National Gypsum

Plain-English summary

Michael J. Grafton alleged that National Gypsum discriminated against him after he raised concerns about mine fire evacuation procedures and received discipline related to equipment incidents. The Judge found that Grafton engaged in protected activity when he questioned the evacuation training, but the warning, suspension, and transfer decisions were not shown to have been motivated by that activity. The Judge also found that Grafton did not establish a prima facie discrimination case and dismissed the complaint.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Protected activity alone did not establish discrimination without evidence that the adverse actions were motivated by that activity.

Full text (FMSHRC public release)

CCASE:
MICHAEL J. GRAFTON V. NATIONAL GYPSUM
DDATE:
19900112
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

MICHAEL J. GRAFTON, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. LAKE 89-72-DM
v.
MD 89-34
NATIONAL GYPSUM,
RESPONDENT Shoals Mine

                          DECISION

Appearances: Ron G. Spann, Independent Workers of North America,
Paducah, Kentucky, for Complainant;
Dennis C. Merriam, Esq., Gold Bond Building
Products, a Division of National Gypsum, Charlotte,
North Carolina, for Respondent.

Before: Judge Weisberger

Statement of the Case

 In this action Complainant alleges that Respondent

discriminated against him in violation of section 105(c) of the
Federal Mine Safety and Health Act of 1977 (the Act). Pursuant to
notice, a hearing was held on this matter in Indianapolis,
Indiana, on October 11, 1989. Michael J. Grafton, Charles Dant,
Leon Joseph Brothers, Norman D. Mundy, and John Mathias testified
for Complainant. James Allan Houston and Mark Allen testified for
Respondent. Subsequent to the Hearing, time was reserved to allow
the Parties to file Post Hearing Briefs and Proposed Findings of
Fact. Complainant filed a Brief on November 21, 1989. Respondent
filed Proposed Findings of Facts, and a Memorandum of Law on
December 11, 1989.

Issues

 1. Whether the Complainant has established that he was

engaged in an activity protected by the Act.

 2. If so, whether the Complainant suffered adverse action as

the result of the protected activity.

  3. If so, to what relief is he entitled.

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Findings of Fact and Discussion

 Michael J. Grafton was employed by Respondent as a roof

bolter in December 1988. On December 18, 1988, Grafton's
supervisor, Rick Magstadt, asked him to operate a Number 4
Loader. Before Grafton used the loader he let it run 5 minutes,
and then checked the oil pressure and water temperature gauges
and both "checked out all right" (Tr. 26). He indicated that he
started to drive and use the loader, and at about 7:30 a.m. it
started to loose power. He got off and checked behind him and did
not see any steam and did not smell anything. He also indicated
that he checked the gauges, and ". . . they seemed to rest all
right" (sic) (Tr. 102). He informed Norman Mundy, another truck
driver, that he was going to take the loader to the maintenance
shop to have it checked out. When he was approximately 200 to 500
feet away from the shop, he looked over his shoulder and saw
flames "shooting out of the motor," and "shooting out the sides of
that loader on the motor" (Tr. 75). He indicated that he did
not attempt to put it out as he was afraid, and his main concern
was to alert other miners to the danger. He indicated that when
he saw the loader on fire, Walter Dages came by and he yelled
that the loader was on fire.

 Grafton then went to the shop and yelled to the mechainic,

Bryan Newland, that the loader was on fire, and Grafton turned on
the fire alarm. Magstadt then came by and talked with Dages at the
maintenance area. Grafton indicated that he asked Magstadt "don't
you think we should go North to the main air shaft to get us some
fresh air?" (Tr. 31). Magstadt then went to the air shaft along
with Grafton, but according to Grafton, he did not act like he
knew where the air shaft was.

 Grafton testified, in essence, that he told Magstadt that he

(Magstadt) did not know the safety procedures. In this
connection, Grafton testified that he had been told by his
co-workers that once an alarm has been sounded the procedures is
to shut off the machinery, and wait to be picked up by the
supervisor who is to take the workers to the air shaft. Grafton
indicated that, to the contrary, Magstadt stopped at the shop,
and stayed there for approximately 2 to 5 minutes, if not longer.

 Grafton indicated that the following day he met with Mine

Superintendent Mark Allen along with Charles Dant and Leon
Brothers. At that time Grafton questioned whether Magstadt was
properly trained in evacuation procedures, and Allen indicated
that he would try to train him in the proper procedures. On
December 20, 1988, Grafton was served with a warning notice
informing him of "defective work" which occurred on December 18,
1988. It was alleged that on December 18, 1988, he did not check
the appropriate gauges that would have indicated a high operating
temperature on the loader, and "continued to operate it while it
was running hot rather than shutting the machine down." (Joint
Exhibit 1). It was also alleged that he failed to check the

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loader before operating it. His conduct was termed "negligence,"
and it was indicated that further problems of this nature would
lead to disciplinary action.

 On February 7, 1989, Grafton was assigned to work on a roof

bolter along with Gary Jones, who had been working on the bolter
for only two days. Grafton was told by the foreman, Edgar Quinn,
to put up roof hooks, and was further told that the electrician
would tell him where to place the hooks. Ron McKibben, the
electrician, told Grafton where to place the hooks. Grafton
testified he then asked McKibben if he thought there was enough
cable, and McKibben answered "I believe you will have more than
enough" (Tr. 55). Grafton asked Jones to watch the cable while he
moved the bolter. When moving the bolter from the third to the
forth hooks, Grafton heard a bang and the lights went out.
Grafton saw that the electrical box had been pulled off the wall.
He indicated it had been attached with two bolts, and was not
anchored. He described the method of attachment as a temporary
attachment.

 On February 9, 1989, Grafton attended a meeting with Allen,

Magstadt, and Plant Manager James Allan Houston, along with
Brothers and Don Bowling. At that time, Grafton was given a 3 day
disciplinary suspension for the incident the day before, and was
reduced to plant trainee. He indicated that on the same day, two
other bolters, Mundy and Dant, had broken a cable while operating
a bolter, and were not disciplined. He also indicated that
Houston told him that he was disqualified for mine work due to
his "anticipatory refusal" to fight fires (Tr. 62).

 The case law that applies to the instant proceeding is well

established. The Commission, in Goff v. Youghiogheny & Ohio Coal
Company, 8 FMSHRC 1860 (December 1986), reiterated the legal
standards to be applied in a case where a miner has alleged acts
of discrimination. The Commission, Goff, supra, at 1863, stated as
follows:

      A complaining miner establishes a prima facie case
 of prohibited discrimination under the Mine Act by
 proving that he engaged in protected activity and that
 the adverse action complained of was motivated in any
 part by that activity. Pasula, 2 FMSHRC at 2797-2800;
 Secretary on behalf of Robinette v. United Castle Coal
 Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
 may rebut the prima facie case by showing either that
 no protected activity occurred or that the adverse
 action was not motivated in any part by protected
 activity. Robinette, 3 FMSHRC at 818 n. 20. See also
 Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-96
 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
 6th Cir. 1983) (specifically approving the Commission's
 Pasula-Robinette test).

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I.

 Based on the testimony of Grafton that has not been

contradicted, and has been corroborated by the testimony of Dant
and Norman Mundy, who were roof bolters on the same shift, I find
that after the alarm had been sounded, Magstadt did not have a
flashing light on the pickup truck that he was driving.1

 I also find, based on the uncontradicted testimony of

Grafton as corroborated by Mundy, that once the alarm had sounded
Magstadt did not go immediately to pick up the men on the
section, and take them to the source of fresh air. Both these
actions of Magstadt contravened the evacuation policy procedures
as understood by Grafton, Mundy, and Leon Joseph Brothers, a
loader operator, who worked 34 years for Respondent. I thus find
that when Grafton talked with Allen on December 19, 1988, to
voice his concern over the adequacy of training that Magstadt had
received in the area of fire evacuation, he (Grafton) was clearly
engaged in protected activities.

                         II.

 The warning notice given to Grafton on December 20, 1988,

accused him, inter alia, of negligence which resulted in the
loader catching fire. Grafton adduced testimony herein to contest
a finding of negligence on his part. However, Complainant did not
adduce sufficient evidence to predicate a finding that there was
any bad faith on the part of Respondent in concluding that
Grafton had been negligent. There is no evidence in the record
with regard to any of Respondent's actions or words which would
indicate that the warning notice issued to Grafton was motivated
as a consequence of his protected activities, i.e., complaining
to management about Magstadt's failure to properly evacuate
miners the day before. I thus conclude, that the warning notice
was issued based on management's evaluation of Grafton's conduct
with regard to the loader on December 18, and was not motivated
in any part by his protected activities.

                        III.

 On February 7, 1989, shortly before Grafton's loader had

pulled the electrical box from its connection, Dant was operating
a roof bolter along with Mundy when, in turning the bolter
around, its electrical cable stretched and broke. The cable was
attached to a permanent box that had an anchor. Dant reported
this incident to his supervisor, but neither Dant nor Mundy were
disciplined.

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In essence, Complainant relies on this incident to establish that
the 3 days suspension that he received for ". . . overextending
the bolter beyond the cable limit. . . " (Joint Exhibit 3), was
in violation of section 105(c) of the Act.

 Allen indicated that Dant and Mundy were not disciplined, as

he considered the damage that they caused to the cable to be an
error in judgment, whereas Grafton's action was termed
negligence. James Allan Houston, Respondent's plan manager, who
made the decision to suspend Grafton, indicated that when he
learned that the electrical box had been torn off the wall, he
asked the supervisor to tell him what took place, and he tried to
assess whether Grafton's conduct was negligence or an error in
judgment. He indicated that he also consulted with the Human
Relations Department. I find Houston's testimony credible. Thus,
I find that the decision to suspend Grafton was based upon a
business judgment, and Complainant has not established that it
was motivated in any part by his protected activities.

                    IV.

Grafton indicated that, on December 18, 1988, he said that
he would not fight a fire. He indicated that the reason for
making such a statement was that he was not properly trained in
that he had not received any training in fighting a fire, nor had
he received any training in the use of a fire extinguisher. He
also indicated that he did not know when he bid for an
underground job at the mine, that putting out a fire was one of
the conditions of employment. In this connection, Grafton
indicated that he did not see any film at the 1988 training with
regard to fighting a fire or using a fire extinguisher. Dant also
indicated that he was not sure whether such instruction was
given. However, I find based on the testimony of Allen, who I
find to be a credible witness, that in the 1988 training a film
was provided showing the use of a fire extinguisher. This also
was corroborated by Brothers upon cross-examination. As such, it
appears that Grafton was given some training in the use of a fire
extinguisher.

 On or about February 7, 1989, it was reported to Houston by

Allen and MSHA Inspector Donald Bartlett that Grafton had told
them that he would not fight any fires in the mine. Grafton does
not dispute this, but indicates that he may have told this to
Bartlett and Allen sometime in February 1989, prior to February
7, 1989. Houston indicated his response was to disqualify Grafton
from working underground in the mine. He was assigned a job above
ground as a Trainee Bracket 1 at $8.93 an hour. I find that the
only reason why Respondent removed Grafton from working
underground was his stated refusal to fight fires underground. As
such, I find that Complainant has not established that his
transfer from the mine was motivated in any part by any protected
activities.

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Based on all the above, it is concluded that the Complainant has
failed to establish a prima facie case, that he was discriminated
against in violation of section 105(c) of the Act.

                             ORDER

 It is hereby ORDERED that the Complaint herein shall be

DISMISSED.
Avram Weisberger
Administrative Law Judge

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FOOTNOTES START HERE.

 1. Mundy indicated that Magstadt did not turn it on until he

was 100 feet from the maintenance shop.