Consolidation Coal Company

Plain-English summary

Consolidation Coal transferred Richard Glover and Leon Kehrer from scooter-barn mechanic jobs because of their duties as miners’ representatives who accompanied inspectors. The judge found that the company’s policy effectively barred miners’ representatives from holding the scooter-barn mechanic position and discouraged mechanics from becoming representatives. The policy was found facially discriminatory under section 105(c), and the transfers were also discriminatory under the ordinary protected-activity analysis. The judge ordered reinstatement, a notice posting, and a $10,000 civil penalty.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 820(i); 30 C.F.R. § 40.1(b)
• Outcome: Discrimination was found, reinstatement and notice posting were ordered, and a $10,000 civil penalty was assessed. The matter was later reviewed by the Commission.
• Key point: A policy that removes miners’ representatives from desirable jobs because of their representative duties can be facially discriminatory.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF A D M INISTRA TIV E LA W JUDGES
                          2 SK YLINE, 10 th FLOOR
                           5203 LEESBURG PIK E
                     FA LLS CHURCH, V IRGINIA 22041



                          June 15, 1995

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-78-D
ON BEHALF OF : VINC CD 94-10
RICHARD E. GLOVER AND :
LEON KEHRER, :
Complainants : Rend Lake Mine 11-00601
v. :
:
CONSOLIDATION COAL COMPANY, :
Respondent :

                              DECISION

Appearances: Lisa A. Gray, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for the
Elizabeth Chamberlin, Esq., Pittsburgh,

Before: Judge Melick

 This case is before me upon the complaint by the Secretary

of Labor on behalf of Richard E. Glover and Leon Kehrer pursuant
to Section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. ' 801, et seq., the "Act". The Secretary alleges
that the Consolidation Coal Company (Consol) transferred these
complainants in violation of Section 105(c)(1) of the Act1

 1
   Section 105(c)(1) of the Act provides as follows:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed
or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the
representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101 or because such miner, representative of miners or applicant
for
Footnote 1 continued

Page 2

because of their activities as miners' representatives. In
particular, it is alleged that the Complainants were removed from
their jobs as "scooter barn" mechanics on June 21, 1994, because
their "walkaround" duties performed under Section 103(f) of the
Act purportedly interfered with the efficiency of the scooter
barn area.2 Indeed it is undisputed that Consol removed the
Complainants from their jobs as scooter barn mechanics because of
their activities as miners' representatives in order to make the
scooter barn area more efficient.

 A preliminary issue is whether the Complainants were in fact

"representatives of miners" within the meaning of the Act during
relevant times and, in particular on June 21, 1994, when they
were transferred. Pursuant to the directive in Section 103(f) of
the Act the Secretary in his regulations at 30 C.F.R. ' 40.1(b)
has defined representative of miners as "any person or
organization which represents two or more miners at a coal or
other mine for the purposes of the Act." Moreover, in Utah Power
and Light Company v. Secretary, 897 F.2d 447, 455 (10th Cir.
1990) the circuit Court confirmed that any person or organization
representing two or more miners is a miners' representative under
Section 40.1(b).

 In this case the Complainants both testified that prior to

June 21, 1994, they were appointed as "safety committeemen" by an
official of the local union in order to perform walkaround
functions under the Act. Moreover, in each case, that
appointment was confirmed by vote of the local union composed of
miners at the Rend Lake Mine. It may reasonably be inferred from
this undisputed evidence, therefore, that both Glover and Kehrer

employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this Act.
2
Section 103(f) provides that "[s]ubject to regulations
issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or
other mine made pursuant to the provisions of subsection (a), for
the purpose of aiding such inspection and to participate in pre-
or post-inspection conferences held at the mine."

                            2

Page 3

were, as of June 21, 1994, appropriately representing two or more
miners at the Rend Lake Mine and were accordingly representatives
of miners within the meaning of Section 103(f) of the Act.
Factual Background

 Both Glover and Kehrer had worked as "scooter barn"

mechanics at the Rend Lake Mine for many years prior to June 21,
1994. Glover had worked at the mine for 25 years and for 17 of
those years had been a "scooter barn" mechanic. Kehrer had
worked at the mine for 21 years. The scooter barn is located
underground and on June 21, 1994, was situated about 150 feet
from the bottom of the "B" shaft. It is a shop area 18 feet by
70 feet in size with rock walls, a beamed ceiling and a cement
floor containing equipment including welders, drill presses, and
grinders. One mechanic on each of the three shifts works out of
the scooter barn and is ordinarily supervised only at the
beginning of the shift. Glover worked primarily on rubber-tired
equipment and occasionally worked outside the scooter barn on
heavier equipment. Glover was then also a representative of
miners serving as a "walkaround" with mine inspectors about two
thirds of his work time. He later estimated that he and Kehrer
(on the "C" shift) each spent four days out of five working as
walkarounds.

 According to Glover, at the end of his shift on Friday,

June 21, 1994, he was told by his boss, Vernell Burton, that he
would be taken out of the scooter barn because of his work as a
walkaround. Burton also told him there was a possibility that if
he would quit his walkaround activities he could stay at the
scooter barn. When Glover returned to work on Monday, June 24,
he was transferred to work as a mechanic on the 1-G Section. He
again asked Burton if he would be permitted to stay at the
scooter barn if he gave up his walkaround duties but Burton did
not respond. At the end of his shift Glover and Complainant Leon
Kehrer went to the mine superintendent's office. According to
Glover, Superintendent Wetzel explained that the job transfer was
made to increase productivity at the scooter barn. At this
meeting, maintenance supervisor Wamsley offered the Complainants
the option to quit their walkaround duties and remain in the
scooter barn but Wetzel overruled him, stating that it was not an
option. Glover acknowledged that Wetzel told him that he was
doing a good job as a walkaround but they needed somebody full
time in the scooter barn.

 According to Glover, working on the section as an

underground mechanic is significantly less desirable than working
in the scooter barn and conditions on the section were more

                            3

Page 4

hazardous. Because of this Glover subsequently bid on a motorman
job taking a $1.00-an-hour pay cut.

 Billy Ray Sanders, a former inspector for the Illinois

Department of Mines and Minerals, was performing an inspection at
the Rend Lake Mine on June 21, 1994. He happened to be outside
the office of Maintenance Supervisor John Moore when he overheard
Moore tell Kehrer that they had a meeting and decided to remove
him from his job in the scooter barn because of his work as a
"walkaround" for Federal and State Inspectors. Sanders heard
Moore tell Kehrer that if he wanted to give up his walkaround
duties he could remain as a scooter barn mechanic but otherwise
he would be transferred to the section. Kehrer asked for
Sanders' assistance to prevent his transfer but, upon checking
with his legal department, Sanders found he could not help.

 Kehrer heard about his possible transfer from the scooter

barn because of his duties as a "walkaround" from one of his
bosses, Randy Price. Assistant Maintenance Superintendent
John Moore also told Kehrer that he was to be transferred from
the scooter barn because of his walkaround activities.
Scott Wamsley confirmed to Kehrer that he either had to quit his
walkaround duties or lose his job as a scooter barn mechanic.
Kehrer then met with Wetzel who repeatedly stated that "my
official statement [reason] is to make the scooter barn more
productive."

 Kehrer testified that he was then transferred to the 3-F

Section and initially had no supervisor, no tools and no work
assignments. According to Kehrer the section mechanics perform
more difficult and heavier work and are subject to more dangerous
conditions than scooter barn mechanics. They work with A.C.
power, and are exposed to dust, methane and potentially dangerous
roof and rib conditions.

 Kehrer also noted that the scooter barn mechanic on the

B-shift was not a representative of miners and was not
transferred to the sections unlike he and Glover. Kehrer
conceded that there was, indeed, a transportation problem at the
mine because the bad road conditions in the mine damaged
equipment. He also noted that there were not enough mantrips in
the mine in any event.

 On behalf of Consol, Lead Maintenance Foreman Vernell Barton

testified that during June 1994, he was in charge of the service
and maintenance of the transportation equipment. He had a good
working relationship with both Complainants and was not involved
in the transfer decision. Barton had been told that Glover was
transferred because the time he was missing on day shift left

                            4

Page 5

them short handed. They had to use a fill-in mechanic in the
scooter barn in Glover's absence and initially the replacements
were not as skilled. He was told several months before
June 1994, that they needed to have someone at the scooter barn
at all times because of the aging of the equipment and the
increasing use of diesel equipment required increased
maintenance.

 John Robert Moore testified that he was an assistant to the

master mechanic in June 1994, in charge of the transportation
equipment. He too reported to Scott Wamsley. Moore was also
involved in the decision to transfer the Complainants. He
recalled a staff meeting on June 11 to discuss various problems
at the mine including inadequate transportation of the hourly
employees to their work stations. Nine of the people attending
the meeting raised this issue and the apparently related problem
of not always having a mechanic available in the scooter barn.
They wanted a mechanic to be available at the scooter barn 24
hours a day. Moore testified that he was told by Wamsley that it
would be necessary to move the Complainants out of the scooter
barn to have somebody available all the time. According to Moore
they also needed someone trained to work on their new diesel
equipment available all the time.

 Moore testified that in June 1994, although there were nine

or ten mechanics working on each of the three shifts and that any
one of these could have worked on the section as mechanics, only
one or two per shift were capable of working in the scooter barn
as substitutes. Moore acknowledged, however, that the
transportation problems they had in June 1994, were the same
problems they had since 1989. Moore maintains that they did not
have the people to train to fill in. Moore acknowledged that he
told Kehrer that if he would give up his walkaround duties he
could stay in the scooter barn.

 Mine Superintendent Joseph Wetzel testified that he

scheduled the management meeting on June 11, 1994, to "define
roles and solve problems". According to Wetzel the subsequent
transfer of the Complainants was not as punishment but was the
result of transportation problems. Wetzel testified that someone
suggested offering the Complainants a choice to resign as
representatives of miners but he wanted them to continue in that
capacity and therefore did not give them a choice. Wetzel also
testified that since their transfer the maintenance staff had
been increased but not sufficiently to allow for fill-ins at the
scooter barn.

 When the above essentially undisputed facts are distilled,

what emerges is in essence a policy by Consol that effectively

                            5

Page 6

bars miners' representatives at the Rend Lake Mine from holding
the position of scooter barn mechanic. It may also reasonably be
inferred from the evidence that under this policy no one serving
as a miners' representative could even be considered for the
scooter barn job because of his activities as a miners'
representative. Conversely, under the Consol policy no person
presently holding the position of scooter barn mechanic could
accept the duties as a miners' representative without fear of
losing his scooter barn job and being transferred to less
desirable and more hazardous work.

Analysis

 Ordinarily it is essential in proving a case of

discrimination under section 105(c)(1) of the Act that there be a
determination of unlawful motive. The Act prohibits retaliatory
conduct or discrimination that is motivated by a miner's
exercising any protected right. Nevertheless, situations have
arisen in which proof that adverse action was improperly
motivated has not been required. The Supreme Court has permitted
a showing of facial discrimination under section 8(a)(3) of the
National Labor Relations Act ("NLRA"), 29 U.S.C. ' 158(s)(3):
"Some conduct . . . is so 'inherently destructive of employee
interests' that it may be deemed proscribed without need for
proof of an underlying improper motive." NLRB v. Great Dane
Trailers, 388 U.S. 26, 33 (1967)(citations omitted). Moreover,
the Commission held in UMWA and Carney v. Consolidation Coal Co.,
1 FMSHRC 338, 341 (1979), that an operator's business policy was
facially discriminatory. There, the Commission found that, under
section 110(b) of the Coal Act (30 U.S.C. ' 820(b)(1976) (amended
1977), the predecessor to section 105(c), a company policy
requiring union safety committeemen to obtain permission from
management before leaving work to perform safety duties was
unlawful because it impeded a miner's ability to inform the
Secretary of alleged safety violations. See also Simpson v.
FMSHRC, 842 F.2d 453, 462-63 (D.C. Cir. 1988)(when mine
conditions intolerable, operator motive need not be proven to
establish constructive discharge). Cf. Secretary on behalf of
Price and Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521,
1532-33 (1990)(held that operator's policy was not facially
discriminatory.)

 In Swift et al. v. Consolidation Coal Company, 16 FMSHRC

201, 206 (1994), the Commission held that in order to establish
that a business policy is discriminatory on its face, a

                            6

Page 7

complainant must show that the explicit terms of the policy,
apart from motivation or any particular application, plainly
interferes with rights under the Act or discriminates against a
protected class. The Commission further noted that once a policy
is found to be discriminatory on its face, an operator may not
raise as a defense the lack of discriminatory motivation or valid
business purpose in instituting the policy.

 When reviewing a claim of facial discrimination, the

Commission has also stated:

 "The Commission does not sit as a super grievance board to judge the

appropriate to analysis under section 105(c) of the Mine Act."
Our limited purpose is to
focus simply on whether the [program] or enforcement of some
component thereof conflicts with rights protected by the Mine Act.

Price and Vacha 12 FMSHRC at 1532 (citation omitted).

 Within this framework of law it is clear that Consol's

policy herein is, indeed, facially discriminatory. By
effectively barring miners' representatives from holding the
desirable job of scooter barn mechanic, by discouraging persons
who might wish to work as scooter barn mechanics from becoming
miners' representatives and by removing persons from such a
position upon the assumption of activities as a miners'
representative, Consol's policy unlawfully discriminates against
the protected class of miners' representatives and those who
would otherwise be willing to serve in that capacity. It is
significant to note that this policy also effectively restricts
miners' rights to select whom they wish to have represent them
under Section 103(f) of the Act. See Kerr-McGee Coal Corp. v.
FMSHRC, 40 F.3d 1257 (D.C. Cir. 1994), petition for cert. filed,
63 U.S.L.W. 3805 (U.S. Apr. 14, 1995) (No. 94-1685). Under the
circumstances Consol's policy which led to the transfer of the
complainants herein is facially discriminatory and in violation
of the Act.

 The policy at issue and the specific action by Consol in

transferring the Complainants in this case for their activities
as miners' representatives is also discriminatory under the
customary analysis applied to discrimination cases. The
Commission has long held that a miner seeking to establish a
prima facie case of discrimination under section 105(c) of the
Act bears the burden of persuasion that he engaged in protected
activity and that the adverse action complained of was motivated
in any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The

                            7

Page 8

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 any protected activity. If an operator cannot
rebut the prima facie case in this manner, it may nevertheless
defend affirmatively by proving that it would have taken the
adverse action in any event on the basis of the miner's
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).

 There is no dispute in this case that both Complainants, as

miners' representatives, were members of a protected class and
had engaged in protected activity prior to their transfer. It is
also clear that the adverse action complained of (the transfer of
the Complainants from their job as scooter barn mechanics to
section mechanics) was motivated solely by their protected
activity as miners' representatives (because of their time-
consuming work in that capacity). Since this case does not
therefore involve a "mixed-motive", discrimination under the Act
is established and no further analysis under Pasula is necessary.

 Consol cannot under the circumstances prevail with an

affirmative defense that it based its transfer of Glover and
Kehrer on unprotected activity alone since it admits that their
transfer was based upon their activities as miners'
representatives. Indeed, it cannot be disputed that the adverse
action was solely motivated by the fact that the Complainants
were performing their duties as representatives of miners. They
were admittedly transferred because their walkaround duties
detracted from the time devoted to their duties as scooter barn
mechanics. The Secretary has in this manner, therefore, also
proven discrimination under the Pasula analysis.

 Even assuming, arguendo, that this case involves a "mixed

motive" in the sense that Consol was also motivated in
transferring Glover and Kehrer by business related concerns that
their activities as miners' representatives was affecting mine
productivity and efficiency, those concerns cannot prevail over
the express Congressional intent to construe Section 105(c)
"expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the [Act]."
S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35 & 36 (1977)

                            8

Page 9

["S. Rep."], reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 623 & 624
(1978) ["Leg. Hist."].

 That Senate Committee also stated in that report as follows:

 "If our national mine safety and health program is to be    truly effe

encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which
they might suffer as a result of their participation".

 Moreover, in creating a protected class of miners'

representatives under Section 103(f) of the Act, Congress
expressly recognized that there would be related economic costs
to the industry. Thus, while it may be true that Consol could
operate more productively and efficiently by prohibiting miners'
representatives from holding certain jobs, Congress has clearly
determined that such business reasons cannot be used to justify
discrimination against them as Consol suggests herein.

 Considering the serious impact Consol's actions herein would

have on the willingness of persons to serve as miners'
representatives and the intentional and obvious discriminatory
nature of its actions in conjunction with other criteria under
Section 110(i) of the Act, I find that a civil penalty of $10,000
is appropriate.

                          ORDER

 In accordance with the damages requested by the Secretary,

Consolidation Coal Company is hereby directed to (1) immediately
restore the Complainants to their positions as scooter barn
mechanics at the appropriate rate of pay for the position, and
(2) post for a period of not less than 60 days a notice at Rend
Lake Mine in a prominent place frequented by miners, which states
its recognition of miners' statutory rights to file complaints of
discrimination and to participate as miners' representatives with
the Mine Safety and Health Administration; and its commitment to
honor these rights, and not to interfere in any manner with the
exercise of these rights. Consolidation Coal Company is further
directed to pay civil penalties of $10,000 for the violations in
this case.

                            9

Page 10

                       Gary Melick
                       Administrative Law Judge
                       (703) 756-6262

Distribution:

Lisa A. Gray, Esq., Office of the Solicitor, U.S. Dept. of Labor,
230 S. Dearborn Street, 8th Floor, Chicago, IL 60604 (Certified
Mail)

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15421 (Certified Mail)

/jf

                           10