Consolidation Coal Company

Plain-English summary

Union safety committeemen Larry E. Swift, Mark Snyder, and Randy Cunningham challenged Consolidation Coal Company's Dilworth Mine Program for High Risk Employees. The program increased counseling, retraining, suspension, and discharge based on reported work-related injuries, including some injuries beyond those reportable to MSHA. Judge Gary Melick found that the program was facially discriminatory because it could deter miners from reporting injuries and exercising rights protected by the Mine Act. He ordered the company to stop disciplinary action under the program and expunge records of discipline taken under it.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(1) and 30 C.F.R. § 50.2(e).
• Outcome: The high-risk employee program was found facially discriminatory, and cease-and-desist and record-expungement relief was ordered.
• Key point: A mine safety program cannot use injury reporting as a basis for discipline in a way that interferes with miners' protected rights.

Full text (FMSHRC public release)

CCASE:
SWIFT, SNYDER & CUNNINGHAM V. CONSOLIDATION COAL
DDATE:
19920219
TTEXT:

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LARRY E. SWIFT, : DISCRIMINATION PROCEEDING
MARK SNYDER, AND :
RANDY CUNNINGHAM, : Docket No. PENN 91-1038-D
Complainants : MSHA Case No. PITT CD-90-09
v. :
: Dilworth Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                           DECISION

Appearances: William Manion, Esq., Legal Counsel, UMWA
Region 1, Washington, Pennsylvania, for the
Complainants;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before: Judge Melick

 This case is before me upon the Complaint by Union Safety

Committeemen Larry E. Swift, Mark Snyder, and Randy Cunningham,
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 violations of
section 105(c)(1) of the Act by the Consolidation Coal Company
(Consol) in its implementation of its Dilworth Mine "Program for
High Risk Employees." (Footnote 1)/

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 otherwise interfere with the exercise of the statutory rights
of any miner, representative of miners or applicant for
employment in any 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 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

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The Dilworth Mine apparently had during the 1980's the worst
safety record of Consol's mines in its Eastern Division
(Complainants Exhibit C-12, pp. 13-14). Because of an active and
determined union safety committee the mine has also been the
subject of many complaints under section 103(g) of the Act and a
resulting significant history of Federal citations for the
operator's failure to report injuries under 30 C.F.R. Part 50
(Complainant's Exhibits 2, 7 and 9).

 According to Dilworth Mine Superintendent, Lou Barletta,

because of the high incidence of reported injuries at the
Dilworth Mine he first implemented a program for purported high
risk employees in October 1988. The "Program for High Risk
Employees" implemented January 1, 1990, and here at issue
(Appendix A) retains the same provisions of the earlier program
for increasing discipline including suspension and discharge for
repeated reported injuries.

 In essence, the program at issue provides counselling,

retraining, and increasing discipline including suspension and
discharge of employees based upon "Reports of Personal Injuries"
filed in response to any work related incident resulting in
injury (Joint Exhibit No. 1-Appendix A). The program also
directs employees, as do the shop and conduct rules (Exhibit
R-2), to report to management any work related incident which
results in injury in a "Report of Personal Injury." These
reports may therefore include injuries in addition to those
reportable to the Federal Mine Safety and Health Administration
under 30 C.F.R. Part 50. (Footnote 2) In the discretion of
management some reported injuries may also be excluded from
consideration against an employee.

 The Complainants maintain that this "Program for High Risk

Employees" is facially discriminatory to themselves and to all
other miners subject to this program and that, accordingly, the
program itself and any action taken under the program is illegal
under section 105(c)(1) of the Act.

fn. 2 (continued)
or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act."

2 Under 30 C.F.R. 50.2(e) a reportable occupational injury is
defined as "any injury to a miner which occurs at a mine for
which medical treatment is administered, or which results in
death or loss of consciousness, inability to perform all job
duties on any day after an injury, temporary assignment to other
duties, or transferred to another job."

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In order to establish a prima facie case of discrimination
under section 105(c) of the Act, a complaining miner bears the
burden of production and 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 (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 (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. 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, e.g., 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). The
Commission has also recognized that certain programs and policies
established by a mine operator may be facially discriminatory.
See Secretary on behalf of Price and Vacha and UMWA v. Jim Walter
Resources, Inc., 12 FMSHRC 1521 (1990); Local Union 1110, United
Mine Workers of America and Robert R. Carney v. Consolidation
Coal Company, 1 FMSHRC 338 (1979).

 It is not disputed that a report of a mine injury may

constitute a "complaint under or related" to the Act and is the
"exercise" of a protected right under the Act. It follows
therefore that any interference with the exercise of that right
by a mine operator constitutes a violation of section 105(c)(1)
of the Act. Clearly, the "Program for High Risk Employees" at
the Dilworth Mine, by subjecting its employees to suspension and
discharge based upon the filing of Reports of Personal Injury
inhibits and interferes with the reporting of mine injuries, and
by so doing, constitutes an illegal interference with protected
activity.

 Consol argues that the program at issue is not based upon

the report of personal injury itself but rather upon the
underlying injury, and that there is no statutorily protected
right to sustain injuries. While it is true there is no
protected right to sustain injuries, Consol's argument is
bottomed on the erroneous premise that the discipline, suspension
and discharge under the program is based upon the actual injury
rather than the reporting of the injury. The simple fact is
however, that if an injury is not reported it is not counted

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against the miner. The program accordingly creates
an obvious and persuasive disincentive to report injuries.
Sustaining an injury and the reporting of the injury are,
moreover, so inextricably interrelated that the unprotected
sustaining of an injury cannot under this program be separated
from the reporting of the injury.

 While it is well established that neither the Commission nor

its judges sit as a super grievance board to judge the industrial
merits, fairness, reasonableness, or wisdom of programs such as
the Dilworth Program for High Risk Employees they do have the
affirmative duty to determine whether such a program or some
component thereof conflicts with rights protected by the Act.
Under the circumstances of this case it is clear that the
Complainants have sustained their burden of proving that the
Program for High Risk Employees implemented by Consol at its
Dilworth Mine on January 1, 1990, is facially discriminatory in
violation of section 105(c)(1) of the Act and does indeed
conflict with protected rights. Under the circumstances, there
is no need to consider the Complainants' alternate theories of
illegality.
ORDER

 The Consolidation Coal Company is hereby ordered to

immediately cease and desist from implementation of any
disciplinary action under the Dilworth Mine "Program for High
Risk Employees" and it is further ordered that all records be
expunged of any reference to any disciplinary action taken under
said program. Since no costs, damages or other remedies have
been sought in this case there is no need for further proceedings
and therefore this decision represents the final disposition of
this case before this judge.

                          Gary Melick
                          Administrative Law Judge

3 The injury would therefore also go unreported and not be
counted against the mine operator under the Part 50 regulations.
Under the circumstances another serious consequence of the
Program is therefore a likelihood that injuries and potentially
serious hazards would go unreported to the operator and to MSHA
and that such hazards would remain uncorrected.

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                          APPENDIX A

        Dilworth Mine Program for High Risk Employees

   1.   This Program is effective January 1, 1990; only
        injuries occurring on or after January 1, 1990
        will be counted in this Program.

   2.   Each employee continues to be obligated to report
        to Management any work related incident which
        results in personal injury to the employee and to
        complete a Report of Personal Injury (RPI) for
        each such injury.

   3.   Step I:    An employee who experiences four
                   injuries in eighteen working months will
                   be counseled by Management and will be
                   designated as a High Risk Employee.

                   A High Risk employee may clear his
                   record under this Program by working
                   twelve working months (from the date of
                   the injury which resulted in his being
                   designated a High Risk employee) without
                   experiencing an injury.

   4.   Step II:   A High Risk employee who experiences an
                   injury within twelve working months (of
                   the date of the injury which resulted in
                   his being designated a High Risk
                   employee) will (a) be counseled, (b) be
                   suspended from work for two days without
                   pay, and (c) will attend a special
                   awareness session prior to returning to
                   work after his suspension.

                   A High Risk employee who has been
                   counseled, has been suspended, and has
                   attended a special safety awareness
                   session may clear his record under this
                   Program by working twelve working months
                   (from the date of the injury which
                   resulted in his being counseled,
                   suspended, and sent to the special
                   safety awareness session) without
                   experiencing an injury.

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5. Step III: A High Risk employee who has been
counseled, suspended and sent to a
special safety awareness session (under
Step II) who experiences an injury
within twelve working months (of the
date of the injury which resulted in his
being counseled, suspended, and sent to
a special safety awareness session -
under Step II) will be suspended with
intent to discharge.

   6.   For purposes of this Program, the term working
        month will mean calendar months, extended by:
                  (a) The number of calendar days that
                       the employee is eligible for (or
                       would be eligible for upon proper
                       application) Sickness and Accident
                       Benefits; and

                  (b)   The number of calendar days that
                        the employee is eligible for
                        Workers' Compensation temporary
                        total disability benefits; and

                  (c)   The number of Monday thru Friday
                        calendar days on which the mine is
                        idle, for reasons other than
                        Regular Vacation and Holidays, and
                        on which the employee does not
                        perform idle day work; and

                  (d)   The number of calendar days that
                        the employee is laid-off.

        Example: An employee is injured on January 16,
        1990. Eighteen calendar months from January 16,
        1990, is July 16, 1991. If the employee misses
        work for a period of four calendar days due to
        sickness, between January 16, 1990, and July 16,
        1991, the July 16, 1991, date would not be
        extended, since the employee is not eligible for
        Sickness and Accident Benefits until the eighth
        day of disability due to sickness. If the
        employee misses work for a period of thirteen
        calendar days due to sickness, between January 16,
        1990, and July 16, 1991, the July 16, 1991, date
        would be extended by six days to July 22, 1991,
        since he would not be eligible for Sickness and
        Accident for the first seven days of absence due
        to sickness, but he would be eligible for these
        benefits for the last six days of the absence.

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7. Nothing in this Program prohibits Management from
disciplining (up to and including discharge) any
employee for any action which, irrespective of the
existence of this Program, would in Management's
judgment constitute grounds for discipline (up to
and including discharge). For example, if an
employee sustains an injury due to his violation
of a work or safety rule, the injury would be
counted in this Program, and the employee would be
subject to discipline for violation of the work or
safety rule.

   8.   Management reserves the right to exclude an injury
        from this Program in a rare situation when
        Management's investigation of the injury reveals
        absolutely no culpability on the part of the
        injured employee and when excluding the injury
        from the Program appears to Management to be in
        the best interest of attaining a safe working
        environment for all employees at the mine. (Joint
        Exhibit No. 1).

Distribution:

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)

William Manion, Esq., Legal Counsel, UMWA Region 1,
321 Washington Trust Building, Washington, PA 15301
(Certified Mail)

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