Buckeye Industrial Mining Company, Inc.

Plain-English summary

Richard W. Peters alleged that Buckeye Industrial Mining Company, Inc. reassigned him from truck driving to lower-paid laborer work after a job accident and his safety complaints about the truck's brakes. Judge Roy J. Maurer found that Peters engaged in protected activity by raising the brake concerns, but did not show that the reassignment was motivated by those complaints. The judge credited evidence that Peters was reassigned because of problems operating equipment and dismissed the discrimination complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and 30 U.S.C. § 815(c)(3).
• Outcome: The discrimination complaint was dismissed.
• Key point: Safety complaints alone did not establish discrimination where the evidence showed a legitimate, non-protected reason for the reassignment.

Full text (FMSHRC public release)

CCASE:
RICHARD PETERS V. BUCKEYE INDUSTRIAL
DDATE:
19870929
TTEXT:

Page 2

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

RICHARD W. PETERS, SR., DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. LAKE 87-37-D
v.
MORG CD 86-19
BUCKEYE INDUSTRIAL
MINING COMPANY, INC.,
RESPONDENT

                                  DECISION

Appearances: Richard W. Peters, East Palestine, Ohio,
pro se;
John Orr Beck, Esq., Lisbon, Ohio, for Respondent.

Before: Judge Maurer

 This case is before me upon the Complaint of Discrimination

filed by Richard W. Peters under Section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the
"Act," alleging that Buckeye Industrial Mining Company
discriminated against him in employment after he had an accident
on the job by returning him to work as a laborer at a reduced
wage from that of a truck driver, which he was prior to the
accident.

 The case was heard in Pittsburgh, Pennsylvania, on July 6,

1987. Both parties waived the filing of post-hearing briefs.

      The parties have stipulated that:
      

      1. Complainant has been an employee of the company since
         October 22, 1968.

      2. During his employment, he has been employed as a laborer,
         pitman, "2400" dragline operator, truck driver, and for short
         periods as a bulldozer and highlift operator.

      3. On July 14, 1986, complainant was involved in an accident
         on the job when the truck he was driving rolled over.

      4. Following that accident, complainant was off work until
         on or about July 21, 1986, and then was returned to work as a
         laborer and pitman at a reduced wage (70¢ per hour less) from that
         of a truck driver.

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5. Complainant worked as a laborer-pitman until October 1986. At
that time he allegedly hurt his back on the job and has been off
work from the date of that injury until at least the date of the
hearing (July 6, 1987).

 The essence of this pro se complaint is that the respondent

allegedly put the complainant in a lower-paying job on or about
July 21, 1986, in violation of Section 105(c)(1) of the Act 1
in retaliation for him having the accident a week earlier, and
for making repeated safety complaints about the brakes on the
truck he was assigned to drive. The complainant further alleges
that it was these faulty brakes that in fact caused the accident.

 The general principles governing analysis of discrimination

cases under the Act are well settled. In order to establish a
prima facie case of discrimination under Section 105(c) of the
Act, a complaining miner bears the burden of proof in
establishing that (1) he engaged in protected activity and (2)
the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir.1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April
1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra. See also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.1987);
Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59
(D.C.Cir.1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th
Cir.1983) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).

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There is no question that Mr. Peters engaged in protected
activity by repeatedly complaining to his foreman, Art Brown,
about what he believed to be faulty and dangerous brakes on the
truck he was assigned to drive. He made numerous complaints about
the state of the brakes on his assigned truck in the two or three
weeks prior to the accident. Each time his foreman would call
maintenance and one of the mechanics would come out and check
them. When the mechanic would get there, there was invariably
nothing the matter with the brakes. Foreman Brown and Peters both
further testified that the driver of the truck on the other
shift, one Gene Liber, never complained about the truck's brakes
and in fact denied having any problem when specifically asked
about the brakes by Brown or Peters. Nevertheless, reading the
record as a whole, I find that it is entirely possible that
Peters was experiencing an intermittent problem with the truck's
brakes, and, in fact, inadequate brakes may well have at least
contributed to the July 14 accident. Accordingly, Mr. Peters has
established the first element of a prima facie case of
discrimination, i.e., he has shown to my satisfaction that he did
indeed engage in protected activity.

 Foreman Brown testified that in every event, in response to

every complaint, even though he was beginning to wonder about
Peters' complaints, he called maintenance and had the brakes
checked out and they always checked okay. Peters concurs with
this testimony in substantial part. I also find Brown's testimony
credible to the effect that he never told Peters to operate the
truck without brakes or with bad brakes, but rather told Peters
that if the brakes were bad, "take it to the parking lot and park
it". I therefore find that Mr. Peters has failed to establish the
second element of a prima facie case, that is, he has not shown
that the adverse action by the operator was motivated in any part
by the protected activity.

 Even had Mr. Peters established a prima facie case herein, I

find that case rebutted by the operator's evidence of valid
non-protected business reasons for the removal of Mr. Peters as
an equipment operator. Mr. Robert J. Bacha testified that the
only piece of equipment Peters was ever able to satisfactorily
operate for the company was a "2400" dragline, and that
particular machine is no longer in use. Thereafter Peters was
tried out as a highlift operator, bulldozer operator and, lastly,
as an end dump operator (truck driver).

 He had problems with operating the end dump truck

independent of the July 14 accident as a result of which,
according to Bacha, the company removed him from the truck
driving job and re-assigned him as a laborer. After he had been
operating the end dump for several months there were numerous
complaints

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from both the other operators and foremen that he worked too
slow, and that he would not back all the way up so as to dump
over the hill. Rather, he would dump where the bulldozer had to
follow-up after him and push his load off. Mr. Peters himself
acknowledged on the record that "the trouble I had running some
of the other equipment" might also have been part of the reason
he was re-assigned.

 Specifically, I find the respondent's evidence credible to

the effect that Peters was removed from his job as a truck driver
and re-assigned as a laborer due to his general lack of
competence at running machinery. Therefore, the re-assignment of
Peters had a legitimate business-related and non-protected basis.
Under the circumstances, the Complaint herein must be dismissed.

                             ORDER

 The Complaint of Discrimination herein is dismissed.

                               Roy J. Maurer
                               Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

 1 Section 105(c)(1) of the Act provides in pertinent part as

follows: "No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner . . . in any coal or other mine subject to this
Act because such miner . . . has filed or made a complaint
under or related to this Act, including a complaint notifying the
operator or the operator's agent . . . of an alleged danger or
safety or health violation in a coal or other mine . . . or
because of the exercise by such miner . . . on behalf of
himself or others of any statutory right afforded by this Act."