and never refused
to operate it because he believed it was unsafe. He did so
because he was afraid he would be fired if he refused to operate
the machine (Tr. 17Ä18). He also confirmed that Mr. Zaccagnini
accused him of causing the highwall incident which resulted in
damage to the machine, but Mr. Ayres took the position that if
the reverse gear were operating properly, he could have backed
away from the highwall and avoided the falling material (Tr.
18Ä19).

 Mr. Ayres confirmed that prior to his purported discharge,

he filed no complaints with MSHA, but did report the condition of
his machine to mine management (Tr. 20). He conceded that
management dispatched a mechanic to look at the machine the same
day that he complained, and he believed that management's response
was appropriate (Tr. 21). He also conceded that Mr. Zaccagnini
did not tell him that he was fired because of his complaints about
the machine, or that if he did not operate the

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machine in the condition that it was in, that he would be fired
(Tr. 21). Mr. Ayres confirmed that after the mechanic looked at
the machine, he did not inform Mr. Zaccagnini that he was still
having a problem, and made no further complaints to anyone (Tr.
22).

 Mr. Ayres conceded that operator error may cause the type of

incident which occurred at the highwall in question. He also
conceded that he operated the machine for approximately an hour
and a half prior to the incident in question, did not believe
that he could get hurt, and that he could run the machine "the
best I could with the machine I had" (Tr. 27). He confirmed that
after the highwall fall, his supervisor Bill Simmons instructed
him to work with the mechanic to get it ready to operate, and no
one told him to operate it in an unsafe condition (Tr. 28). He
also confirmed that after thinking about it further, he became
angry and decided to inform management that he quit his job (Tr.
28). He conceded that had he not been terminated earlier by Mr.
Zaccagnini, November 1, 1985, would have been his last day of
work, and he would have quit that day (Tr. 30Ä31). He also
conceded that he did not inform the secretary of any reasons for
giving notice that he would quit (Tr. 31.).

 Mr. Ayres confirmed that he had in the past engaged in a

dispute with mine management over an incident concerning his
wearing of short pants on the job, but he denied cursing or
threatening a foreman. He also confirmed that he was sent home on
September 9, 1985, because of this dispute, but was not fired or
threatened with termination (Tr. 32Ä36). Mr. Ayres stated that
he got along well with mine management, was never disciplined,
and that he had a good attendance record (Tr. 39Ä40).

 At the close of his case, Mr. Ayres indicated to the court

that he would be receptive to a settlement of his dispute with
the respondent. The parties were afforded an opportunity to
explore this further, and they agreed that Mr. Ayres would be
paid for 2Äweeks pay from October 14, 1985 to November 1, 1985,
in the gross amount of $760, subject to the usual deductions, and
Mr. Ayres would execute a release and his complaint would be
dismissed (Tr. 42Ä43). Mr. Ayres stated that he was satisfied
with this settlement of his complaint (Tr. 44).

                          Conclusion

 The parties have now finalized their agreed-upon settlement

disposition of the complaint filed in this case. Mr. Ayres has
received a cashier's check from the respondent in the net

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amount of $556.35, after appropriate social security and income
tax deductions, and he has executed a release and agreement
dismissing his complaint with prejudice. Under the circumstances,
I am satisfied that the agreement is reasonable and in the public
interest and in accord with the intent and purposes of the Act. I
see no reason why this matter should not now be dismissed.

                            ORDER

 In view of the foregoing settlement disposition of this

matter, and having concluded that the parties have complied with
the terms of their agreement, this matter IS DISMISSED.

                    George A. Koutras
                    Administrative Law Judge