Reading Anthracite Company

Plain-English summary

Leonard Bernardyn drove haulage trucks for Reading Anthracite at the Wadesville Pit. He said he drove slowly because misty weather made the road slippery, and the Secretary alleged that Reading discharged him in retaliation for that protected safety activity. Judge Avram Weisberger found that Bernardyn established a prima facie discrimination case, but credited the company’s evidence that it would have fired him for excessive profanity and threatening language over the CB radio even without the safety complaint. The judge dismissed the complaint and dissolved the temporary reinstatement order; the Commission later vacated that determination and remanded for further analysis.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed and the temporary reinstatement order was dissolved; the Commission later vacated the no-discrimination determination and remanded.
• Subsequent review: The Commission reviewed the case in penn-99-129-d-commission-2.
• Key point: The ALJ accepted the operator’s affirmative defense that it would have taken the same action for unprotected conduct, but the Commission later required further analysis of that defense.

Full text (FMSHRC public release)

[DOCID: f:pn99158.wais]

READING ANTHRACITE COMPANY
July 26, 1999
PENN 99-158-D

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                      July 26, 1999

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 99-158-D
on behalf of :
LEONARD M. BERNARDYN, : WILK CD 99-01
Complainant :
v. : Wadesville Pit
: Mine ID 36-01977
READING ANTHRACITE COMPANY, :
Respondent :

                         DECISION

Appearances: Troy E. Leitzel, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Complainant;
Martin J. Cerullo, Esq., Cerullo, Datte &
Wallbillich, P.C., Pottsville, Pennsylvania,
for the Respondent.

Before: Judge Weisberger

1. Introduction

   This case is before me based upon a Complaint of
   Discrimination filed by the Secretary of Labor ("Secretary") on
   behalf of Leonard M. Bernardyn alleging that Bernardyn was
   discharged by Reading Anthracite Company ("Reading") in violation
   of section 105(c) of the Federal Mine Safety and Health Act of
   1997 ("the Act").[1] Pursuant to notice, the case was heard on
   May 18, 1999, in Harrisburg, Pennsylvania.[2] On July 15, 1999,
   the Parties filed Proposed Findings of Fact, and Briefs.

II. Applicable Law

 The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC

2460 (December 1993), reiterated the legal standards to be
applied in a case where a miner has alleged that he was subject
to acts of discrimination. The Commission, Tri-Star, at 2463-
2464, stated as follows:

      The    principles    governing   analysis   of   a
 discrimination  case  under  the   Mine  Act  are  well
 settled.   A miner establishes a prima  facie  case  of
 prohibited discrimination by proving 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.,  2  FMSHRC  2786,  2797-800
 (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  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  in  no part motivated by protected
 activity.   Pasula,  2  FMSHRC  at  2799-800.   If  the
 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, 2 FMSHRC at 2800; Robinette,  3  FMSHRC at 817-
 18; see also Eastern Assoc. Coal Corporation, v. United
 Castle Coal Co., 813 F.2d 639, 642 (4th Cir.  1987).

III. The Secretary's Prima Facie Case

   A.  The Secretary's Witnesses

 Leonard  Bernardyn, a truck driver at the pit  in  question,

testified that at the start of the shift on November 10, 1998,
the weather was misty, and the road was starting to get slick.[3]
Bernardyn indicated that on the morning of November 10, he felt
that if he were to go at his normal speed he would go in
circles.[4] He indicated that he was stopped by Stanley
Wapinski, the general superintendent at Reading, who told him
that he was going too slow. Bernardyn told Wapinski that it was
getting slippery, and Wapinski informed him to get moving.

 Bernardyn  utilized  a  CB  radio  that  was in his truck to

attempt to contact Thomas Dodds, another truck driver, who was a
union representative. Bernardyn broadcasted over the CB radio
that he was being harassed, and was asked to drive faster than
warranted by the road conditions. Bernardyn conceded that he did
use curse words at the time.

 Shortly thereafter,  Bernardyn was stopped again by Wapinski

who told him that he was holding everything up, and directed him
to park. After Bernardyn stopped the truck, Frank Derrick,
Readings general manager, informed him that he was fired.
According to Bernardyn, Derrick did not tell him that he was
being fired for cursing, or for using threatening language.

 Dodds[5]  confirmed that on the morning at issue  the  roads

were slick. He also confirmed Bernardyn's testimony with regard
to what Bernardyn communicated over the CB radio. Dodds
indicated that generally miners on the site at issue do not use
curse words on the CB radio.

 Thomas  Goodman,[6] a retired Reading  employee  and  former

truck driver, confirmed that the roads were slick on the morning
at issue. Goodman testified that at approximately 8:00 a.m., the
truck that he was driving began to slide. He also essentially
confirmed Bernardyn's testimony as to what Bernardyn had said
over the CB radio.

 Dale  Coombe, a truck driver employed by Reading, who worked

at the site on the date in question, confirmed that it was
raining. He indicated that generally when it rained the roadways
become slick, and that Titan trucks easily spin around in such
conditions. He confirmed that he heard Derrick ask Wapinski,
over the CB radio, what was holding up the Titan trucks, and
Wapinski stated that the drivers were driving cautiously as the
conditions were slippery. He also confirmed that during his
second trip of the day, he heard Derrick tell Wapinski over the
CB ". . . to tell the driver to park the truck and send him out
of the pit" (Tr. 16, May 18, 1999).

 Coombe indicated  that  one  time  a Titan truck that he was

driving had spun around in the mud, and the foreman, Robert
Shellhammer, called him a "f---ing liar" and that "I was f---ing
dangerous, and that he would get me fired if it was the last
thing he would do (Tr. 19, May 18, 1999). Coombe was asked at
what speed he was, "on a general basis," told to drive, and he
answered as follows: "[t]hey want you to drive as fastly as you
can as long as you do it safely . . ." (sic) (Tr. 19, May 18,
1999).

 John  Downey,  the  President  of  the  local union, who had

worked for Reading for approximately 20 years until June 1998,
indicated that in September 1998, at a grievance hearing that he
attended it "c[a]me out" (Tr. 28, May 18, 1999) that Edward
Mitchell, a truck driver employed by Reading, who alleged he was
"forced" to drive a truck not in his classification, directed the
following towards his supervisor: "you can s--- my d--- if you
think I will drive that truck" (Tr. 29, May 18, 1999). According
to Downey, Mitchell was not discharged by Reading for the use of
this profanity, but instead was fired for refusing to perform a
job task that was not in his classification. Downey stated that
Mitchell was rehired the following day.

 Downey  testified that he was cursed at by Wapinski who used

the following language: "you're a f----n committee man" (Tr. 30,
May 18, 1999). According to Downey, on another occasion,
Wapinski said to him as follows: "why don't [you] go get an f----
ing job at the mall" (sic) (Tr. 31, May 18, 1999). Downey
indicated that a meeting had been arranged between the Union and
Reading to resolve the issue of cursing at the site.

 Jay Berger testified that in his capacity as a UMW Executive

Board Member, he has attended grievance hearings at the mine, and
that it is "common" for profanity to be used at these hearings
(Tr. 47, May 18, 1999).

   B.  Reading's Witnesses

 Derrick,  Shellhammer,[7]   and  Wapinski,[8]  testified  on

behalf of Reading, that on the date at issue, the roads were
slippery, that Bernardyn was going slower than the normal speed
due to the road conditions, that Wapinski told him to get moving,
that Wapinski stopped him a second time and told him that he was
holding everything up, and that shortly thereafter Derrick
informed him that he was being fired.

   C.  Discussion

 Based on the essentially uncontroverted evidence I find that

Bernardyn engaged in protected activities by driving at a speed
consistent with the road conditions, and that Reading took action
adverse to him by firing him. Moreover, due to the coincidence
in time between Derrick's ordering Wapinski to stop Bernardyn
twice for holding things up, and his (Derrick's) firing
Bernardyn, I find that the Secretary has established that
Bernardyn's termination by Reading was motivated, in some part,
by his protected activities.

IV. Reading's Affirmative Defense

 Reading presents an affirmative defense  that,  in  essence,

Bernardyn would have been fired in any event based on his
unprotected activities, i.e., the use profanity over a CB radio,
and the use of threatening language he directed at Wapinski.

 It is the Secretary position, in contrast, that Reading  has

not established its affirmative defense. In support of its
position, the Secretary cites the fact that there was no evidence
adduced that Bernardyn was warned concerning the use of
profanity, that there was no evidence adduced that Reading had
any company policy prohibiting swearing, that, according to the
testimony of Coombes, Downey, and Berger, profanity was used at
the mine by miners and management, and that, according to the
testimony of Downey, on one occasion, a miner had directed
profanity against a supervisor, but was not discharged by
Reading.

 On the  other  hand,  Derrick  testified  that  after he had

directed Wapinski to stop Bernardyn a second time for driving too
slow, and to meet him at the dump area, he (Derrick) had intended
to transfer Bernardyn from his usual run, and put him instead on
the coal run using a different truck. Derrick indicated that
such a reassignment is not considered to be disciplinary, and he
related four instances wherein he had reassigned individuals to
other jobs after it had become apparent that they were not
performing their original jobs satisfactorily.

 Derrick asserted  that  his  decision to terminate Bernardyn

was based upon the fact that he heard Bernardyn use the following
threatening language over the CB directed against Wapinski "I'll
get the little f----r" (Tr. 90, March 16, 1999). He also
indicated that there was no disparity between his decision to
terminate Bernardyn for the use of profanity, and his decision to
only give warnings to three other individuals who had used
profanity directed against their foreman. He explained that
Bernardyn, in contrast to these individuals, used language
threatening a foreman over the CB radio, whereas the other three
individuals did not use threatening language, and did not
broadcast their profanity over the CB radio. Also, he noted that
whereas these three individuals made a profane remark only once,
Bernardyn used profanity "nonstop" (Tr. 71, May 18, 1999) for
approximately 8-10 minutes.

      In  evaluating  the evidence regarding  the  events  at

issue, I note that Bernardyn conceded that he did curse over the
CB. Also, the Secretary did not impeach or call any witnesses to
contradict or rebut Derrick's testimony that Bernardyn cursed
"nonstop" over the CB radio for approximately 10 minutes, and
used threatening language directed against Wapinsky, his
supervisor.[9] I thus accept Derrick's testimony in these
regards. Accordingly, I find credible Derrick's testimony that
his decision to immediately terminate Bernardyn was made when
Bernardyn cursed and threatened his supervisor over the CB.
Hence, I thus find that Reading has established that its decision
to immediately terminate Bernardyn would have been taken in
either event based upon Bernardyn's unprotected activities, i.e.,
excessive profanity, and threatening profane language directed
over the CB radio against his supervisor. I find that this
decision by Derrick not to have been an unsound business decision
of such a degree as to lead to an inference that it was
pretextual.

 Therefore,  for all the above reasons, I find that  although

the Secretary has established a prima facie case, Reading has
prevailed in establishing its affirmative defense. I thus
conclude that the Secretary has not prevailed in establishing
that Barnardyn was discharged in violation of section 105(c) of
the Act. Therefore, the Complaint shall be dismissed.

                          ORDER

 It  is  ORDERED that the Order of  Temporary  Reinstatement,

issued on March 19, 1999, (21 FMSHRC, supra) is hereby DISSOLVED.
It is further ORDERED that the Complaint filed in this case shall
be DISMISSED, and that this case shall be DISMISSED.

                          Avram Weisberger
                          Administrative Law Judge

Distribution:

Troy E. Leitzel, Esq., Office of the Solicitor, U. S. Department
of Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C.,
Garfield Square, 450 West Market Street, P. O. Box 450,
Pottsville, PA 17901 (Certified Mail)

dcp

FOOTNOTES

 [1]:  On  March  4,  1999,  the  Secretary,  on  behalf  of

Bernardyn, filed an Application for Temporary Reinstatement.
Subsequent to an evidentiary hearing on this application held on
March 16, 1999, an order was issued directing Reading to
reinstate Bernardyn (Secretary of Labor on behalf of Leonard M.
Bernardyn v. Reading Anthracite Company, 21 FMSHRC 339 (March
19,1999)).

 [2]:  At the March 18, 1999 hearing,  the transcript of the

temporary reinstatement proceeding, 21 FMSHRC, supra, and the
exhibits admitted at that proceeding, were ordered incorporated
into the record of the instant proceeding.

 [3]: Bernardyn testified at the March 16, 1999 hearing.

 [4]:  In general, the truck drivers are not informed by the

company as to the maximum speed at which the trucks are to be
driven.

 [5]:  Dodds testified at the March 16, 1999 hearing.

 [6]:  Goodman testified at the March 16, 1999 hearing.

 [7]: Shellhammer testified at the March 16, 1999 hearing.

 [8]: Wapinski testified at the March 16, 1999 hearing.

 [9]:  Barnardyn was asked whether  he threatened anybody on

the CB and he answered as follows: "No. I never threatened
anybody in my life." (Tr. 32, March 16, 1999). However, he did
not testify on rebuttal to rebut Derrick's testimony regarding
the specific words he used directed against Wapinski. It thus
is reasonable to draw an inference that he used these words, but
did not consider them to constitute a threat.