Boswell v. National Cement Company

Plain-English summary

Ronny Boswell, a utility laborer at National Cement Company's Alabama cement plant, was disqualified from that position and transferred to a lower-base-pay payloader-operator job after several workplace incidents. An ALJ found that Boswell's refusals to perform work he reasonably believed was unsafe and his requests for safety reviews were protected activity under the Mine Act. The Commission upheld the ALJ's rulings that Boswell's complaint was not barred by its filing delay, that the disqualification and transfer were adverse action, and that protected activity motivated the discipline. It vacated and remanded the remaining issues because the ALJ had not decided whether Boswell's wheelbarrow refusal remained protected after management's response or whether National Cement proved it would have taken the same action for unprotected conduct.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c), § 815(c)(2), and § 815(c)(3)
• Outcome: The ALJ's decision was affirmed in part, vacated in part, and remanded for further analysis of the wheelbarrow incident and National Cement's affirmative defense.
• Key point: A miner's safety-based work refusal may be protected, but the operator's response and any defense based on unprotected conduct must also be evaluated.

Full text (FMSHRC public release)

February 26, 1992

RONNY BOSWELL

v. Docket No. SE 90-112-DM

NATIONAL CEMENT COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). National
Cement Company ("National Cement") seeks review of a decision by
Commission
Administrative Law Judge Roy J. Maurer concluding that National Cement
unlawfully disqualified Ronny Boswell from his position as a utility laborer
in violation of section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 13 FMSHRC
207 (February 1991)(ALJ). The Commission granted National Cement's petition
for discretionary review. For the reasons that follow, we affirm the judge's
decision in part, vacate it in part, and remand.
I.
Factual and Procedural Background
At the time of the alleged discrimination, Boswell had worked for
National Cement at its cement plant in Ragland, Alabama, for about 14 years,
including ten years in the position of utility laborer. During the preceding
six years, and at the time of the events in question, his supervisor was James
Allen.
National Cement disqualified Boswell from his position as a utility
laborer pursuant to a "Disciplinary Action Report" ("Report") dated January
11, 1990. The Report indicated five grounds for Boswell's disqualification:
(1) a kiln incident on August 8, 1989; (2) a clay shredder incident on October
1 and 2, 1989; (3) a radio incident on October 22, 1989; (4) a kiln incident
on December 22, 1989; and (5) a bobcat and wheelbarrow incident on January 1,
1990.
With respect to the kiln incident of August 8, 1989, Boswell and Allen
presented conflicting versions at the hearing. The judge credited Boswell's
account. 13 FMSHRC at 208-09. On the day in question, two miners had been
working in the kiln, tearing down brick and coating. Allen directed three
other employees, including Boswell, to enter the kiln and throw the debris

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back up the kiln. 13 FMSHRC at 208-09. Boswell testified that, at the time
of the incident, he believed it was unsafe to have more than two miners at a
time working in the kiln when pulling down brick and coating. Tr. 20-21.
Boswell refused Allen's direction to go inside the kiln and requested a safety
review.(Footnote 1) The company subsequently dropped the matter and the three
miners, including Boswell, were not required to enter the kiln.

Page 2

of the incident, he believed it was unsafe to have more than two miners at a
time working in the kiln when pulling down brick and coating. Tr. 20-21. He
Boswell refused Allen's direction to go inside the kiln and requested a safety
review.(Footnote 1) The company subsequently dropped the matter and the three
miners, including Boswell, were not required to enter the kiln.
In the clay shredder incident of October 1, 1989, Allen asked Boswell to
operate the shredder.(Footnote 2) Boswell replied that he did not want to
operate it because he had never used it before, had no knowledge of how it
worked, and had never received any training in its operation. Allen then told
Boswell that he was willing to show Boswell how to operate the machine.
Boswell responded that he would not "be responsible ... for what tears up."
Tr. 27. After further discussing the matter with Boswell, Allen assigned
Boswell to another task. The following day, Allen again asked Boswell to run
the shredder. Boswell testified that "about the same thing happened" as had
occurred the previous day. Tr. 27. Eventually Allen started the shredder and
Boswell agreed to watch it run. 13 FMSHRC at 209-10.
As to the radio incident of October 22, 1989, Allen testified that he
tried to call Boswell on the radio and received no answer. Allen then went
looking for Boswell and found him on the eighth floor of the preheating tower
"sitting with the radio on." Tr. 103, 128. Allen testified that he then
asked Boswell if he had heard him calling on the radio and Boswell said he had
not. Allen then checked the radio and it seemed to be in working order.
Tr. 104. In contradiction, Boswell testified that no such incident had
occurred, and that he was not at work on October 22, 1989. Tr. 28-29, 30, 31.
See also N.C. Exh. 4. Allen conceded the date could be incorrect but stated
that the incident had occurred. Tr. 127.
In the kiln incident of December 22, 1989, Boswell worked at the hood of
the kiln for about eight hours, installing beams and building a platform. He
testified that he had been having ear problems for a month and the cold made
his ears worse. Boswell told Allen about his ears and was excused.
The bobcat and wheelbarrow incident of January 1, 1990, arose when Allen
directed Boswell to use a bobcat to remove steel mill grinding balls from the

1 Under the collective bargaining agreement at the mine, a miner has the
right to call for a safety review if he believes that a situation is unsafe,
and cannot be disciplined for refusing to perform an unsafe task. Under the
safety review procedure, representatives of the union and company meet to
review the situation. If the two sides cannot agree, they may request a
review by the Department of Labor's Mine Safety and Health Administration.

2 Clay is typically encountered in large chunks. At National Cement's mine,
the clay is carried up a conveyor belt, dumped into a revolving tub, and
shredded. Tr. 26.

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the bobcat and wheelbarrow incident of January 1, 1990, arose when Allen
directed Boswell to use a bobcat to remove steel mill grinding balls from the
mill basement.(Footnote 3) The task involved traveling on a 20 to 30 degree
inclined concrete ramp that was strewn with loose clinkers. The ramp was 12
feet wide and 30 to 40 feet long. There were six to eight inches of water at
the bottom of the ramp in a ditch with a metal-eared safety barrier. Boswell
responded that it was unsafe for him to operate the bobcat because he had no
training on the machine. Allen then told Boswell to use a wheelbarrow to
perform the task and Boswell refused on the grounds that it was unsafe to push
the wheelbarrow. Allen testified that he then explained to Boswell various
ways of performing the task safely. Boswell called for a safety review but
Allen dropped his request and sent Boswell to push rock for the balance of the
shift.
On January 11, 1990, management and union officials met to discuss
Boswell's job performance. Boswell was then advised that, based on the five
incidents referenced in the Report, he was disqualified as a utility laborer
due to his unsatisfactory performance. National Cement decided that Boswell
would be permitted to "roll" to another job. Boswell elected to roll to the
job of payloader operator, which paid a base rate of $12.50 per hour. The
utility laborer's job paid a base rate of $13.58 per hour.
On February 26, 1990, Boswell filed a discrimination complaint with the
Mine Safety and Health Administration ("MSHA") based on the disqualification.
By letter dated May 4, 1990, MSHA notified Boswell that it had determined that
he had not been discriminated against in violation of section 105(c) of the
Mine Act, 30 U.S.C. § 815(c). On June 18, 1990, Boswell filed a complaint
with the Commission pursuant to section 105(c)(3) of the Act, 30 U.S.C.
§ 815(c)(3)
National Cement filed a motion to dismiss Boswell's complaint as
untimely, on the basis that it had been filed with the Commission more than 30
days after MSHA's determination that no discrimination had occurred.(Footnote
4) The judge summarily denied the motion on the grounds that the filing time
was not jurisdictional. Tr. 13. On the merits, National Cement primarily
argued that Boswell's disqualification was justified by the five incidents set
forth in the Report. National Cement also provided testimony and other
evidence to the effect that Boswell's prior work history was poor and that the
underlying cause of the problem was the fact that Boswell and Allen could not
get along.
The judge determined that Boswell had engaged in protected activity.
13 FMSHRC at 213. With regard to the kiln incident of August 8, 1989, the
judge found that Boswell's refusal to work and his request for a safety review

3 The bobcat is a four-wheeled vehicle with a bucket in front that is used to
pick up, transport, and dump loose material. The vehicle does not have a
steering wheel and is operated with hand and foot controls. See Tr. 34.

4 In relevant part, section 105(c)(3) of the Mine Act provides: "If the
Secretary, upon investigation, determines that the provisions of [section
105(c)] have not been violated, the complainant shall have the right, within

Page 3

30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission, charging discrimination or interference...."
30 U.S.C. § 815(c)(3).
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were made in good faith and were reasonable and, hence, were protected. 13
FMSHRC at 209, 213. In reaching his conclusion, the judge also relied on
the testimony of James Noah, a fellow employee, who testified that he informed
National Cement's safety director that, if Boswell had not requested the
safety review, he would have. 13 FMSHRC at 209. The judge found that the
work Boswell was scheduled to perform was "patently unsafe." 13 FMSHRC at
213.
The judge further determined that Boswell's refusal to work in the
bobcat and wheelbarrow incident of January 1, 1990, was a protected work
refusal, and that his request for a safety review was also protected activity.
13 FMSHRC at 213. The judge found that Boswell had very limited experience
operating the bobcat, and no experience operating it on a 20 degree slope.
Id. In addressing Allen's wheelbarrow alternative, the judge noted that the
results of a safety review were unknown because Boswell's request was not
acted upon and Boswell was given another assignment. Id.
The judge concluded that Boswell's disqualification was motivated, "at
least in major part," by his protected activity.(Footnote 5) 13 FMSHRC at

213. Based on that conclusion, he found that Boswell was discriminated
     against in violation of the Mine Act. Id. The judge held that Boswell was
     entitled to reinstatement to his former position as utility laborer and to
     have his personnel file purged of any derogatory information pertaining to his
     disqualification. 13 FMSHRC at 215. The judge found that Boswell was not
     entitled to any back pay because, as a result of 56 more hours worked, he had
     earned $919.54 more as a payloader operator than he would have earned as a
     utility laborer. 13 FMSHRC at 214-15.
     On review, National Cement argues that the judge erred in not dismissing
     Boswell's complaint because of its untimely filing. It contends that
     Boswell's refusal to use the wheelbarrow to remove the steel balls from the
     mill basement was not protected activity and justified his disqualification
     and transfer. National Cement also argues that the judge erred in failing to
     address its defense that, notwithstanding Boswell's alleged protected
     activity, it would have disqualified and transferred him in any event based on
     his prior work history and his poor job performance. It points to the judge's
     failure to address Boswell's poor working relationship with Allen and his
     other work history, apart from the incidents listed in the Report. Finally,
     National Cement asserts that Boswell's disqualification and transfer were not
     adverse actions, since Boswell actually earned more as a payloader operator.

5 The judge found no protected activity involved in the other three incidents
discussed in the Report. With regard to the clay shredder incident, the
judge did not find any protected activity on Boswell's part nor did he find any

Page 4

unprotected justification for disqualifying Boswell based on this incident.
13 FMSHRC at 210. With respect to the radio incident of October 22, 1989, the
judge found the evidence that the incident actually occurred to be extremely
weak. Id. The judge determined that the kiln incident of December 22, 1989,
neither helped nor hurt either party. 13 FMSHRC at 211.
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II. Disposition of Issues
A. Timeliness of Boswell's discrimination complaint
We affirm the judge's denial of National Cement's motion to dismiss
Boswell's complaint. The Commission has made clear that the filing periods
for section 105(c) discrimination complaints are not jurisdictional in nature.
See, e.g., David Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (January
1984), aff'd mem. 750 F.2d 1093 (D.C. Cir. 1984) (table) (60-day time limit
under section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), for miner to
file discrimination complaint with the Secretary); Secretary on behalf of
Donald R. Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986)(Secretary of
Labor's filing responsibilities). Thus, on a case-by-case basis, the
Commission may excuse filing delays in appropriate circumstances. See Hollis,
6 FMSHRC at 24.
Under section 105(c)(3) of the Mine Act, Boswell was required to file
his complaint "within 30 days of notice of the Secretary's determination" of
no discrimination. The statute makes clear that the time for filing begins to
run upon "notice" of the Secretary's action. Here, the record does not
indicate when Boswell actually received MSHA's May 4, 1990, letter notifying
him of its determination but, assuming three days for its receipt through the
mail, Boswell's complaint, filed on June 18, 1990, was at most, 12 days late.
The record also shows that on June 6, 1990, Boswell erroneously mailed his
complaint to MSHA at its Arlington, Virginia, office and that MSHA forwarded
it to the Commission.
Under these circumstances, we conclude that the lateness of Boswell's
filing was de minimis and appears to have resulted, at least in part, from
mistake, inadvertence, or excusable neglect. Most significantly, National
Cement has shown no prejudice in connection with this brief delay (see Hale,
8 FMSHRC at 909), nor has there been any showing that Boswell knowingly
slumbered on his rights. Cf. Hollis, 6 FMSHRC at 25. Accordingly, Boswell's
late filing is excused.
B. The Alleged Discrimination
The Commission has long held that a miner seeking to establish a prima
facie case of discrimination under section 105(c) of the Mine Act bears the
burden of persuasion that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-
2800 (October 1980), rev'd on other grounds, sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); and Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The

Page 5

operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by any
protected activity. If an operator cannot rebut the prima facie case in this
manner, it may nevertheless defend affirmatively by proving that it would have
taken the adverse action in any event on the basis of the miner's unprotected
activity alone. Pasula, supra; Robinette, supra. See also Eastern Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
~258
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under National Labor
Relations Act).

1. Protected Activity
   The judge found that Boswell engaged in two instances of protected
   activity: (1) his work refusal and request for a safety review in the kiln
   incident of August 8, 1989; and (2) his work refusal and request for a safety
   review in the bobcat and wheelbarrow incident of January 1, 1990. National
   Cement argues on review that the judge erred in finding that Boswell engaged
   in protected activity in connection with his refusal to use the bobcat and
   wheelbarrow to remove the steel balls from the mill basement on January 1,
   1990.
   For a work refusal to come within the protection of the Mine Act, the
   miner must have a good faith, reasonable belief that the work in question is
   hazardous. See generally, Robinette, 3 FMSHRC at 807-12. In determining
   whether the miner's belief in a hazard is reasonable, the judge must look to
   the miner's account of the conditions precipitating the work refusal and also
   to the operator's response. An operator has an obligation to address the
   danger perceived by the miner. Secretary on behalf of Pratt v. River
   Hurricane Coal Company, Inc., 5 FMSHRC 1529, 1534 (September 1983);
   Secretary
   of Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 230 (February 1984),
   aff'd sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir.
   1985). As stated in Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989), once
   it is determined that a miner has expressed a good faith, reasonable concern,
   the analysis shifts to an evaluation of whether the operator has addressed the
   miner's concern "in a way that his fears reasonably should have been quelled.
   In other words, did management explain to [the miner] that the problems in his
   work area had been corrected?" 866 F.2d at 1441. See also Secretary on
   behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-99 (June 1983);
   Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (February 1988), aff'd,
   866
   F.2d 431 (6th Cir. 1989)(table). Accordingly, a miner's continuing refusal to
   work may become unreasonable after an operator has taken reasonable steps to
   dissipate fears or ensure the safety of the challenged task or condition.

Page 6

National Cement's argument suggests that by itself Boswell's refusal to
use the bobcat was outside the Act's protection but the thrust of its argument
focuses on the wheelbarrow aspect of that work dispute. With respect to the
bobcat incident, the judge concluded that Boswell's work refusal was
protected. 13 FMSHRC at 213. We are satisfied that substantial evidence
supports the judge's finding. Boswell had very limited experience operating
the bobcat and none on a 20 degree slope. Tr. 34-36. Boswell testified that
he was afraid to run the bobcat and that it was unsafe for him to attempt to
do so. Tr. 34-36. See also Tr. 83-84. Boswell indicated in his written
response to the Report that he had never been trained to operate the bobcat,
and that he might have run it on flat ground for a total of eight hours. N.C.
Exh. 4. See also Tr. 35-36. National Cement did not provide training for
operation of a bobcat. Tr. 35, 84. We agree with the judge that Boswell's

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refusal to operate this equipment under the conditions involved lies within
the zone of protected activity.
National Cement's principal challenge to the judge's finding of
protected activity centers on the wheelbarrow dispute. As noted, after
Boswell refused to operate the bobcat, Allen then directed him to use a
wheelbarrow to remove the steel balls. When Boswell refused because of the
clinkers on the ramp, Allen told Boswell to "move the clinker[s]
from the ramp" and "sweep it down [so that] you have a flat surface." Tr. 85.
The judge did not address Allen's testimony in this regard, nor did he discuss
Allen's testimony that Boswell was told someone would be sent to help him
remove the steel balls with the wheelbarrow and that he could carry loads of
about ten pounds in the wheelbarrow. Tr. 84-85.
Thus, there is testimony in the record that suggests National Cement may
have adequately addressed the fears giving rise to Boswell's work refusal and
that, therefore, his continued work refusal may no longer have been
reasonable. If so, his work refusal lost its protected status and could
provide a legitimate justification for Boswell's disqualification and transfer
as well as the basis for an affirmative defense. We express no view as to
whether Boswell's fears were quelled. We conclude, however, that the judge
should reconsider his findings in view of the testimony referred to above and
any other relevant evidence of record and determine whether Boswell's fears
were adequately addressed by National Cement.

Page 7

2. Adverse action
   National Cement argues that no adverse action was taken against Boswell
   because he earned more in the job to which he transferred than he would have
   earned as a utility laborer. We disagree. The Report specifically states
   that Boswell was disqualified as a utility laborer due to unsatisfactory
   performance and that he was reprimanded. It states further that, in order to
   avoid discharge, the employee should review his work performance history.
   This Report clearly constitutes an adverse action subjecting Boswell to
   discipline or detriment in his employment. See generally Secretary on behalf
   of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (August 1984).

6 National Cement does not argue that the judge erred in finding that
Boswell's request for a safety review regarding the bobcat and wheelbarrow
incident was protected.

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Further, although Boswell earned $920.04 more in his new job than he
would have in his previous one, his job transfer from a utility laborer to
payloader operator reduced Boswell's base pay by $1.08 per hour. The annual
difference in earnings found by the judge was due to additional hours worked
by Boswell and premium pay received for Sunday and holiday work, shift
differential, and overtime. See Tr. 43-46, 168. Thus, the evidence shows
that Boswell earned more because he worked more, but that he nevertheless
suffered a loss in his base pay rate.
We conclude that Boswell suffered an adverse action.

3. Nexus
   We agree with the judge's conclusions that National Cement's action
   against Boswell was motivated at least in part by Boswell's protected
   activity. The Report specifically refers to Boswell's August 8, 1989,
   refusal to remove brick from the kiln, Boswell's January 1, 1990, refusal
   to remove the steel balls from the mill basement using the bobcat and
   Boswell's requests for safety reviews associated with these work refusals.
   National Cement does not dispute that these activities were part of its bases
   for disciplining Boswell. Thus, we affirm the judge's conclusion that Boswell
   was disciplined, at least in part, for these protected activities and that he,
   therefore, established a prima facie case of discrimination.
4. Affirmative Defense
   On review, National Cement argues that it would have disciplined
   Boswell, in any event, for his unprotected activity alone and that the judge
   did not address this affirmative defense. The operator presents two bases for
   its affirmative defense: (1) Boswell's allegedly poor work history including
   the wheelbarrow incident and the three other incidents set forth in the
   Report (the clay shredder, radio and December 22, 1989 kiln incidents) as well
   as his earlier work history;(Footnote 7) and (2) the inability of Boswell and
   Allen to get along. The judge found little evidence that the radio incident
   actually occurred and therefore determined that it did not affect the issue at

Page 8

bar. We agree. The judge also found that the clay shredder and December 1989
kiln incidents did not involve protected activity and individually did not
provide the operator with justification for disciplining Boswell. He did not,
however, analyze whether National Cement had established an affirmative
defense, based on the totality of unprotected activity set forth in the
Report. Nor did he mention the earlier work history or Boswell's relationship
with Allen. Accordingly, we remand this case to the judge for analysis of
this issue. On remand, the judge shall evaluate the evidence of record on
these points in light of the Pasula-Robinette affirmative defense framework.
Pasula, 2 FMSHRC at 2799-800; Robinette, 3 FMSHRC at 817-20. If the judge
finds that Boswell's refusal to use the wheelbarrow was not protected, he
should also consider this incident when evaluating National Cement's
affirmative defense.

7 According to National Cement, Boswell had a long history of performance
problems, involving seven additional incidents. See N.C. Exhs. 5-11. We
note, however, that these incidents were not mentioned in the Report.

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III.
Conclusion
Accordingly, on the foregoing bases, we affirm the judge's decision in
part, vacate it in part, and remand for further proceedings consistent with
this opinion. The judge shall consider whether the wheelbarrow incident
constituted a protected work refusal. The judge shall also analyze whether
National Cement proved that it would have disqualified Boswell in any event
for any unprotected activities the judge may find in reconsidering the matters
raised in this decision.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner