Secretary of Labor on behalf of Juan Smitherman v. Warrior Met Coal Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Juan Smitherman was a senior roof bolter at Warrior Met's Mine No. 4, a mine subject to frequent methane spot inspections. He raised repeated safety concerns, including a complaint that roof bolting was about to occur without required ventilation controls, and asked to leave his supervisor's section because he considered it unsafe. The next shift, the supervisor assigned him supply work and later accused him of sleeping or loafing during a break. Judge William B. Moran credited Smitherman's account, found the company's investigation cursory and biased, and rejected sleeping and loafing as pretextual reasons for discharge. He held that Warrior Met fired Smitherman because of his protected safety activity and ordered reinstatement, restoration of pay and benefits, and expungement while retaining jurisdiction to set final monetary relief and a civil penalty. The Commission later affirmed the final discrimination decision and remedies.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 813(i), 815(c)(1), and 815(c)(3)
• Outcome: The discharge was found discriminatory, immediate reinstatement and corrective relief were ordered, and the amount of further relief and penalty was reserved.
• Subsequent review: The Commission later affirmed the discrimination finding and final relief in se-2021-0153-commission.
• Key point: A superficial and biased investigation, combined with shifting reasons for discharge, supported a finding that stated work-rule violations were pretext for retaliation.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

SECRETARY
OF LABOR,    

MINE
SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of JUAN SMITHERMAN,       

Complainant

v.

WARRIOR
MET COAL MINING, LLC,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. SE 2021-0153

MSHA
Case No. SE-MD-2021-03

Mine
I.D. No. 01-01247

Mine:
Mine No. 4

DECISION ON LIABILITY

Appearances: C. Renita H ollins,
Esq., for the Department of Labor, Timothy J. Baker, Esq., for the Complainant,
and Brock Phillips Esq . and Allen B. “Josh” Bennett,
Esq., for the Respondent

Before: Judge
William B. Moran

This case is
before the Court upon a complaint of discrimination under Section 105(c)(1) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(1) (“Mine
Act” or “Act”). At issue is whether Complainant Juan Smitherman (“Smitherman”
or “Complainant”) was wrongfully terminated by Respondent Warrior Met Coal Mining,
LLC., in retaliation for exercising his rights under the Act by raising safety
issues with his supervisor. [1]

For the reasons
which follow, the Court finds that Mr. Smitherman was wrongfully terminated for
exercising those rights; that Smitherman would not have been fired but for
exercising those rights and that the Respondent failed to establish an
affirmative defense.

I.               
Findings of Fact [2] with
Discussion

Testimony of Zachary Salyers, foreman of the No.4 section and Complainant’s
supervisor

Testimony began with the
Secretary calling Zachary Salyers, section foreman and Complainant Juan
Smitherman’s supervisor on the No. 4 Section since January 2021, to the stand
as a hostile witness. Vol. 1, Tr. 37. Foreman Salyers agreed that on February
2, 2021, he and Smitherman, a roof bolter, had a disagreement about whether it
was safe to roof bolt without dust bags. Vol. 1, Tr. 44, 100. Salyers, though
disagreeing with Smitherman’s view about the requirement to use dust bags, stated that he
told Smitherman he did not have to bolt if he did not have dust bags. Vol. 1, Tr.

45. He also maintained that Smitherman never made any other safety complaints
    to him. Vol. 1, Tr 48. Salyers stated that a month
    elapsed between the dust bag incident and a subsequent matter, which involved a
    ventilation fly pad. Vol. 1, Tr. 101. Fly pads control ventilation, as they serve
    as “ventilation controls to force the air to ventilate working areas, face
    areas, things of that nature.” Vol. 1, Tr. 49. [3]

By his own admission, Salyers confirmed
that, on March 1 , 2021, during the owl shift (i.e., the
night shift) from February 28-March 1, two roof bolters on his section , Jonathan Banks and Steven Volts, made a safety complaint
to him – namely that fly pads had not been installed in an entry. Vol.
1, Tr. 49, 149. Of significance, Salyers admitted that as foreman it is his
responsibility to ensure that curtains or fly pads are installed or in
place before mining. Vol. 1, Tr. 52. Salyers claimed that he did not know that Complainant
Smitherman had any involvement in Banks and Volts raising the fly pads issue
with him , and denied suspecting Smitherman brought
the matter to the attention of Banks and Volts. Vol. 1, Tr. 53. The
Court does not find this assertion by Salyers credible – while there is no
direct evidence of his knowledge, Salyers admitted that Smitherman was on the
section the night the issue arose and, given the evidence in the record as a
whole of the friction between the Complainant and him, it is ineluctable that Salyers
made the logical connection between Smitherman and his fellow bolters’
complaints . Smitherman was , after all , the senior bolter on
the section, working with Banks and Volts.

Following the fly pad matter, Salyers
recounted that Smitherman came to him before the beginning of the following
shift (March 1, for the March 1-2 shift) and informed Salyers that he did not
want to continue to work on his section and wanted to be
transferred to the other side of the mine. Vol. 1, Tr. 54. Salyers denied that
Smitherman gave a reason for the request. [4] Vol. 1, Tr. 54, 140-141. Salyers
contacted his shift foreman, J.D. Earnest, about Smitherman’s request to be
moved, and Earnest told him to assign Smitherman to the Lo-Trac, which is a small, compact, diesel-powered
forklift, about 5 feet wide and 12 to 15 feet long, and used to bring supplies
to the section. Vol. 1, Tr. 55-56, 142.

At about 11:45 p.m. that evening, which
was early in the shift, Salyers instructed Smitherman
to bring supplies to the section. Vol. 1, Tr. 59. As noted above, Smitherman
was the senior roof bolter on the shift at the time he was assigned to the
Lo-Trac. Vol. 1, Tr. 57. Salyers stated that Smitherman got on the Lo-Trac, but
that he did not see him again until 3 a.m., over
three hours later. Vol. 1, Tr. 60-61. Pressed as to what Smitherman was
doing between 11:45 p.m. and 3 a.m., Salyers admitted he had no information as
to what Smitherman was doing during that time. Vol. 1, Tr. 63-64. Despite not
seeing Smitherman during that time period, Salyers defended his conclusion that
Smitherman did not bring up supplies because he did not see “all the water line
that was supposed to [have been] brought up.” Vol. 1, Tr. 60-61. Salyers added
that around 6 or 6:30 a.m. when he next saw Smitherman “there was only 2 pounds
of block and 1 pound of rock dust brought up.” Vol. 1, Tr. 61-62, 65-66. When
asked, Salyers admitted he did not tell Smitherman the exact number of supplies
to bring up, but when he saw him at 3 a.m., he was not pleased at the speed with
which Smitherman was bringing up supplies. Vol. 1, Tr. 65. However, Salyers did
not tell Smitherman at the time that he was not pleased with his progress,
testifying that he told Smitherman “we would get away from the water line since we can’t get it done and we would work towards
our block,” Vol. 1, Tr. 65-66.

The Court has reason to doubt
Salyers’ version of the work Smitherman accomplished that evening. S alyers gave Smitherman
instructions around 11:45 p.m., but did not see him again until 3 a.m. and
after that did not see him until 6 or 6:30 a.m., the time of their encounter in
the supply hole. Vol. 1, Tr. 59, 60-61, 66. With little personal contact, Salyers’
judgment about Smitherman’s efforts was based on deduction, not observation,
which impeded his conclusion as to whether Smitherman was “loafing” or making
an effort to complete his assigned tasks.

When asked about his
instructions to Smitherman to bring a bundle [5] of water pipes, Salyers agreed that
he told Smitherman to look in different locations for the pipes. Vol. 1, Tr 80.
Salyers also admitted
that Smitherman later informed him that he could not
find the pipes. Vol. 1, Tr. 80-81. Salyers never found the pipes either, informing the Court
that he never looked for them. Vol. 1, Tr. 81. Salyers confirmed that after the
shift had ended the pipes were found in the supply hole; Salyers did not say
who found them, and counsel did not ask. Vol. 1, Tr. 81-82. However, when
pressed by the Court to directly answer the question, Salyers revealed that
he did not see the water pipes in the supply hole. Vol.
1, Tr. 83.

The Court notes that
throughout his testimony Salyers exhibited reluctance to answer straightforward
questions, on subjects including but not limited to his role in “writing up”
employees, his instructions to Smitherman about bringing up supplies on the Lo-Trac,
and his reasoning behind his conclusion that Smitherman had not brought up
supplies, answering only when repeatedly pressed on the issue by opposing
counsel or, sometimes, by the Court itself. Vol. 1, Tr. 60-61, 69-70, 82-83.

As noted above, Salyers testified that he
next saw Smitherman sometime between 6 and 6:30 a.m., asserting that the
Complainant was sleeping on the Lo-Trac at that time. Vol. 1, Tr. 67. According to Salyers, Smitherman was on the Lo-Trac
in the supply hole, with the Lo-Trac’s lights and his miner’s cap light both
turned off. Id. No one else was then present in the supply hole, aside
from Salyers and Smitherman. Vol. 1, Tr. 97 Therefore, as discussed
further, infra, there were only but two individuals involved in this
encounter; Salyers and Smitherman, and they presented very different accounts
of the event.

According to Salyers,
Smitherman told him he was taking a break; Salyers conceded that taking a break
would
be permissible “if he had just performed some type of strenuous task and he
wanted like, say, a water break or catch-his-breath break.” Vol. 1, Tr. 68, 79.
Yet, when asked if he confronted Smitherman over this, Salyers answered that he
“didn’t tell [Smitherman that] he was taking an unauthorized break.” Vol. 1, Tr.
67-68. Nor, when Salyers came upon Smitherman, did he use the word “sleeping”
when speaking to him. Vol. 1, Tr. 71. Salyers denied that Smitherman told him
he had just completed a strenuous task, namely loading a rock duster. Although Salyers
agreed that Smitherman had put a crib under the track, he did not consider that
task to be strenuous. Vol. 1, Tr. 69 .

Salyers then informed Smitherman that he was going to write him up . Vol. 1, Tr. 69. Salyers
clarified in his testimony that he does not actually do the write-up. Instead,
he passed on his account of the event to those above him and those individuals
create the write-up. To that end, Salyers called Pete Richardson, the Number 4
Section coordinator, and his direct supervisor, and informed him that he found
Smitherman asleep on the Lo-Trac and that he should be written up or fired
because of that. Vol. 1, Tr. 36, 97. After the end of the shift, Salyers met
with Sherry Sterling, Human Resources manager, and Jason
Lee, the general mine foreman . Vol. 1, Tr. 70-71. Salyers recalled telling
Sterling and Lee that Smitherman was sleeping. Vol. 1, Tr. 71. Sterling
instructed Salyers to make a written statement about the incident. Vol. 1, Tr.

72. The statement, written on March 2, 2021, consists of one, handwritten,
    page. [6]
    Ex P. 38, Vol. 1, Tr. 73 .

Aspects about Salyers’ statement are
disconcerting. Agreeing that his statement was written close in time to the
event in issue, he admitted that the word “sleeping” is not in it. Vol. 1, Tr.

77. At odds with the foreman’s claim, his statement includes that Smitherman
    told Salyers he was taking a break. Vol. 1, Tr. 78. Given that, one would
    expect Salyers’ statement to have included his contradictory claim. It is noted
    that after giving his statement to human resources,
    no one from Warrior Met spoke to Salyers about the incident again. Vol. 1, Tr.
    98.

In response to questions from
counsel for the Complainant, Salyers acknowledged that as section foreman it is
his goal to produce as much coal as possible. Vol. 1, Tr. 89-90. Salyers
informed that he receives bonuses based on his job performance, which are based
on production and safety statistics. Tr. 90-91. However, when asked, Salyers
outright denied receiving any information or statistics from Warrior Met about
the amount of production done on his shift. Vol. 1, Tr. 90.

Testimony of Complainant Juan
Smitherman

The Court notes that
Complainant’s original MSHA Complaint erroneously reported that the events in
question occurred on the March 7-8, 2021 owl shift, when in fact they occurred
on the March 1-2, 2021 shift. Both parties agree March 1-2, 2021 is the correct
date, and the matter is not disputed. Vol. 1, Tr.
189-90, 201.

The Secretary then called the
Complainant, Juan Smitherman. [7] The Complainant has over 19 years
of experience as a miner. Vol. 1, Tr. 8. At the time
of his termination, Smitherman was the senior roof bolter at the Number 4 Mine
in Brookwood, Alabama, working on the Number 4 section under the direct
supervision of Zachary Salyers. Vol. 1, Tr. 16, 57. Smitherman and Salyers work
the owl shift at the mine, which begins at 10:30 p.m. and ends when the
next shift arrives, at about 7:30 a.m. Vol. 1, Tr 153. Smitherman had worked as
a roof bolter for several years before his employment with Warrior Met Coal,
working for Jim Walters mining before it was bought
out by Respondent. Vol. 1, Tr. 113.

Warrior Met Number 4 mine is a
very gassy mine,
meaning it emits large quantities of methane and there are ignitions at the
mine. Vol. 1, Tr. 118. The gassy nature of the mine is not in dispute, as Salyers,
too, concurred with that description and, as noted infra , Section 103(i)
of the Mine Act requires the Secretary to provide one spot inspection every
five days for mines that liberate “excessive quantities” of methane, which is
more than one million cubic feet of methane during a 24-hour period. 30 U.S.C.
§ 813(i). Vol. 1, Tr. 36-37. Smitherman knows of such ignitions at the mine and
experienced two of them himself. Vol. 1, Tr. 118-119. Relating one such
incident, he noted an event when a spark from roof bolting set the “whole
ceiling . . . on fire in a matter of a split second.” Vol. 1, Tr. 119. Fire
extinguishers were required to put the fire out. Vol.
1, Tr. 120.

Mr. Smitherman acknowledged
that he
was suspended for sleeping on the job some three years earlier, on February 2,
2018. He spoke of the incident, noting that at that time, it was during the
last hour of the shift, around 6 a.m., when he and his
partner “were finishing up for the day, and we put our tools up and sat at the little break table and waited until the shift was
over with. And we were just talking, and it got quiet, and we both dozed off.” Vol.
1, Tr. 122, 128. Smitherman and the fellow miner were suspended for 30 days.
Ex. P 14, Vol. 1, Tr 124. The record of disciplinary action was admitted as
Exhibit P 14. Vol. 1, Tr. 126. Smitherman stated that he has never slept on the
job since that event. Vol. 1, Tr. 127.

Salyers became Smitherman’s
supervisor around January 2021; and the Complainant had already been working on the section prior to Salyers’
arrival. Vol. 1, Tr. 129. Smitherman described having “several disagreements”
with Salyers “as far as how safety goes in the section.” Id. The Court
finds this accounting by the Complainant was credible and as such it is
informative about the atmosphere between the two men prior to the incident in
issue. Smitherman characterized the issues between him and Salyers as
“generally, [Salyers] didn’t make sure that the ventilation was correct when
people were doing different jobs on the section, and he didn’t put out the
adequate amount of rock dust in the returns to keep the
– in case of an explosion to keep the – the—the intensity of an explosion
down.” Vol. 1, Tr. 129-130.

Smitherman recalled his disagreement with Salyers about using dust bags on the roof
bolter differently. [8] Vol. 1, Tr. 130. His
recollection was telling Salyers “the roof bolter
didn’t have any dust bags and that there wasn’t any on the section, and I told
him that I wasn’t going to run it without the dust bags because, you know, it’s
against company policy.” Vol. 1, Tr. 131. Smitherman’s basis for the company
policy claim was that he was aware of Warrior Met receiving a citation from
MSHA about dust on the section and dust behind the roof bolter filters. Id. Smitherman
recounted that to rectify the violation, “they had us sign a form saying that
we’re going to change that filter at the beginning of each shift and we’re not to run the roof bolter without the
filter.” Id. The dust bags prevent dust from getting behind the filter
and contain the dust in the dust box, to p revent it from becoming airborne when the box is emptied. [9] Id.
Salyers disagreed, believing Smitherman could run the bolter without the
dust bags . Smitherman
took issue with Salyers’ view, stating “[a]nd I told him, No, you’re
wrong. I said, I’m not supposed to run that without a dust bag.” Vol. 1, Tr.

133. Salyers then left to consult his supervisor. When he returned, according
     to Smitherman, “[Salyers] didn’t say anything else to
     me, but he got the other two roof bolters and talked to them and see if they
     were willing to run it without the dust bag, and they did run it without the
     dust bag.” Id. Smitherman asserted that he customarily used dust bags
     before Salyers became his supervisor. Vol. 1, Tr. 136. After the end of his
     shift, Smitherman went to the safety department and talked with the union
     safety representative and the company safety foreman, “and they told me that –
     that I was right and I shouldn’t operate it without the dust bag. They asked me
     who told – who told me to run it, and I told them I wasn’t trying to get
     anybody in trouble. And then they said, the man I told him – and I told him
     [Salyers] told [me] to do it. And he said that he’d have a talk with [Salyers]”
     Vol. 1, Tr. 136-137.

Complainant Smitherman recounted some other safety issues that he raised to Salyers before
February 28, 2021. Vol. 1, Tr. 137. In one incident, the Complainant found a
miner working, cutting at the face, with no slider curtain. He brought
the issue to Salyers’ attention and, by his account, Salyers became upset with
him, asking “why [Smitherman] got a problem with everything.” Vol. 1, Tr. 139.
Smitherman continued, “we just exchanged words, and it got loud. And then it
calmed down after a little while.” Id. The Complainant also testified to
a second safety issue instance, when he found a slider curtain down on the
ground when it was supposed to be hung up; he also brought the issue to Salyers . Vol. 1, Tr. 140-141.

A third safety disagreement was recounted by
the Complainant. It involved Smitherman’s assertion that insufficient rock dust
was being laid down in the returns. Smitherman
explained that five bags of rock dust are supposed to be applied to reduce both
the risk of an explosion occurring and the extent of any explosion that may
occur. Vol. 1, Tr. 141. Salyers, Smitherman recounted, was “supposed to put
five bags down – bags of it down to make sure there’s enough coal-to-dust
ratio. And sometimes [Salyers] would put one bag out, or sometimes he wouldn’t
put any bags down, and he’d take – he’d get the service team to bring . . . the
scoop back there and hand dust it with a bantam duster. I mean, he would just –
regularly didn’t do what he was supposed to do.” Vol. 1, Tr. 142. When
Smitherman raised the issue with him, Salyers responded “there was enough dust
back there.” Vol. 1, Tr. 143. Smitherman related these instances to others in
the section, but did not convey those concerns beyond those miners . Id.

Regarding the February 28,
2021 fly pad incident, Smitherman recalled on that day, while on his way to lunch , noticing a face where, following a cut, “there was no drop
board up, there were no fly pads on the drop board, there was no curtain line
established, and there was no slider. And this was the second cut into the
slant.” [10] Vol. 1, Tr 145.

Smitherman informed:

[T]his was the
second cut, so they were about 40 feet in. And so they’re supposed to establish
that curtain line from . . . the drop board all the way to within 10 foot of
that face when they start to cut. And none of that was done; none of it.

And then you're
supposed to hang up – as the miner advances, he – into the coal cuts it deeper
and deeper, he’s supposed to have a slide up there that extends out with him so
he can constantly stay within 10 foot of that face when he slides the curtain
out. That wasn’t out. It was on the foot – it was on the ground.”

And I saw that . .
. they were backing the roof bolter out of number 1, which was the next entry,
and they were backing it out to put this – the
drop board up, which should’ve been done before they even made the cut. They
made the cut out of turn. Normally, you do all that before you make that second
cut. All that should’ve already been established.

But [Salyers]
wanted to go ahead and get to cutting so – to run his numbers up, so they went
ahead and cut without following the procedures that we normally do.

Vol. 1, Tr.
146-147.

Thinking that the deficiencies would be
corrected, Smitherman went to lunch, but upon his return he discovered that the
fly pads had not been installed. Vol. 1, Tr. 148. With the roof bolters about
to start their job, Smitherman intervened, pointing out that there was no air
coming through the slant. Id . He then informed that he would not be
bolting and advised the other bolters that they should not bolt, either. In a
gassy mine without the air moving as it should, Smitherman worried that bolting
under such conditions “could blow this mine up, you know.” Vol. 1, Tr. 149. His
fellow bolters advised they would seek out Salyers as to what to do. Id. Smitherman
continued that the other bolters found Salyers “[a]nd they said they told him
what I said and that I was going to tell on them if they run that roof bolter .
. . in that cut or whatever.” Vol. 1, Tr. 150. He reiterated this recounting from the bolters to him, stating “[t]hey said that
they told [Salyers]what I said and that I wasn't going – I wasn't going to bolt
it and that . . . they did not bolt it either. They . . . said that they told
him that I might – that they was scared I was going to tell on them.” Vol. 1, Tr.

151. According to Smitherman, after the corrections were completed, he resumed
     his roof bolting duties. Vol. 1, Tr. 152.

The Court notes that
throughout his testimony, Smitherman was able to recall and describe the
instances of his safety concerns in detail and with particularity, a
consideration leading the Court to find his recollection credible. For his
part, Salyers did not challenge Smitherman’s claims of several safety disputes
in early 2021 beyond merely denying them and reiterating generally his
commitment to safety. Vol. 2, Tr. 127-128. Salyers did recall a conversation
with Smitherman about dust bags on February 2, 2021, but denied that he became
upset with Smitherman in the course of that conversation. Vol. 2, Tr. 129-132. Aside
from the dust bag issue, Salyers denied Smitherman ever complaining to him
about any practices or condition underground. Vol. 2, Tr. 132. Salyers
maintained that Banks and Volts were the ones to inform him of the fly pad
issue. Vol. 2, Tr. 137-138.

Based upon its assessment of the Complainant’s testimony, the
Court finds that Smitherman had real and substantial disagreements on safety issues
with his supervisor, Salyers, and that these disagreements likely damaged the
relationship between the two men and gave Smitherman a reputation as a nuisance
in the eyes of his supervisor. Accordingly, the Court finds Smitherman’s safety
concerns credible and reasonable, and particularly so given the gassy nature of
the Number 4 mine. Apart from this determination, it should not be overlooked
that a finding of discrimination does not rest on a miner’s safety concerns
being correct. Marshall
Cty. Coal Co. v. Fed. Mine Safety & Health Rev. Comm’n , 923
F.3d 192, 204 (D.C. Cir. 2019) . Thus, Smitherman’s
concerns did not have to be accurate to be protected activity.

At
the beginning of the next owl shift, around 10:30 p.m. on March 1, 2021, Smitherman
told Salyers that he did not want to continue working on his section. [11] Vol. 1, Tr.

153.    He informed that he couldn’t work that section anymore “with them doing
what they did the day before.” Tr. 154. Smitherman expressed that his desire to
move was because he believed Salyers’ section was dangerous “because of what
was going on up there.” Vol. 1, Tr. 156. Thus, he made it clear that his desire
to move was because of his safety concerns with Salyers’ section. Vol. 1, Tr.
157. Smitherman recalled that he had also spoken with the shift foreman, James Earnest,
about his desire to move to another section on the other side of the mine a few
days earlier, but Earnest informed him he had to wait until another miner moved
from a section. Vol. 1, Tr. 155.

The
Court notes that Salyers in his earlier testimony, supra , claimed not to
know why Smitherman wanted to be transferred from his section. Given the events
of the previous shift and the history between the two men, the Court finds that
Salyers knew exactly what Smitherman was referring to when he expressed a
desire to move “because of what was going on up there.”

In the wake of that exchange, Smitherman
was then directed to run the Lo-Trac, a task that involved bringing up
supplies. Smitherman was the senior roof bolter on the section that day, and an
assignment of that nature, bringing up supplies , would usually go to
the least senior person. Vol. 1, Tr. 158-159. Smitherman had brought up
supplies before, but he had not done it in years and never in his time working
on the N umber 4 section. Vol. 1, Tr. 160. Smitherman interpreted the
work assignment from Salyers as intended to keep him
off the faces and thereby prevent Smitherman
from slowing coal production on the section. Vol. 1, Tr. 161-162.

Salyers told Smitherman to bring up some
water line, advising him where he believed it was located. Vol. 1, Tr. 162-163.
However, Smitherman went to that location and did not see the water line. Vol.
1, Tr. 163. Next, according to the Complainant, supply cars arrived and it took
him all the way to lunchtime to unload those three full cars of supplies. Id .
On his way to lunch, Smitherman saw Salyers, who asked him how many supplies he
had brought up. Id . The Complainant informed his foreman that he “took two
pallets” of supplies because he had to unload the supply car. Salyers responded
to Smitherman, “Oh, okay” and then instructed Smitherman to bring up block and
the dust as well. Id.

Smitherman encountered
obstacles in fulfilling his assigned tasks. In the course of repairing the mine
track, that crew
installed ties, akin to railroad ties, some 6 to 8 feet in length, under the
track, making the passage too narrow for the Complainant to pass through on the  
Lo-Trac. Smitherman testified that he had to remove all the ties out by himself
and then let the track back down in order to pass. Vol. 1, Tr. 165. As he
passed, a pallet on the Lo-Trac tipped over ,
requiring him to restack the blocks and he had to fill in a hole where
the ties had been placed. Smitherman stated that he got out a few more pallets
but the maintenance foreman then asked him to bring up the rock duster from the
millie track. [12]
Vol. 1, Tr. 165-166. Smitherman then resumed bringing up pallets. Vol. 1, Tr.

166. In summary, the Court finds that Smitherman provided a detailed account of
     obstacles hindering the tasks he was initially assigned to accomplish and of
     the additional tasks he was assigned while trying to complete the tasks Salyers
     assigned him.

At that point, according
to Smitherman’s account of the events that day, he felt he needed a break from
his exertions, so he drove the Lo-Trac into a supply hole and turned the
machine off. Vol. 1, Tr. 168. Because there is little air circulation in the
supply hole, it was necessary for him to turn off the machine so that diesel
fumes and heat from the running machine would not accumulate. Id. It was
at this point, during his break, that Salyers came to Smitherman’s rest
location. Smitherman recounted telling Salyers that he was taking a break, and the
supervisor responding that Smitherman had not finished the work he assigned
him. [13]
Id. Smitherman informed Salyers he was not finished yet. Id . According
to Smitherman, Salyers then yelled at him, stating that he “ought to write him
[Smitherman] up.” Id. Smitherman disputed
Salyers ’
claim in his testimony that he had only brought up two pallets in eight hours, asserting
that he had done several tasks and that Salyers saw him several times before
lunch and knew Smitherman had been working. The Complainant also contended that
Salyers knew that the pipes he assigned him to get were not in the three
locations he directed him to go. Vol. 1, Tr. 168-173. Smitherman also asserted
that, by the end of the shift, he had brought up the remaining pallets that
Salyers wanted. Vol. 1, Tr. 175. Smitherman felt that Salyers was trying to
provoke him. Vol. 1, Tr. 169. Having considered the entirety of the testimony
of Salyers and Smitherman, the Court finds the Complainant’s characterization
credible.

Smitherman gave additional details, beyond
those recounted here, in his testimony as to his work activities during the
shift and the obstacles he encountered in trying to complete his work
assignments. The Court, having heard Smitherman’s additional recounting, finds
Smitherman’s further testimony involving his activities on that day to be detailed
and credible. See , generally Tr. 168-179.

The Complainant also contested Salyers’
claim regarding the circumstances when he came upon him in the supply hole,
asserting instead that when he was taking a break in
the supply hole, his headlamp and light were not off . Vol. 1, Tr. 179. Smitherman
further denied that he was asleep. Vol. 1, Tr. 180. Asked why his claim
to not being asleep should be believed, he stated that after his previous
discipline and suspension for sleeping at work, he learned from his mistake and
did not want to have that happen again. Vol. 1, Tr. 181. Smitherman stated that
when Salyers approached him, the supervisor made no claim that he was sleeping.
Id. After Salyers’ remark that he was going to write him up and Smitherman
responding “to do what he had to do,” Salyers then asked him if he had found
the pipe. Vol. 1, Tr. 181-182. Smitherman told Salyers he had not, and Salyers
instructed him where to look for the pipe. Vol. 1, Tr. 182. However, Smitherman
did not find the pipe at the location Salyers gave him. Id. Smitherman
also attested that by the end of his shift he had moved all of the supplies,
save the pipes, to where they were to be delivered. Id.

At the end of his shift, Salyers told
Smitherman to go to the office of Jason Lee, the general mine foreman;
Smitherman did so, but was redirected to the office of Sherry Sterling, the
mine’s Human Resources Manager. Vol. 1, Tr. 183. At the meeting in Sterling’s
office, Lee was present, along with Roscoe Boyd, a representative from the
union. Vol. 1, Tr. 184. Smitherman recounted Boyd asking him, before Sterling
and Lee walked into the room , why Smitherman was
there; Smitherman told him he did not know. Upon entering the room , Sterling
and Lee asked him if he knew why he had been called into the office; Smitherman
told them he did not know the reason. Id. Smitherman was then asked to
tell them what happened on the section. Upon hearing his recounting of the prior
safety-related events, Sterling and Lee asked him why he had not raised those safety
concerns earlier. Smitherman testified that his response to them was that
Warrior Met put production over safety, but he added that Lee did not agree
with that claim. Vol. 1, Tr. 184-185. Smitherman was then informed that he was
going to get “five days off with intent” (i.e., suspended) while the matter was
investigated. Vol. 1, Tr. 185.

Subsequent to his meeting with Sterling
and Lee, Smitherman called Sterling and left a voice message, advising her that
“they need to go to the return on this section and do a dust sample. I told
them that they’re going to find out that [Salyers was] not putting out rock
dust in the returns, and I told her to . . . check on that. And I never got a
response back from her.” Vol. 1, Tr. 186. Smitherman never received any other
information from Sterling about the investigation, never learned who
investigated the matter, and was never asked to give a written statement. Vol.
1, Tr. 187. To the Court, these uncontested failings evince a lack of
objectivity on the part of Warrior Met in their investigation of this matter,
of which more will be said later.

Smitherman also recalled providing the
names of individuals who saw him on the shift at issue, Chris Walls and Wesley
Koots. He believed those two men saw him shortly before
his encounter with Salyers in the supply hole.
Vol. 1, Tr. 188-90.

After his five-day suspension,
Smitherman met with management – Sterling and Chris Thielen were there, and
possibly also Lee, along with “four or five other union officials.” Vol. 1, Tr.

191. At the meeting Smitherman was informed that the investigation had been
     completed and he would be terminated. Vol. 1, Tr. 191-192. Smitherman recalled that Thielen
     stated that he did not know which side to believe on
     the sleeping allegations, instead asserting that Smitherman would be terminated
     because he turned “the Lo-Trac off and stopped working, and [Thielen] said
     [Smitherman is] not allowed to stop working without an – that’s an unauthorized
     break, and that’s what he was firing me over.” Vol. 1, Tr. 192.
     Smitherman testified that he had never heard of an “unauthorized break.” Id.
     In contrast, Smitherman recalled it being normal for miners to occasionally
     take breaks for water or just to collect themselves, and that he had never
     requested prior permission before taking a break. Vol. 1, Tr. 193. Thielen did
     not explain why Smitherman’s break was unauthorized. Instead, he moved from
     that conclusion to relying upon Smitherman’s 2018 signed agreement wherein the Complainant
     agreed that any future infraction would result in termination. Vol. 1, Tr. 194.

The
complainant also stated that, during the meeting announcing his termination,
both he and the union representatives asserted that they believed Salyers’
claim was in retaliation for Smitherman’s ventilation complaint, but that neither
Thielen, nor Sterling, responded to that claim. Vol. 1, Tr. 195. Smitherman
never receive a written copy of the investigation report and was never informed
with whom management spoke in the investigation. Id .

The
Secretary introduced “Employee work location, Mine 4. Clock number, 1307,”
entitled “Warrior Met Coal Record of Disciplinary Action,” admitted into
evidence as Exhibit P4. Vol. 1, Tr. 204. That exhibit provides under the topic of
Reason for Disciplinary Action “Violation of work rule No. 1.” Tr. 199. Smitherman
characterized the exhibit as the “premise they used to fire me on for breaking
work rule 1: wasting time, loafing, and loitering.” Vol. 1, Tr. 204-205.

Upon cross-examination, Respondent’s
counsel turned to that Warrior Met work rule 1, which prohibits “insubordination.”
Vol. 1, Tr 231. That rule gives examples, including “wasting time, loafing,
loitering on the job, neglect of job duties and responsibilities.” Vol. 1, Tr.

232. The Court, while surprised that the Respondent’s use of the term “insubordination”
     applies to behavior such as wasting time, and neglecting job duties, takes the
     mine’s construction of the word on its own terms. However, such an application
     does not excuse the Respondent from establishing that
     such behavior occurred. On the basis of the record as a whole, which includes credibility
     determinations, the Court does not find that the Complainant was
     insubordinate.

Regarding the dust bag dispute
with Salyers, Respondent’s counsel challenged Smitherman’s reference to the
MSHA citation he referred to earlier in his testimony, contending that the
citation actually regarded an air filter; and in that context Smitherman agreed
that the citation did involve an air filter and that an air filter is different
from a dust bag. [14]
Vol. 1, Tr. 233-234. The Court notes again that, in order to be protected activity,
a miner need only have a good-faith belief in the safety concern; whether
Smitherman was correct about dust bag use is not determinative. Additionally,
while distinct, an air filter and a dust bag both involve dust issues for the same
piece of equipment, making the distinction more of nuance.

Respondent’s counsel also noted that the text of Smitherman’s
discrimination complaint makes no mention of the three or four other safety issues he described in his testimony, other
than the dust bag issue and the fly pad ventilation issue. Vol. 1, Tr. 237, 239.
Smitherman agreed and he also agreed that he did not raise those three or four
other safety concerns to anyone at the mine beyond Salyers. Vol. 1, Tr. 234-235.
Smitherman explained his reasoning for not bringing the issues to others: “ As
long as – I’ve been underground for 19 years, and we normally handle
underground underground. We don’t normally take stuff outside, because you have
to have the trust of the guys around you in case you’re in a fire or any – get
a rock on you, or – you got to depend on that next man to get you out. The
people outside can’t get you out.” Vol. 1, Tr. 236.

Respondent’s
counsel then asked Smitherman “[t]hese three or four other safety issues that
you mentioned, those aren’t an issue in this proceeding, are they?” to which
Smitherman disagreed, responding “Yeah, they are issues because they – they
happened.” Vol. 1, Tr. 237.

The
Court notes that the Complaint does not address those other safety issues, but
the Complaint need not be a compendium of all the safety related concerns
associated with it; rather it represents the core charges. There is no bar to a
complainant amplifying the background and context for those core allegations,
as Smitherman did in his testimony on direct. Thus, the complaint represents
the basic claims and does not foreclose admission of additional relevant
information in support of it. Further, the Court notes that its decision in
this matter does not rest heavily on Smitherman’s alleged prior safety
complaints, and that it stated as much during the hearing itself. Vol. 1, Tr.
245-246.

Returning
to the dust bag dispute of February 2, 2021, Smitherman agreed with
Respondent’s counsel that not all roof bolting machines are required to have
dust bags; asserting that primarily the newer ones are so equipped. Vol. 1, Tr.
247-248. He also agreed that after raising the dust bag issue, more dust bags
were provided on the next shift and he was never disciplined for bringing up the
issue. Vol. 1, Tr. 252. The Complainant also agreed that Derrick Wade, another
roof bolter working with Smitherman that day, also had an issue with the lack
of dust bags, and was not disciplined for complaining about the dust bag issue either.
Vol. 1, Tr. 253.

However,
the Court would note that, cumulatively, Smitherman’s repeated safety-related
complaints, placed in the context of the events that led to his suspension and
subsequent termination, cannot be ignored. Considering the testimony
surrounding those events, and the Court’s evaluation of the witnesses’
credibility in their recounting of those events, it is hard to dismiss those
prior instances as merely disconnected events which played no role in
Smitherman’s firing.

Turning
to the ventilation issue on the owl shift which began on February 28, 2021, and
continued through the next morning, March 1, Smitherman agreed that bolters
Banks and Volts were bolting without proper ventilation on those dates, and
that Smitherman told them they should not be bolting under those conditions and
that they should approach Salyers in order to have the proper ventilation installed.
Vol. 1, Tr. 254-255. Smitherman agreed that he had no evidence that Salyers
knew that the bolters were bolting without proper ventilation and he
acknowledged that the ventilation issue was corrected during the shift when the
issue was raised. Vol. 1, Tr. 255, 258.

Respondent’s
counsel, revisiting the March 1-2 owl shift, at which time the events leading
to the Complainant’s suspension, and later his termination, occurred,
Smitherman agreed that before the beginning of the shift, he told Salyers that he
wanted to be transferred to the other side of the mine. Smitherman again stated
that he told Salyers he wanted to be transferred because of the events of the
prior night. Vol. 1, Tr. 261-262, 298. Though Salyers himself testified that he
did not know why Smitherman wanted to be transferred, when Respondent’s counsel
attempted to suggest Salyers may not have known because Smitherman did not
specify why he wanted the transfer, Smitherman flatly rejected the claimed
ignorance, responding, “Yes, [Salyers] knew. There wasn’t any other incident
happened the night before . . .” Vol. 1, Tr. 262.

Given
the proximity in time to the ventilation issue, the Court finds that Salyers’
claim defies common sense, especially when viewed in the context of the history
of conflicts between the two. Clearly, Salyers would have known why Smitherman
wanted the transfer and the Court commented to that effect during the hearing. Vol.
1, Tr. 265-266.

Regarding
whether he was earnestly performing the work assigned that day, Smitherman
stated that after lunch he did not see Salyers again until the incident, referring
to their confrontation in the supply hole. Smitherman added that Salyers
“didn’t give me time to tell him what went on. He just started yelling and –
and talking about other stuff.” Vol. 1, Tr. 270. Smitherman informed that the
need to unload the car supply and the belt crew activity prevented him from
bringing supplies up. Vol. 1, Tr. 271. He did admit to taking a break around 6
a.m. that day, and that he did not seek Salyers’ permission to do that, nor did
he tell him that he needed a break. Vol. 1, Tr. 273. Subsequently, on redirect,
Counsel for the Secretary asked if it would have been
reasonable for him to ask Salyers for a break, to which the Complainant
explained that it would have taken him a long time just to find Salyers, and
that it was not common practice to seek out the supervisor for permission to
take a break. Vol. 1, Tr. 301. At least in this context the Court agrees that
seeking such prior approval would have been impracticable, especially given
that it was very near the end of the shift.

Despite
much questioning over exactly what Smitherman did during the shift when he was
assigned to the Lo-Trac, Smitherman responded, convincingly in the Court’s
estimation, to those questions. In one such exchange, Smitherman responded that
Salyers “knew he told me to go load the roof bolter, and he knew that I had
unloaded the supply car, and he knew that I had went to look for pipe. So he
knew I had five and a half hours to do all of those things.” Vol. 1, Tr. 281.
When asked if he had moved the pipe by 6 a.m., Smitherman responded,
consistently with his prior testimony during the hearing, that he had not
accomplished that, “because [he] had never found the pipe [Salyers] asked for.”
Id. As another example, when Respondent’s counsel asked the Complainant if
Salyers expressed surprise that he had only moved two pallets in eight hours,
Smitherman answered that Salyers’ claim “was nonsense because he told me to do
all of those other things.” Vol. 1, Tr. 282.

Respondent’s
counsel then referred to Smitherman’s Record of Disciplinary Action, [15] which, at
least by the Respondent’s account, played an important role in his termination.
Vol. 1, Tr. 288, Ex. P 4. Within that exhibit, Respondent’s counsel drew attention
to the alleged violation of Work Rule 1, which he summarized as “prohibit[ing]
wasting time and loafing” and “unacceptable work performance.” Complainant
agreed with this characterization. Vol. 1, Tr. 288-289. Additionally noted by
Respondent’s counsel, the Complainant’s disciplinary record also cites
Smitherman as having violated Work Rule 5, which Respondent’s counsel
characterized as “prohibit[ing] sleeping on the premises.” Complainant agreed
with this characterization too, though those words are nowhere in the exhibit. Vol.
1, Tr. 289, Ex. P 4.

The
fundamental problem with citing to those work rules – sleeping and loafing – is
that before applying them the Court must find that those prohibited
behaviors occurred in the matters at hand. The Court does not find that the
credible evidence supports a finding that any of those prohibited behaviors
occurred in this instance.

Although
Smitherman agreed that Salyers did not make the decision to terminate him, he
made the salient observation that “[Salyers] recommended it.” Vol. 1, Tr. 289. And
while Counsel for the Respondent then asserted that “[s]o someone else made an
independent judgment to terminate [Complainant’s] employment,” Smitherman
agreed that the actual decision to terminate was made by Chris Thielen, but he added,
significantly in the Court’s view, that it was “[b]ased off of what [Salyers] said.”
Vol. 1, Tr. 289-290. The Court, in consideration of the entirety of the record,
finds that the Complainant’s point is well-taken and the fact.

Testimony of Thomas O’Donnell, MSHA Special Investigator
and MSHA Conference Litigation Representative

The Secretary called Thomas
O’Donnell, MSHA employee since 2005 and conference litigation representative
since 2012, to the stand. Tr 311,315. O’Donnell investigated Smitherman’s
discrimination complaint. Tr. 325. He confirmed that the Number 4 Mine is a
gassy mine, and that the mine has been on a five-day spot inspection at least since
he was hired with MSHA. Tr 322-323. It is a matter of great significance for a
mine to be designated for such inspection frequency. The Mine Act speaks to
this, providing, pursuant to Mine Act section 103(i), that there is to be a spot
inspection every five days for mines liberating for excessive quantities of
methane of more than one million cubic feet of methane or other explosive gases
during a 24-hour period.

In conducting his investigation, O’Donnell interviewed Smitherman, Salyers, Volts, Banks,
Koots, Walls, and Sterling; he attempted to interview Earnest but ran out of
time. Vol. 1, Tr. 330. However, of the interviewees , only Smitherman was able to review O’Donnell’s memorandum
of the interview, comment upon it, and vouch for its accuracy. Vol. 2, Tr. 12. As
such, with the other interviewees not afforded the opportunity to review the
memorandum O’Donnell created of their respective interviews, it would be
fundamentally unfair for the Court to consider those unreviewed interviews.

Accordingly, in making its determinations
in this matter, the Court has not considered any of the testimony presented by special investigator O’Donnell as it pertains to his
remarks regarding the information he ostensibly obtained in his interviews of
Volts, Banks, Walls, Sterling, or Koots, nor has it considered the statements
themselves. This determination does not infer that the statements obtained by
Investigator O’Donnell, were manipulated or otherwise inaccurate recountings of
his interviews . Rather, the determination is simply
that it would be inconsistent with fundamental fairness to consider them, given
the lack of an opportunity for those individuals to have reviewed them. Instead,
in making its decision in this matter, the Court relies upon the firsthand
testimony of the principal actors: Smitherman, Salyers, Sterling, and Thielen.

Subsequent
Testimony of Zachary Salyers

Respondent’s counsel re called Mr. Salyers for direct examination. Initially, it
will be remembered, Salyers was called by the Secretary and denominated as an
adverse witness. Salyers revisited his dispute with Smitherman about the
necessity of using dust bags on the roof bolter. Vol. 2, Tr. 130. The Court finds that whether Salyers or Smitherman was correct
in their view about dust bags is not important, but rather that the encounter
goes toward establishing that Smitherman and Salyers had a history of clashing
about safety issues. It was from this history of conflict, and the testimony of
the two, that the Court concluded that Salyers viewed Smitherman as a thorn,
giving rise to animus towards him.

On the February 28-March 1 owl
shift, Salyers admitted
that Banks and Volts were in the dinner hole after
Salyers “came back from the return ,” and that at that time Banks and Volts informed him that they needed to get the fly
pads up in the slant. Vol. 2, Tr. 137-138.

Asked about the following
shift, March 1-2, Salyers recounted that Smitherman told him he did not want to
work for him and wanted to be transferred. Vol. 2, Tr. 140-141. Salyers claimed
Smitherman said nothing about safety, fly pads, ventilation, or dust bags
during that exchange and that he did not get upset with Smitherman then either.
Vol. 2, Tr. 141.
Instead, Salyers told Smitherman he would speak with
the shift foreman, Earnest, about the matter. When asked if he had “any notion
at all why Juan [Smitherman] wanted to be moved?” he answered “No.” Vol. 2, Tr.

142. Given the testimony from Smitherman and Salyers as a whole, the
     Court does not find Salyers’ assertion to be credible.

In furtherance of the claim that the
Complainant was loafing, Salyers characterized the work assignments he gave
Smitherman as much less burdensome than Smitherman’s recounting. Salyers added
that the distance one would have to travel using the Lo-Trac to get supplies
was only five crosscuts, or 1500 feet, and doing so would only involve a
15-minute roundtrip and that during a shift, a Lo-Trac operator will move about
9 to 11 loads. Vol. 2, Tr. 146-147. Salyers also characterized using the
Lo-Trac as “definitely the easiest job on the – as far as section work goes.” Vol.
2, Tr. 148.

If Salyers’ version were accepted by the
Court, it would be reasonable to conclude that the Complainant had a light
workday. However, when asked for an accounting of the times he “interacted”
with Smitherman, Salyers gave only the following: “Once at arrival, once at his
dinner break, and once at 6:00 to 6:30, and then again as we were getting on
the man trips [to leave for the surface].” Vol. 2, Tr. 154.

A similar conflict in their recounting of
events was presented with Salyers’ assertion that he found Smitherman asleep
within an hour of the end of the shift. Salyers stated that, when coming upon
him, he asked him “why he hadn’t got anything accomplished that night.” Vol. 2,
Tr.158. Salyers’ accounting was that Smitherman response to him was “I told you
I didn’t want to work for you.” Vol. 2, Tr. 158. Such irreconcilable versions
required the Court to make another credibility determination. In that regard,
it finds it highly unlikely that Smitherman would respond to his supervisor
with an answer that would effectively be an admission that he had not done the
work assigned that day. Smitherman was already aware that such a response would
result in his termination because of his prior suspension. Accordingly, the
Court finds the Complainant’s version to be more credible as it is highly
improbable that the Complainant would make such a harmful admission to Salyers
of all people. Further, Salyers’ remark that during that same exchange
Smitherman told him he “was having trouble passing a spot on the track and that
he had to put a crib under it,” is incongruous with the supervisor’s retelling
of the event. Simply put, Salyers’ remark that Smitherman
told him he “was having trouble passing a spot on the track and that he had to
put a crib under it,” does not fit with his claim that the Complainant
asserted he did not want to work for him. Vol. 2, Tr. 159.

Salyers stated that, following
that event, which he dubbed a “conversation,” he then phoned Pete Richardson, informing
that he “had just found Juan [Smitherman] asleep in the Lo-Trac and asked if
[Richardson] could stay outside to handle it.” Vol. 2, Tr. 162. Richardson was
otherwise occupied and advised Salyers that “Jason Lee would handle the
matter.” Vol. 2, Tr. 162-163.

When asked by
Respondent’s counsel “by the end of the shift, how much of what you had
assigned [Smitherman] that night had he accomplished?” Salyers answered
“Nothing.” Vol. 2, Tr. 163. He then repeated the word, “Nothing.” Id. The
Court, surprised at Salyers’ assertion, then asked “[b]y the end of the shift,
[Smitherman] had accomplished nothing?” Salyers then qualified his response,
stating “Nothing that I had asked him at the beginning of the shift to do, no.”
Vol. 2, Tr. 163-164. This was a distinctly different answer from his twice-repeated
claim a moment earlier.

When the shift concluded
and Salyers was on the surface, either Richardson or Lee flagged him and told
him that they needed to meet in Sterling’s office. Vol. 2, Tr. 165. At that
meeting, they asked Salyers what had happened, and then he was directed to give
a written statement about it. Vol. 2, Tr. 165. Salyers stated that he was not
present for any interviews conducted by Sterling or Thielen.

Salyers agreed that his
written statement and his oral statement combined were the basis for the
decision to suspend Smitherman. Vol. 2, Tr. 171. Again, Salyers denied that Smitherman
told him that he didn’t want to work for him because of the previous night’s
events. Yet, Salyers again admitted that he did not ask the Complainant why he
didn’t want to work on his section anymore. Vol. 2, Tr. 172.

Testimony of Sherry
Sterling, Human Resources Manager

Respondent then
called Sherry Sterling, Human Resources Manager at Warrior Met Coal, Mine
Number 4. Vol. 2, Tr. 176. Her duties include overseeing
disciplinary investigations.  She described the termination process as follows: “ After the investigation is complete and
the company decides that they want to move forward with a termination, we will
suspend the employee with intent to discharge.” Vol. 2, Tr. 179. Following
that, the UMWA “would contact us to let us know whether they want to have a 24-
or 48-hour meeting, which is a meeting between the union, that employee that's
being disciplined, and the mine manager, and myself. And from there, the mine
manager makes the determination, whether he wants to retain that employee or
whether he wants to uphold the discharge.” Vol. 2, Tr. 179-180.

Sterling agreed that the
investigation is “something that falls within [her] purview of responsibility,”
however she informed that Chris Thielen, the mine’s manager, is the ultimate
decisionmaker when it comes to discharge. Vol. 2, Tr. 180, 184. Sterling testified
that she does not take written statements in all instances, nor does she
“normally issue any kind of report to either the person who raised the concern
or the person about whom the concern is raised.” She agreed that conflicting
accounts about events occur frequently. Vol. 2, Tr. 182. To resolve such
conflicts, Sterling stated “we follow where the evidence takes us. And we have
to decide who is the more credible witness. And that’s – that’s not easy, but .
. . It is – it is part of my job.” Vol. 2, Tr. 182-183.

Referencing Warrior Met’s
work rules 1 and 5, Ex. R18, Sterling confirmed that other employees have been
fired for violating those rules. Vol. 2, Tr. 187.

On the morning of the
incident at issue Thielen told Sterling that Salyers “was bringing someone from
underground for sleeping ,” telling her to speak to Salyers and to the
employee because Thielen had to go underground. Vol. 2, Tr. 188 (emphasis added).

Sterling first spoke with
Complainant Smitherman, who told her he did not know why he had been brought
out. Smitherman, Sterling testified, also told her that “he did not like
working for Zach [Salyers], and he didn’t like the way Zach operates, and he
wanted to be removed from this section.” Id .
Asked if Smitherman told her that he had reported safety concerns to
Salyers, she responded “No, not that day, he did not to me.” Id . As to
whether Smitherman said anything about ventilation issues or fly pads, Sterling
responded in a like fashion, “No, not that I can recall. Not that day.” Vol. 2,
Tr. 188-189. At the meeting with her, Smitherman said that “he was not
sleeping. He said that that was untrue.” Vol. 2, Tr. 189. Sterling stated that,
when asked, Smitherman did admit that he did not complete the work that night. Vol.
2, Tr. 189.

Beyond those statements, Sterling
testified to not recalling anything else the Complainant said in that meeting,
“not anything that stands out. I mean, we didn’t speak for a long time.” Vol.
2, Tr. 189. The Court finds this information-gathering process at odds with the
professed goal of conducting a neutral investigation. Sterling did not believe
a written statement from Smitherman was needed, because his version of events
“was simple. He said, no, he wasn’t sleeping; no, he didn’t complete the
assignments that Zach gave him.” Vol. 2, Tr. 190. The Court notes with dismay
that Sterling apparently felt no need for elaboration or further questions.

After the meeting with
Smitherman, Sterling met with Salyers. Salyers, in Sterling’s recollection,
“told me that he walked up on Juan, and Juan was slumped over with his lights
off, and he was asleep, and that he didn’t complete the assignments that he had
given him.” Vol. 2, Tr. 189-190. Sterling recounted that Smitherman was then
suspended, pending the investigation, allowing the mine “to investigate what
happened.” Vol. 2, Tr. 192.

Sterling agreed that sometime
after their initial meeting, Smitherman telephoned her. Vol. 2, Tr. 192. It was
during that conversation, Sterling recalled, that Smitherman told her that
Salyers “had been letting people cut without curtains, and he [Smitherman] had
an issue with that. And that he was being unsafe.” Id. However,
Sterling, the investigator, could not remember “if [the call] was that day or
the next day. He called me and we had a conversation about that.” Vol. 2, Tr.
192-193.

Sterling recalled that in
their in-person meeting on March 2, Smitherman mentioned Chris Walls and Wesley
Koots “came by.” Vol. 2, Tr. 193. Sterling does not explicitly state what she
understood that remark to mean but, in context and given that it came from
Smitherman, it is apparent that he meant the two men “came by” and saw him
working. For that reason, Sterling explained that “[w]e” spoke with those two
men and with people on the crew, and particularly with Banks about the
ventilation issue Smitherman raised with her. Id . Walls and Koots both
said they did not see Smitherman working or sleeping that night – that they
did not see him at all that night. Id . Walls also stated that he did not
give Smitherman an assignment that night. Id . Thus, significantly in the
Court’s estimation, it is again noted that the only person Sterling identified
in her investigation who claimed Smitherman was sleeping was Salyers. Vol. 2, Tr.
194.

Sterling acknowledged
that Banks informed her that he had been cutting without a curtain and that
Smitherman confronted him about the issue. [16]
Banks reportedly told her that Salyers had no knowledge of it. Vol. 2, Tr. 196.
Thielen also spoke to Banks about safety and had him written up, with the
write-up entered into Banks’ file. Vol. 2, Tr. 196-197. Thus, the upshot of
curtain issue was that discipline was meted out, but only to the roof bolter,
not to Salyers.

As part of her ‘investigation,’
a term the Court believes is a stretch to use in this matter, Sterling revealed
that she “pulled [Smitherman’s] file from my office to look through his previous
disciplinary actions, to see if there was anything in there.” Vol. 2, Tr. 197.
This, it seems to the Court, was nothing more than a plain attempt to dig up
dirt regarding the Complainant, and cannot be construed as any part of an
objective investigation. That search bore fruit, as Sterling found Smitherman’s
2018 citation for sleeping. Id. Sterling testified that this past
infraction “was a big factor” in her analysis “because it said any further
infractions of any kind – which means it could be big or small. Whatever it is
could result in immediate discharge.” Vol. 2, Tr. 198. Though Sterling stated
that she spoke to other miners, aside from Volts, she could not recall their
names – and none had anything negative to say about Salyers’ safety practices. Vol.
2, Tr. 201-202. She claimed her inability to recall their names stemmed from
the conversations occurring “so long ago.” Vol. 2, Tr. 202. The Court does not
share Ms. Sterling’s view that it was “so long ago,” and further, such a vague
recounting strikes the Court as inconsistent with her evidence gathering role. Sterling
claimed that she had no idea of a safety grievance, save the curtain issue
Smitherman raised with her after his suspension, until the day before
Smitherman’s arbitration when the union contacted them. Vol. 2, Tr. 202-203.

When asked during
cross-examination how she knew Salyers claimed Smitherman was sleeping, when
she met with Smitherman before meeting with Salyers, Sterling responded that
she knew this information from the mine manager, “because [he] told me to go
over there because [Salyers] was bringing someone from underground that he had
caught sleeping.” Vol. 2, Tr. 204.

The Court finds a pattern
in Sterling’s testimony of not recalling important facts relating to the
conduct of her investigation. The Court further observes Sterling’s tendency to
avoid probing further in the investigation for additional details. When asked
about Smitherman telling her that he did not like working for Salyers, and
whether she followed up by asking Smitherman why he had that view, Sterling
responded only, “I think I did ask him why.” She recounted that Smitherman
“said he didn’t like the way that [Salyers] operates.” Vol. 2, Tr. 213. A
natural follow-up, the Secretary’s counsel then asked, “Did you ask him what he
meant by that?” To which Sterling answered she could not “remember if [she]
asked him that.” Id . Surprised, counsel for the Secretary then asked,
“You can’t remember if you asked him what he meant by he didn’t like the way [Salyers]
[17] operated?” Sterling
answered, “No, ma’am. I can't speculate because I just don't remember if I
asked him that or not.” [18]
Id.

And there is more
demonstrating the inadequacies of Sterling’s ‘investigation,’ as reflected with
these exchanges:

The Secretary, asking
Sterling if Jason Lee, in the meeting with Smitherman, asked him why he did not
like the way Salyers operated, Sterling answered, “I don't remember.” Vol. 2, Tr.

214. And then , asked if she remembered
     “whether or not Mr. Lee asked [the Complainant] why he did not want to work for
     Zach [Salyers],” again, she answered “I don’t remember.” Id .  This lack
     of recall persisted; when Sterling was asked, in speaking with Salyers, if she
     recalled “whether or not [she] asked [Salyers] if he knew why [the Complainant]
     might want to be removed from his shift, from his section,” again her answer
     was “I don't remember.” Vol. 2, Tr. 215. Nor, Sterling admitted, after she
     completed her ‘investigation,’ did she have any follow-up questions for either
     Salyers or the Complainant. Vol. 2, Tr. 216.

Sterling also admitted
that while she stated that both the Complainant and Salyers told her that not all
of the work assigned to the Complainant had been completed, she had “ no idea ”
what that meant, as she agreed that it could have been 10 percent or 50 percent
that wasn’t done. Vol. 2, Tr. 223 (emphasis added).

It is of note that although
Sterling asserted that Warrior Met does not permit employees to take
unauthorized breaks, she was unable to articulate what constitutes Warrior
Met’s definition of an “unauthorized break,” offering only the tautology that
it is break that your supervisor did not authorize. Vol. 2, Tr. 228. Inconsistently,
Sterling stated that the company would not consider it a violation of that company
policy if a miner stopped for water or used the restroom, though without a supervisor’s
permission. Id . Although it was her understanding that a miner seeking a
break following strenuous activity should ask their supervisor for permission,
she could not point to any company policy addressing that issue or specifying
precisely what sort of break requires explicit supervisor permission, other
than the Collective Bargaining Agreement that grants a 30-minute break. Vol. 2,
Tr. 231-232.

That Sterling’s
investigation was one-sided and superficial is demonstrated by this exchange
with the Secretary’s Counsel: “Would you agree that the statement of – that the
report from Zach Salyers was what led to everything that we’re here about
today?” Sterling’s answer was “[h]is written and his verbal statement, yes, ma’am.”
Vol. 2, Tr. 233-234.

Sterling, in response to
questions from the Court, stated that before she went to meet with Mr. Thielen,
the mine manager, she had not formed an opinion as to which version,
Salyers or the Complainant’s version, was more credible. Vol. 2, Tr. 240. However,
she then modified that response, stating that “it was not until after I spoke
with Chris Walls and Wesley Koots that I determined which version was
credible.” Vol. 2, Tr. 243. It should be noted that her view from speaking with
the two miners related only to the sleeping allegation. Vol. 2, Tr. 244. Yet, neither
Walls nor Koots asserted seeing Smitherman sleeping ;
rather their remarks to Sterling pertained to Smitherman’s claim that Walls had
given him an assignment, with Walls stating that was not true. Although the
Complainant stated to Sterling that both Walls and Koots came by and saw him
working, Walls and Koots, the latter an hourly employee, both said that that
was not true. Vol. 2, Tr. 244. The Court notes that neither Walls nor Koots
testified at the hearing and that Sterling did not present a statement from
either one. Neither one asserted seeing Smitherman sleeping either. Vol. 2, Tr.

246. Again, in the Court’s view, it is revealing that the only statement
     Sterling took was from Salyers.

In trying to determine
the bases for Sterling’s determination, the Court asked what she was “left with
that led [her] to conclude that Mr. Salyers' version was more credible than Mr.
Smitherman's version?” Her answer was damning and revealed her lack of
objectivity, stating: “[ Salyers ] is a supervisor . We have to
have faith in the supervisors that we hire . … I didn't find anything that
[Salyers] said was untrue.” Vol. 2, Tr. 249-250 (emphasis added). Sterling
concluded her remark on this issue by stating that her determination was based
on the sleeping issue and the issue of “whether Smitherman was being
insubordinate by not completing his work tasks. It was two separate
situations.” Vol. 2, Tr. 250. The Court finds that Sterling’s conclusion was
clearly a predetermined result.

Testimony of Chris Thielen, Manager of the
Number 4 Mine

Chris Thielen, manager of
the mine, testified as the final witness for the Respondent. Respondent’s
counsel drew his attention to a time study, dated February 5, 2021, conducted
by Warrior Met on 4 Section from February 1-4, 2021. Vol. 2, Tr. 265, Ex. R30. Thielen
was questioned about the time study; though he denied it as being used directly
against Smitherman or any miner in particular ,
the time study findings were critical of the right side bolter crew on owl
shift, claiming a “lack of urgency or motivation on the right side bolter crew
on owl shift.” Vol. 2, Tr. 267. Thielen described the purpose of the time study
as to “ensure [that] the foreman is informing [the] crew of standards and
expectations on a section.” Vol. 2, Tr. 270-271. When asked, Thielen affirmed
that he assumed Salyers would have seen the time study. Vol. 2, Tr. 296, Ex. R 30.
Thus, it is obvious that Salyers knew at least about the results of the time
study and that it did not reflect well upon him.

The Court notes further that
the summary sheet on the time study, lists as one of the “observed
deficiencies,” that “[o]n owl shift 2/2, right side bolters refused to bolt due
to lack of dust bags for bolter on section.” Ex. R30. Furthermore, the time
study summary sheet specifies, as the remedial action to remedy the observed
deficiency of the “lack of urgency/motivation displayed by right side bolter
crew on Owl shift,” to “[e]nsure that the foreman is informing bolt crew of
performance standards on section.” Ex. R 30. The time study summary sheet,
which is in e-mail format, is addressed to Chris Thielen, Jason Lee, and Pete
Richardson, among others. Ex. R30.

Salyers under
cross-examination, supra , flatly denied ever receiving information or
statistics about production on his section. Vol. 1, Tr.

90. The Court finds this claim not credible, as the time study summary, sent to
    Salyers’ direct supervisor Pete Richardson, directs that foremen be made aware
    of the owl shift right side bolter crew’s “lack of urgency/motivation” and refusal
    to bolt due to lack of dust bags, and to take remedial action. Ex. R 30.

Regarding the
investigation, Thielen testified that at first he delegated the issue to Jason
Lee. Vol. 2, Tr. 271. Later, with Sterling, he spoke with Chris Walls,
electrician Wesley Koots, and Jonathan Banks. Vol. 2, Tr. 274, 275. Thielen
corroborated that Banks and the other bolter were bolting without proper
ventilation. Vol. 2, Tr. 275. Banks was reprimanded for this but, the Court
would again note, not Salyers. Vol. 2, Tr. 274.

With respect to
the issue of Smitherman’s work on the day which led to his suspension and
subsequent termination, Thielen recalled that Volts saw or thought they saw Smitherman
on a Lo-Trac. Vol. 2, Tr. 275-276, 294-295. He later stated that Koots and
Walls told him that they “could see the Lo-Trac operating.” Vol. 2, Tr. 280.
Asked to clarify, Thielen affirmed that Koots and Walls both said they saw
someone on the Lo-Trac – that is, they saw lights, but could not see who was
operating the Lo-Trac. Vol. 2, Tr. 295. The Court would note that there was no
testimony during the hearing that anyone other than Smitherman operated the
Lo-Trac on that day. Thus, at least to that extent, Koots’ and Walls’
statements did not advance Salyers’ claim that Mr. Smitherman did nothing on
the day in issue.

Thielen
stated that, in assessing the issue, he looked at Salyers’ statement and Smitherman’s
record. From the latter, he deemed the “most important” aspect to be the
write-up for Smitherman’s prior sleeping incident. Tr. 276. Noting that any
further infraction or violation would mean Smitherman’s discharge, he concluded
Smitherman was “engaged in unsatisfactory work performance. He was found not
attempting to complete the tasks that he was assigned to do. His Lo-Trac was
off, and he was slumped over or asleep in his Lo-Trac.” Vol. 2, Tr. 277-278.

Under
cross-examination, Thielen stated what amounted to, in the Court’s view, a  fall-back
position: whether Smitherman asleep or not, when Salyers approached him, he was
“not attempting to complete the tasks he was assigned to do.” Vol. 2, Tr. 281. An
indication that he was not about making an objective determination of the
facts, Thielen admitted that he did not speak with Smitherman until the union
meeting. Vol. 2, Tr. 281 and Tr. 289-290. In fact, Thielen did not even ask
Smitherman if he was sleeping. Only Sterling asked Smitherman about that. Vol.
2, Tr. 282.

Thus, by his testimony, Thielen came to the conclusion
that Smitherman had been asleep, but with that conclusion being based on
Sterling’s view and Salyers’ statement. Vol. 2, Tr. 285. As Sterling was never
underground at the time of the alleged incident, it should not be lost that the
information distills into but one statement – that of Salyers, alone, with Thielen
giving weight to Smitherman’s prior sleeping incident. Thielen also admitted
that, regarding the separate issue of the work accomplished by Smitherman on
the day in issue, he never spoke with Smitherman to consider his account of
what work he completed that night, relying instead upon Sterling’s recounting. Vol.
2, Tr. 289. When asked by Respondent’s counsel “So everything that you have
about what Mr. Smitherman said comes from what Sherry told you; is that right?”
Thielen responded, “And Zach [Salyers]. Yes.” Vol. 2, Tr. 294. The Court would
note that Thielen’s remarkable admission was of the same order as Sterling’s –
both individuals had a predetermined conclusion about the matter.

II.            
Additional Analysis and Discussion

Section 105(c)(1) of the
Mine Act provides:

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 chapter
because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to this chapter, 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 811 of this
title 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 chapter 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 chapter.

30 U.S.C. § 815(c)(1).

It is noted that Congress adopted the Mine Act “to protect the
health and safety of the Nation’s coal or other miners.” Thunder Basin Coal
Co. v. Reich , 510 U.S. 200, 202 (1994). Further, as noted in the
legislative history for that Act, Congress intended for Section 105(c) “to be
construed expansively to assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation. This section is intended to
give miners, their representatives, and applicants, the right to refuse to work
in conditions they believe to be unsafe or unhealthful and to refuse to comply
if their employers order them to violate a safety and health standard
promulgated under the law.” S. REP. No. 95-181, 36 (1977).

Decisional Law in Discrimination Matters
under the Mine Act

For over forty years the Commission
decisions of Sec’y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786,
2799 (Oct. 1980), and Sec’y on behalf of Robinette v. United Castle Coal Co. ,
3 FMSHRC 805, 817-18 (Apr. 1981) have been the touchstone for evaluating
discrimination claims under the Mine Act. Under those decisions, the standard
for making a prima facie case of discrimination under Section 105(c)(1) of the
Mine Act, has been expressed as follows:

Under  Pasula-Robinette , a miner alleging
discrimination under the Act 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.  Pasula,
2  FMSHRC at 2799;  Robinette , 3 FMSHRC at 817-18. 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.  Robinette , 3 FMSHRC at 818 n.20. If the
operator cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by
proving that the adverse action also was motivated by the miner's unprotected
activity and the operator would have taken the adverse action against the miner
for the unprotected activity alone.  Id.  at
817-18;  Pasula , 2 FMSHRC at 2799;  se e also Eastern Assoc. Coal Corp. v. FMSHRC , 813 F.2d 639,
642 (4th Cir. 1987).

Sec. obo Riordan v Knox Creek Coal, 38
FMSHRC 1914, 1919 (Aug. 2016). See, also, Thomas v CalPortland Co., 42
FMSHRC 43 (Jan. 2020).

Recently, the Court of Appeals for the Ninth Circuit
took issue with the Pasula-Robinette
framework,
holding that, because the language of Section 105 (c) of the Mine Act provides,
in relevant part that “[n]o person shall discharge or in any manner discriminate
against … the exercise of the statutory rights of any miner … in any coal or
other mine subject to this chapter because such miner … has filed or made a complaint
under or related to this chapter,” that language “requires a miner asserting a
discrimination claim under Section 105(c) to prove but-for causation.” Thomas v. Calportland , 993 F.3d 1204,
1209-1211, (April 14, 2021) (emphasis added).

Because the Warrior Met mine in this matter is
located in Alabama, and therefore outside of the states within the purview of
the Ninth Circuit, its decision is not binding on the Commission. However, for
the reasons articulated in this decision, the Court, separately applying both
the Pasula-Robinette
test and the Ninth Circuit’s but for test, finds that Mr.
Smitherman meets both tests.

Accordingly, as set forth in the findings of
fact, Juan Smitherman engaged in protected activity by raising safety concerns;
he suffered adverse action as was terminated because of that activity, and the
Respondent failed to rebut the established prima facie case. Further, because
the Court rejected the asserted affirmative defense that the Complainant was
sleeping and/or loafing, finding that neither was established by credible
evidence, no unprotected activity was proven.

Additionally, to be plain, applying the
stricter standard set forth in CalPortland, the
Court separately finds that Respondent Warrior Met would not have terminated
Juan Smitherman’s employment but for his invoking his protected activity
under the Mine Act and to put it differently, Warrior Met’s action in
terminating would not have occurred but for Complainant Smitherman’s
protected activity of raising safety concerns and that the putative reasons
advanced by the Respondent mine were little more than a ruse, as neither the
claim that the Complainant was sleeping, nor that he was loafing, was credibly
established. [19]

III Summary Remarks

As
set forth above, Complainant Juan Smitherman established a prima
facie case.   He engaged in protected activity, primarily by raising the safety
complaint about insufficient ventilation on the February 28-March 1 owl shift. This
issue made up the core of Smitherman’s complaint, but he also testified to a
series of other safety disputes he had with section foreman Salyers, such as
the early February 2021 dispute about bolting without dust bags. Though it is
true that Smitherman did not include every safety issue he raised with Salyers
in his complaint, that is not a prerequisite to receiving testimony about such
issues, as the Complaint represents the broad outline of its basis. [20] Further,
the Court’s decision is based on the core charges. Those core charges were
established and by themselves were sufficient to find for the Complainant. While
the other safety issues were part of the record, they were not determinative of
the outcome, but they did provide useful context for the two days directly
involved in the Complainant’s termination. Sec’y of Labor, MSHA v. Hopkins Cty
Coal, LLC ,
38 FMSHRC 1317, 1323 n. 9 (June 2016).

Obviously, by his
suspension and termination, Mr. Smitherman suffered adverse action. Further, as
described above, the Court rejects the claim that Salyers was oblivious to the
core protected activity involving the fly pads and that Smitherman was the source
behind it. Salyers and Smitherman had a history together and certainly the
former, as the Complainant’s supervisor, was able to put two and two together.

As set forth
above, in multiple ways, and founded upon the Court’s credibility determinations,
Salyers demonstrated his hostility towards the Complainant’s protected activity.
Regarding the core events, assigning Mr. Smitherman, though the senior roof
bolter, to run the Lo-Trac was itself indicative of such hostility. That, in
the course of the same day as that assignment, Salyers would find that
Smitherman was both loafing, not doing work and sleeping is telling. Such
events meet, writ large , the adverse action ‘close in time’
consideration. [21]

The Respondent’s attempted rebuttal, as discussed above, asserting
that its suspension and termination of the Complainant were not motivated by
protected activity have been rejected by the Court as pretextual. A
pretext may be found where Respondent’s justification is “weak, implausible, or
out of line with the operator’s normal business practices.” Sec’y on behalf
of Price v. Jim Walter Res., Inc ., 12 FMSHRC 1521, 1534 (Aug
1990). Furthermore, cursory, superficial investigation into alleged
employee behavior undermines the credibility of the investigation. Con-Ag,
Inc. v. Sec’y of Lab., 897 F.3d 693, 704 (6th Cir. 2018). Warrior Met’s
investigation was not only superficial and cursory, but also biased. [22] Sterling
took a written statement from Salyers, but not from Smitherman. She asked few
follow-up questions when meeting with Smitherman, appearing uninterested in
understanding his side of the story.  When Smitherman called Sterling to inform
her of his safety concerns with Salyers, Sterling and Thielen’s response was to
conduct casual, informal, superficial questioning of miners on Smitherman’s
section. At the hearing Sterling frequently admitted to not recalling basic
facts about her investigation process, which either indicates an investigation
done carelessly or an attempt to obfuscate the facts. The investigation was
biased in that Sterling and Thielen, upon realizing there were no other
witnesses to the supply hole confrontation other than Salyers and Smitherman
themselves, opted to believe Salyers because he is a supervisor. Vol. 2, Tr.
249-250

In a real sense, Thielen and Sterling could not quite get their
dance duet together as to whether it was insubordination or sleeping that was
the basis for Mr. Smitherman’s termination. [23] For that matter, Salyers’ himself
was inconsistent as to which claim applied.

Last, as also discussed above, the Court finds that the
Complainant’s protected activity was the genesis for his termination. Put in
the parlance of the Ninth Circuit, but for Mr. Smitherman’s protected
activity, he would not have been terminated

CONCLUSION AND ORDER

Based on the foregoing, the
Court finds that the Respondent violated Section 105(c) of the Act by
discriminating against Complainant Juan Smitherman for engaging in protected
activity. Respondent is hereby ORDERED to reinstate Juan Smitherman to his former position with Warrior Met
Coal with the same pay and benefits as he would have accrued had he remained
employed. The mine shall remove from J uan Smitherman’s
personnel file all mention of any employment action stemming from this
incident.

Other Terms of Relief

Counsels are Ordered to confer during
the next fifteen (15) days in order to determine if there can be agreement as
to the terms of relief for Complainant Juan Smitherman and to notify the Court
as to the results of these discussions. Section 105(c)(3) of the Act provides,
in pertinent part: Whenever an order is issued sustaining the complainant’s
charges under this subsection, a sum equal to the aggregate amount of all costs
and expenses (including attorney’s fees) as determined by the Commission to
have been reasonably incurred by the miner … for, or in connection with, the
institution and prosecution of such proceedings shall be assessed against the
person committing such violation.”

Counsels are Further Ordered at that time to
state their specific areas of disagreement, if any, and if they believe that a
further hearing may be required on the remedial aspects of this matter, to so
state that, identifying the grounds for their positions. [24]

Typically, reinstatement to the
Complainant’s former position, back pay with an appropriate interest rate,
medical expenses, if any, benefits, such as pension contributions, if any, and
lost overtime, are among the remedial matters that may be present. The parties
are also directed to address the impact of the strike against the Respondent’s
mine as it affects the remedies due. In addition, the remedies typically also
include: expungement from Juan Smitherman’s personnel file of all references to
the unlawful disciplinary action taken against him, including any such
references to the events and circumstances associated with his wrongful
termination, from any other records maintained by the company; and a posting of
this decision at all of its mining properties where Respondent operates, placed
in conspicuous, unobstructed places where notices to employees are customarily
posted, for a period of 60 days, together with a posting by Warrior Met at its
mining properties that it will not violate the Mine Act. The issue of MSHA’s
civil penalty also is to be addressed including, if possible, a settlement on
the amount.

The Court retains
jurisdiction in this matter until the specific remedies to which Mr. Smitherman
is entitled are resolved and finalized. Accordingly, this decision will not
become final, and therefore not appealable, until an order granting specific
relief and awarding monetary damages has been entered. Per the above, Counsels
are directed to discuss the issues of the appropriate relief and to report the
results of their discussions in writing to the Court within 20 calendar days of
the date of this order.

SO ORDERED .

/s/ William B.
Moran

William B. Moran

Administrative Law
Judge

Distribution:

C.
Renita Hollins, Esq., Mathew Shepherd, Esq., Office of the Solicitor, U. S.
Department of Labor, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W.,
Room 7T10

Atlanta,
GA 30303, [email protected] , [email protected]

Timothy
J. Baker, Esq., United Mine Workers of America ,
18354 Quantico Gateway Drive

Suite 200, Triangle, VA 22172, [email protected]

Juan
Smitherman, 924 Aster Place, Helena, AL 35022, [email protected]

Allen B. “Josh” Bennett, Esq., Brock Phillips, Esq., Maynard
Cooper & Gale, P.C.

1901 Sixth Avenue North, Regions Harbert Plaza Suite 1700, Birmingham,
AL 35203

[email protected] , [email protected]

Guy
Hensley, Warrior Met Coal Mining, LLC, 16243 Highway 216, Brookwood, AL 35444

[email protected]

[1] A virtual hearing
was held on October 20 and 21, 2021. The Secretary, Complainant’s counsel, and
the Respondent each filed a post-hearing brief and a response brief. All
contentions were fully considered by the Court and are addressed in this
Decision.

[2] The Court’s
findings of fact are based on the record as a whole and on observation of the
witnesses as they testified. The Court noted the witnesses’ demeanor while
testifying, whether they were forthcoming in answering questions or evasive.
When witnesses’ accounts differed, the Court considered the witnesses’
interests, corroboration of their testimony or lack thereof, and consistency or
inconsistency between the testimonies of the various witnesses. In reaching its
findings and determinations, the Court considered the entire record, including
the parties’ post-hearing briefs and reply briefs. Omission of discussion of
particular aspects of testimony as well as particular contentions made in the
parties’ post-hearing briefs does not mean that such aspects were ignored.
Rather, the Court determined that such discussions were unnecessary, as they
were deemed to be subsumed in the Court’s findings of fact with discussion and/or
in the analysis with further discussion sections of this decision.

[3] Salyers elaborated
that a fly pad is a piece of belt line, about a 4-foot-wide, and 7 to 9 feet in
length. When installed, they need to touch or overlap and thereby create a wall
so that when air hits the pad it will move in a certain direction. They are
distinct from curtains because a piece of equipment can pass through pads,
without ripping them down. Vol. 1, Tr. 50-51.

[4] As Counsel for
the Secretary pointed out during redirect examination of the Complainant,
Salyers never asked Smitherman why he wanted to be transferred to the other
side of the mine. Vol. 1, Tr. 298. The Court would note that such a question
from Salyers would have been natural and expected, unless one already knew the
reason.

[5] A bundle consists of approximately 20 to 25 pipes. Vol.
1, Tr. 80.

[6] The following is the text of
Salyers’ statement: “at Section arrival (11:45 p.m.), I gave Juan Smitherman
orders to operate Sec. Lo Trac and that his Job would consist of moving up
supplies. The supplies that I ordered Juan to move up were block and 2 ̎ water
line. I also gave Juan specific orders where to place these supplies. Neither
the water line nor the block was placed where I asked for it to be placed by
the end of the shift. When I seen Juan at his dinner break he told me he had
just unloaded the flat car and I asked him where the 2 ̎ water line was that I
had asked for + he said there was 11 joints 2 crosscuts outby, I told him there
is a whole pile and asked him if he looked in every long block along our
travelway and he replied yes. I told him then, that now that our block had
arrived and been unloaded from the flat car make it priority to get it to the
sec. + stock out the night return stopping, he said okay. Later in the shift
around 6:00 a.m. I walked towards the supply hole at break 6 and found Juan
slumped down in the operating deck of the Lo Trac with his hat off his head +
his light turned off. I asked Juan what he was doing and he said he was taking
a break. I told him he had a lunch break and that I couldn’t see that he had
moved anything up. He said he hauled block to the sec. across from the charger.
He said he had to unload the flat car today, I told him he shouldn’t have even
taken an hour. Then he said he was having trouble passing a place by the track.
I told him the other Lo Trac men have no trouble. I asked him why he didn’t
seem to care if we got any work done on this section, he replied that he did
not want to work on 4 sec. and I told him I couldn’t help him because that is
not my decision. I then told Juan I was writing him up when I got outside and
that I did not want to catch him again. He replied do what you got to do and I
walked back to the sec.at 600 a.m. 3 loads had been moved up, 1 bulk bag of
dust 2 pallets of block (neither pallet at right return) The Lo Trac was not
running when I found Juan and a pallet of block was on the forks. 3 – 2- 21 -Zachary
Salyers” Ex. P 38, Ex. R 5.

[7] Complainant’s
MSHA Discrimination claim, admitted as Ex. P 2, is dated March 31, 2021 and sets
forth under the “Summary of Discriminatory Action,” section, the following: “On
3-7-21  I was working on four section. I walked across from 3 entry to 2 entry.
I noticed that the roof bolter was in #2 entry in front of the slant that had
just been cut, it was the second cut in. Their was no slider or line curtain up
in the slant. They were in the process of putting the drop board across #2
entry. At this point no air was being forced into the slant. I assisted in
putting up the drop board. I went to lunch when I got back to the bolter it was
in the slant. Their was no ventilation because the fly pads had not ben hung on
the drop board. I told the bolters that I would not bolt the slant until the
fly pads were hung and that the shouldn’t either. At this point the slant had
been unventilated for at least 40 minutes. The other roof bolters found Zack
and told him what I said about 30 min later the fly pads were hung. On 3-8-21 I
got to work about 15 min early and told Zack that I didn’t want to be a part of
4 section any more because of the incident the day before. He said that he
would work on it. When we got to the section he told me that I wouldn’t be
working on the roof bolter and that I would be working out by. At the end of
the shift he asked me how many pallets I have moved and I told him. He started harassing
me saying what a sorry job I had done and threatened me with a write up. On the
way out of the mine he told me to go to the manager’s office. They gave me 5
days off with the intent to fire me. I told them that had happened and that
this was retaliation and they said that they would investigate. After the 5
days they said that they were going ahead with termination. I am seeking back
pay and reinstatement.”

[8] Smitherman
initially gave the date as February 5; upon cross-examination, he freely conceded
he was not certain of the exact date and that it may have been February 2. Vol.
1, Tr. 130, 247.

[9] Explaining the
significance of dust bags on a roof bolter, Smitherman explained “It's a – it’s
a – like a vacuum cleaner bag. If you ever changed a vacuum cleaner bag, that’s
pretty much what it looks like.” Tr. 132. The dust bag sits in the dust box on
the roof bolter. Tr. 133. Without the bag, the dust goes into the box and one
would later need to shovel that dust out of the box. Tr. 134. That process,
shoveling it out, creates a lot of dust. Id. Smitherman cared about this
because use of the bag keeps respirable dust down in the mine. Id . He
also asserted that the roof bolter he was using normally had dust bags. Id .

[10] Explaining the
role of fly pads and the drop board, Smitherman testified that “The drop board
is the – it’s a long piece of wood about 20 – a little less than 20 feet long,
and it – it’s mounted to the ceiling – the roof bolter mounts it to the
ceiling, and that’s to hold the fly pads. If you ever walked in – seen like an
industrial freezer and they have those plastic pads that they go in – that the
forklift goes in and out of, that’s what – that’s what – what a fly pad does. But
it still – it allows people to go through it, but it still directs air. Okay? That's
what the fly pads are.

And
then the curtain line is supposed to start at the end of that fly pad, and it
extends out until you cut. And then like I said, this was the second cut in. So
the first cut, normally, you don't put one because you can go in 10 feet
without putting one up.” Vol. 1, Tr. 145-146.

[11] As noted, the
Complaint and other records in this case erroneously listed the dates of the
shift at issue as March 7 and 8, rather than March 1 and 2, 2021. Both parties
agree that the latter dates reflect the correct days. Vol. 1, Tr. 189-90, 199-201 .

[12] This was a task
requiring some exertion on Smitherman’s part. His testimony was uncontradicted
that the rock duster is used to pull dust. It is about 4 feet long and 2 feet
wide, and all metal. It has a big hopper on top of it, and a hydraulic pump. He
described it as “real heavy, weigh[ing] about 150 pounds.” Vol 1, Tr. 166.

[13] Later, on
redirect by the Secretary, Smitherman affirmed he had moved up all the block
and the rock dust by the end of the shift. Vol. 1, Tr. 299-300.

[14] Respondent’s
Counsel only alluded to the citation. It was not offered in evidence.

[15] The exhibit, P 4,
has some oddities to it. A single page, it is dated effective 3 -8-2020 but
signed 3-8-2021. Under the reason for the disciplinary action, it recites
aspects of Work Rule 1, and then it adds “violation of work rule #5 with no
elaboration. One might have expected more detail for such a “record” of
disciplinary action and that it would have had consistent dates. To the Court,
its summary nature reflects that it was merely assertions on a piece of paper
which were singularly unilluminating.

[16] At first,
Sterling testified about Banks cutting coal, and then when reminded by
Respondent’s counsel corrected herself, that she “believe[d] he was a roof
bolter,” then adding “Yeah, bolting without a curtain.” Tr. 196. When next
asked if “Mr. Smitherman’s report to [her was] that there was bolting without
curtain or cutting without curtain,” Sterling responded that she didn’t “remember
the verbiage. I assumed it would be bolting because that was what their job
assignment was.” Id.

[17] From context in
the transcript it is clear that counsel for the Secretary and Sterling briefly
confused Smitherman and Salyers, using Smitherman’s name when she clearly meant
Salyers. Vol 2, Tr. 213.

[18] The Court’s view
that Sterling’s ‘investigation’ was a conclusion first, followed by a
half-hearted inquiry, is also reflected by her remark that “Juan kept saying
that he did not like the way Zach [Salyers] operated and he didn’t want to work
for him.” Tr. 212 (emphasis added). Yet, while the Complainant kept saying he
had an issue with the way Salyers operated, she did not inquire further.

[19] It is
noted that the prima facie case remains unchanged, even
within the Ninth Circuit, at least in terms of the preponderance of the
evidence standard. As before, in the absence of direct evidence of
discrimination, the miner may bring forward indirect evidence of
discrimination, such as the operator’s knowledge of the protected activity, the
operator’s hostility towards the protected activity, the coincidence in time between
the protected activity and the adverse action, and disparate treatment of the
complainant. Sec’y of Labor on behalf of Johnny Chacon v. Phelps Dodge Corp. , 3 FMSHRC at 2510.

[20] The
Court has observed that Smitherman’s action is not limited only to those
matters specifically addressed in his initial MSHA complaint, but rather to any
issue arising in the MSHA investigation. See Carmichael v. Jim Walters Res.,
Inc ., 20 FMSHRC 479, 484 n.9 (May 1998) (“[w]hatever its value as evidence,
the complaint to the Commission, much like a complaint in a court proceeding, is
a basic pleading that serves to frame the issues to be
tried.”) (emphasis added). The Commission, in Thomas
v. CalPortland Co. , held that the miners’ claim need not be limited to the
protected activities he alleged in his initial section 105(c)(2) complaint, but
rather could include any matter investigated by MSHA in response to the section
105 claim. Thomas v. CalPortland Co., 42 FMSHRC 43, (Jan. 2020), citing Hatfield
v. Colquest Energy, Inc., 13 FMSHRC 544, 545-46 (Apr. 1991). The
Commission remarked that Hatfield “ only precludes a miner from broadening his complaint to request relief
for an adverse action that was neither pled in the initial
administrative complaint or investigated by the Secretary after receipt of such
complaint.” Id . at *11 , (Commissioners Jordan and Traynor, concurring).
This is important, because “miners are comparatively less likely to
specifically reference in their initial complaint other allegations critical to
the evidentiary burden of establishing a discrimination case, such as protected
activity and unlawful motivation, because their importance is only apparent to
those familiar with the legal requirements of our Pasula-Robinette
framework.” Id . at 57.

[21] The Commission has held
that the Secretary may establish a non-frivolous motivational nexus simply
through the operator’s knowledge of protected activity and temporal
proximity between the protected activity and the adverse action. Sec’y
of Labor on behalf of Stahl v. A&K Earth Movers, Inc. 22 FMSHRC 323,
325-26. (March 2000). That case involved eight days. This matter came about in
less than 48 hours.

[22] That the
‘investigation’ had the aroma of conviction followed by investigation is plain
with Sterling’s examination of Smitherman’s personnel file. Such an examination
would not yield any information as to whether the assertion that the
Complainant was loafing or sleeping was true. It points only to a search for
potential assistance to a predetermined outcome.

[23] Tellingly,
as discussed above, Warrior Met Coal’s management could not even consistently
define an “unauthorized break.” At first, they insisted it is simply when a
miner takes a break without asking their supervisor first, but then they conceded
that miners may take breaks for water or to use the restroom without consulting
their supervisor. Tr. 192, Day 2 228-232 When pressed, Sterling
could not define the threshold at which a miner would require supervisor
permission for a break, except to insist that Smitherman was on the wrong side
of it. Tr. Day 2 228-232 The Commission has held that “an operator does
not establish a Pasula-Robinette affirmative defense if a work rule or
policy that the miner is alleged to have violated, was applied discriminatorily
to the miner or in a manner deliberately calculated to render his compliance
difficult or impossible .” Sec’y on behalf of Price v.
Jim Walter Res., Inc ., 12 FMSHRC 1521, 1534 (Aug
1990).

[24] While not
addressing all aspects of the relief sought, at the hearing the Secretary
identified that he is seeking permanent reinstatement for Smitherman, back pay
from the day of suspension up to the date of temporary reinstatement,
out-of-pocket medical and dental expenses incurred during the period of
termination, and damages and penalties calculated by the Secretary, seeking
$20,000.00. Vol. 1 Tr. 10-11.