LAD Mining Incorporated, Larry Flynn and Ronald Calhuon
LAD Mining Incorporated, Larry Flynn and Ronald Calhoun (FMSHRC SE 92-181-D): Discrimination liability found, remedies reserved
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
The Secretary alleged that LAD Mining, Larry Flynn, and Ronald Calhoun refused to hire Jerry Lee Dotson because of his safety complaints and earlier Mine Act discrimination complaint. Judge David F. Barbour found that Dotson engaged in protected activity, that Calhoun knew about it and sought to keep Dotson from employment, and that Flynn's stated business reasons for not hiring Dotson were pretextual. The partial decision found a violation of section 105(c)(1), but reserved reinstatement, back pay, other remedies, and the civil penalty for later proceedings. The judge retained jurisdiction until those issues were resolved.
Decision snapshot
- Cited provisions: 30 U.S.C. § 815(c)(1), 30 U.S.C. § 815(c)(2), and 30 U.S.C. § 820(a)
- Outcome: Discrimination liability was found, while remedies and the civil penalty remained pending.
- Key point: An applicant for mine employment is protected from adverse hiring action motivated by Mine Act protected activity.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. LAD MINING
DDATE:
19930402
TTEXT:
Page 2
~634
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
SECRETARY OF LABOR, : DISCRIMINATION
PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 92-181-D
Petitioner :
v. : Mine No. 50
:
LAD MINING INCORPORATED, LARRY :
FlYNN AND RONALD CALHOUN, :
Respondent :
PARTIAL DECISION PENDING FINAL ORDER
Appearances: Gretchen M. Lucken, Esq., Office of the
Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Michael W. Boehm, Esq., and Thomas S. Kale,
Esq.,
Spears, Moore, Rebman and Williams,
Chattanooga,
Tennessee, for Respondent.
Before: Judge Barbour
STATEMENT OF THE CASE
This case involves a discrimination complaint filed by the
Secretary of Labor ("Secretary") on behalf of Jerry Lee Dotson
pursuant to Section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 815(c)(2) ("Act" or "Mine Act").
The Respondents are Larry Flynn, Lad Mining, Inc. ("Lad") and
Ronald Calhoun. The essence of Dotson's complaint is as follows:
(1) that Dotson was working at Mine No. 50; (2) that the
operator for whom Dotson was working went out of business and
closed the mine; (3) that shortly, thereafter, the mine reopened
under a new operator, Lad Mining,Inc., and that Larry Flynn, the
owner of Lad, and Ronald Calhoun, the president of the company
that leased coal rights to Lad, refused to hire Dotson to
continue working at the mine because of Dotson's protected
activity and in violation of Section 105(c)(1) of the
Act.(Footnote 1)
1 Section 105(c)(1) of the Act provides as follows:
No person shall discharge or in any manner
Page 3
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
Page 4
~635
Dotson seeks "reinstatement" to his former position as a
miner, back
pay with interest, all employee benefits lost because of the
refusal to hire,
and compensation for economic damages resulting from the refusal
to hire.
Dotson also seeks a cease and desist order barring the
Respondents from
further discriminatory conduct against Dotson and other
employees, and
expungement from Dotson's records of all references to the
circumstances
giving rise to the failure to hire. In addition, the Secretary
seeks
assessment of a civil penalty against the Respondents for their
alleged
violation of Section 105(c)(1) of the Act. Tr. I 5, 11.(Footnote
2) A
hearing on the merits of the claim of discrimination was held in
Chattanooga,
Tennessee. Helpful
post-hearing briefs have been filed by counsels.
COMPlAINANT'S CONTENTIONS
At the commencement of the hearing, counsel for the
Secretary outlined
the case she intended to prove on Dotson's behalf. According to
counsel, the
evidence would show that prior to working at Mine No. 50, Dotson
worked at
Mine No, 15, where he made protected safety complaints to the
operator, Lonnie
Stockwell, about conditions at the mine.(Footnote 3) The
evidence would
1 (...continued)
[Act] because such miner, representative of miners or
applicant
for employment, has filed or made a complaint under or
related to
the [Act], including a complaint notifying the operator or
the
operator's agent,or the representative of miners at
the...mine of
an alleged danger or safety or health violation in a coal
or other
mine or because such miner, representative of miners or
applicant
for employment is the subject of medical evaluations and
potential
transfer under a standard published pursuant to section
[101] of
this [Act] or because such miner, representative of miners
or
applicant for employment has instituted or caused to be
Page 5
instituted
any proceeding under or related to this [Act] or has
testified or
is about to testify in any such proceeding, or because of
the
exercise of such miner, representative of miners or
applicant for
employment on behalf of himself or others of any statutory
right
afforded by this [Act].
30 U.S.C. 815(c)(1)
2 During the course of the hearing I determined that evidence
relating to
restitution issues should be deferred pending my decision with
respect to
whether the Respondents violated Section 105(c)(1). Tr. I 94-95;
Tr. II 211.
Accordingly, this partial decision treats only the issue of the
alleged
violation.
3 Counsel maintained that Stockwell was a contractor-operator
of
Tennessee Consolidated Coal Corporation ("TCC"), that TCC
controlled the coal
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~636
further show that Dotson also complained to the Mining
Enforcement and Safety
Administration ("MSHA") about conditions at the mine, and
subsequent to his
complaint, MSHA inspected the mine and issued citations and
orders.
According to counsel, when Dotson complained to Stockwell
about
conditions at the mine he was told either to mine in the face of
the
conditions or to quite, and he quite. Tr. I 8-9. As a result,
Dotson filed a
discrimination complaint against Stockwell alleging that he had
been subjected
to a discriminatory discharge. However, a few days after filing
the complaint
he changed his mind and withdrew it. Id.
Counsel stated that shortly thereafter Dotson was hired by
Alfred Meeks
to work as a miner at Mine No. 50. Meeks, like Stockwell, was a
contractor-
operator of TCC. Counsel maintained that about one week after
Dotson was
hired, Calhoun went to Mine No. 50 and told Meeks that Dotson was
a
troublemaker and to get rid of Dotson. A few days later Calhoun
returned and
told Meeks that he, Calhoun, would arrange a meeting between
Stockwell and
Meeks so that Stockwell could tell Meeks about the trouble that
Dotson had
caused at Mine No. 15. Tr. I 9. Meeks declined the offer, and
Dotson
continued to work at Mine No. 50.
Counsel further stated that approximately six months later,
Meeks went
out of business and closed Mine No. 50. Approximately, one week
later, Larry
Flynn reopened the mine under the name of Lad Mining Incorporated
and as a
contractor-operator of TCC. Flynn hired all of the miners who
previously had
worked at Mine No. 50 with the exception of Dotson and another
miner who had
an attendance problem. Tr. I 9. Counsel asserted that Dotson
was not hired
because of his protected activity while at Mine No. 15 and that
Lad, Flynn and
Calhoun were jointly and severally responsible for violating
Dotson's Section
105(c)(1) rights.
RESPONDENTS' CONTENTIONS
Page 7
Counsel for the Respondents answered that the Respondents
had not
discriminated against Dotson and that, in any event, the
Secretary's case was
based on several fallacious assumptions. According to counsel,
contrary to
the Secretary's contention, when a mine in the area closed and
changed owners
it was not a common practice for every miner who worked at the
mine prior to
it closing to be hired by the new operator. Rather, operators
went through an
application process and hired only those whom
3(...continued)
rights, which Stockwell leased from TCC, and that although
Stockwell was the
titular operator of the mine, TCC's president, Ronald Calhoun,
also, had
control and influence over the operation of the mine in that he
made frequent
visits to the mine and oversaw its production and costs. Tr I
8-9, 11.
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~637
they needed. Further, Calhoun did not control hiring and firing,
as shown by
the fact that after Calhoun supposedly, told operators not to
hire Dotson,
Dotson was hired by Meeks. Moreover, to accept the Secretary's
position would
be to accept that Dotson had a vested right to be hired by Flynn
at Mine No.
50, when, in fact, he did not. Flynn, as was his right, employed
a standard
method of hiring and filled positions as he needed them. The
fact that Flynn
had no need to hire Dotson did not suggest unlawful
discrimination on Flynn's
part.
THE SECRETARY'S CASE
Jerry Lee Dotson
The Complainant was the first to testify. Dotson stated
that he had
worked as a miner since 1975. During that time, he had engaged
in a number of
different jobs, including operating continuous mining machines,
shuttle cars,
roof bolting machines, and tractors. He estimated that he had
worked for a
dozen operators in the area of Tennessee where he lives -- the
Whitley
Mountain area.
From 1985 through January or February 1991, he worked at
Faith Coal
Company's ("Faith") No. 15 Mine. At that mine, he did a number
of different
jobs, including running a scoop, a roof bolting machine, a
cutting machine and
general maintenance work. Tr. I 20-21.
Dotson stated that Lonnie Stockwell was the president of
Faith. Tr. I
-
Dotson described Stockwell as a contractor-operator of TCC.
Tr. I 20.
Dotson understood that Stockwell leased the No. 15 Mine from TCC.
Tr. I 101.Ronald Calhoun is the president of TCC, and Dotson
described the
relationship of Stockwell and Calhoun as he had observed it. He
stated that
Calhoun "quite often" (i.e., more than two times a week) was at
the mine. Tr.
I 21. According to Dotson, Stockwell reported the mine's daily
production to
Calhoun and informed Calhoun of any conditions that would cause a
Page 9
decrease in
production. Dotson reported Stockwell as saying, "When Mr.
Calhoun comes . .
. if you don't run coal he gets on you."
Tr. I 23.
Dotson also described the events that he believed had led
to his
differences with Stockwell and Calhoun. He stated that in
December 1990 or
January 1991, there were safety and managerial problems at the
No. 15 Mine.
Miners were working in what had been a sealed off area. In
addition, some
taxes were not being withheld from the miners' pay checks and
FICA taxes were
not being paid. Tr. I 24, 101, 159. According to Dotson, these
problems lead
to a strike. Tr. I 24. In the negotiations to end the
strike, Calhoun
represented management.
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~638
Dotson stated that during the strike, and in front of other
miners, he
told Calhoun, "[I]f you don't want to run these mines halfway
right . . . get
out of them and let somebody in here that will run them right
because they
will run." (He claimed that when he spoke to Calhoun about
"running the mines
right," he was referring to working in the previously sealed off
area and to
withholding taxes. Tr. I 25-26.) Dotson described Calhoun's
reaction: "He
didn't like it. He gets red faced. [H]e looks like he's got
tobacco in both
jaws. He could have bit a twenty penny nail in two that day."
Tr. I 26.
However, Dotson agreed that Calhoun had played a positive
role ending
the strike: that Calhoun talked to miners on the picket line,
listened to
their complaints about the way they were being paid, agreed that
the miners
were justified in striking, suggested they all talk to Stockwell
to resolve
the matter, and told Stockwell that he needed to pay the men
right and give
them the pay records they needed. Tr. I 104.
After the strike, in February 1991, Stockwell again sent
the miners to
work in the area that had been sealed off. According to Dotson,
the foreman
did not want to work in the area because it was so dangerous.
Dotson
described being sent into the area as equivalent to "taking a gun
and putting
it up to somebody's head and pulling the trigger." Tr. I 28.
Because of the
danger, Dotson called MSHA Inspector Larry Anderson and told him
that
Stockwell was "going to get somebody killed." Tr. I 29. This
lead to an MSHA
inspection of the mine on or about February 6. Tr. I 28, 105. In
turn, the
inspection led to citations and orders being issued against Faith
and to a
criminal investigation of Stockwell, an investigation in which
Dotson was
called to testify. Tr. I 30-40. Dotson believed that somehow
"the word got
out" and both Stockwell and Calhoun learned that he had made the
safety
complaint to MSHA that triggered the inspection.
Tr. I 110-112.
Page 11
On or about February 18, 1991, Dotson was working under
what he believed
were bad roof conditions. Stockwell was in the mine and Dotson
asked him for
some jacks or timbers to support the roof. Stockwell did not
respond and left
the mine. Because he got no response from Stockwell, Dotson
asked the
foreman, Dennis Nunley, for the roof supports. Dotson testified
that Nunley
answered that if Dotson didn't like the job he should either
leave or do
another job. Tr I 40-41. When he came out of the mine at the
end of the
shift, Stockwell asked Dotson to stay and Stockwell, in front of
Nunley and
some others, asked Dotson what the problem was? Dotson described
his safety
concerns and the group argued with Dotson over whether or not the
mining
practice that lead to the need for the additional roof supports
was
permissible under the mine's approved roof control plan.
Tr. I 46-47. Stockwell told Dotson that he did not have the plan
at the mine,
and Dotson went home. Tr. I 47.
Page 12
~639
The discussion resumed when Dotson returned to work the
following
morning. Finally, according to Dotson, Stockwell told him,
"either do it the
way we've always done it or . . . go to the house," meaning that
Dotson should
quit. Tr. I 48. Dotson described his response: "I just bowed my
head and I
said that the best thing I can do is go to the house." Id.
The next day Dotson filed a discrimination complaint with
MSHA and
against Stockwell. Tr. I 51; C. Exh 2. Dotson also began
looking for another
job. A few days after he had left Mine No. 15, Dotson met James
Earl Nunley,
another contractor-operator with TCC. Dotson stated that Nunley
told him if
he proceeded with his discrimination action against Stockwell he
would not
work again on the mountain (i.e., in any of the mines on Whitley
Mountain ).
Tr. I. 55, 105. On February 28, 1991, Dotson withdrew the
complaint. Tr. I
56, 58; C. Exh. 3. Dotson explained, "I thought . . . if I
dropped this thing
than everything would be hushed, I could go back to work and just
let things
go . . . I just needed to work. I got a family."
Tr. I 55.
Eight to ten days later, Dotson was hired to work as a
general laborer
at Mine No. 50. The mine was operated by Mosley Creek Coal
Company and Alfred
Meeks was the owner. Meeks leased the coal rights from TCC and
was a
contractor-operator with TCC. Tr I 61-62. Mine No. 50 is "on the
mountain."
As a general laborer Dotson performed a variety of jobs,
including
operating a shuttle car, a scoop and a roof bolting machine, as
well as
maintenance work. Tr. I 63. In getting the job at Mine No. 50,
Dotson did
not apply for any specific job, but rather for any job that was
available. As
Dotson stated, "I needed to work." Tr. I 64.
Dotson was asked about the relationship of Meeks and
Calhoun. He stated
that, frequently, he had seen Calhoun at the mine. Dotson
believed that
Calhoun "stayed on" Meeks about production at the mine and that
Meeks had to
Page 13
report the mine's production on a daily basis to Calhoun. Tr. I
65-66.
Dotson worked for Meeks from late February 1991 until
approximately
August 12, 1991, when Meeks and Mosley Creek Coal Company went
out of
business. Although, he did not know for sure, Dotson believed
that Meeks
ceased mining because "he was tired and [Calhoun] was on him" to
produce coal
and to cut supply costs. Tr. I 66, 123. (Under the
contractor-operator
relationship, TCC purchased the necessary supplies.)
Once Meeks ceased to operate Mine No. 50, Meeks told Dotson
that
approximately two weeks after hiring Dotson, Calhoun had come to
the mine and
told Meeks to get rid of Dotson. Tr. I 79, 117. According to
Dotson, Meeks
told Calhoun that
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Dotson was hired subject to a ninety day probationary period and
that if
Dotson did not work out, Meeks would then get rid of him. Tr. I
-
Dotson
recalled that Meeks also told him that Calhoun, subsequently,
offered to
arrange a meeting between Meeks and Stockwell; so that Stockwell
could tell
Meeks why Dotson should be fired. At that time, Calhoun told
Meeks that
Dotson was "a troublemaker." Id.The same day that Meeks ceased operating Mine No. 50,
Dotson stated that
he learned a new operator was going to take over the mine.
Meeks' son, Donnie
Meeks, who was employed by his father as the mine foreman, told
Dotson that he
should go and see the new operator, Larry Flynn, because Flynn
needed a crew
for Mine No. 50. Tr. I 67. At the time, Flynn was operating
another mine on
the mountain, Mine No. 35.On the day after Mine No. 50 closed, Dotson telephoned
Flynn and told
him that he was looking for a job and that he would "do
anything." Tr. I 68.
According to Dotson, Flynn did not have a crew picked yet and he
told Dotson
that he would get back to him. Tr. I 68. Dotson believed that he
called Flynn
on or about Wednesday, August 14, 1991. During
cross-examination, Dotson
recalled the substance of their conversation: "He told me . . .
he was fixing
to be putting some men to work. He wanted to know what I could
do . . . I
told him I could do anything. And he said . . . I'm sure going
to be putting
some men back to work . . . I'll be getting back in touch with
you . . . just
as soon as I can use you . . . I will get back a hold of you."
Tr. I
128.(Footnote 4)On Friday, August 16 when he had not heard from Flynn, he
went to
Flynn's mine with three other men to talk to Flynn in person
about a job.
Dotson and two of the men previously had worked for Meeks at Mine
No. 50. The
person who had not worked at Mine No. 50 was a young man with no
previous
mining experience. Tr. I 69-70. Flynn gave two of the men,
Dewey Layne and
Page 15
Barry Mosley, applications. He told them to complete the
applications and to
be at Mine No. 50 at 6:00 a.m., the following Monday to start
work. Dotson
maintained that it was another story as far as he was concerned.
He stated
that Flynn looked at him and said that he would have to get back
to him. Tr.
I 69-70. (Dotson further stated that the young man with no
mining experience
was never considered by Flynn for a job.) Dotson was not given
any
explanation as to why he was told this, nor did he ask. Tr. I
158.
4 This version of the conversation was more expansive than
the one
reported to the MSHA investigator on October 8, 1991. At that
time, Dotson
reported that he had called Flynn and asked him about a job and
that Flynn had
stated that he would be getting right back to Dotson. C. Exh 4
at 4.
Page 16
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Dotson stated, he was certain that during the discussion
with Flynn he
did not say anything to Flynn about wanting to only work at one
job, as a roof
bolter. Tr. I 70. Rather, he told Flynn that he would do
anything. Tr I 72.
However, he recalled, Flynn asked him what positions he had held
when he
worked for Meeks and that he had told Flynn he had run a roof
bolting machine.
Tr. I 131.
Flynn began operating Mine No. 50 on Monday, August 19.
Tr. I 128. For the first two weeks that Mine No. 50 was in
operation under
Flynn's direction, Dotson worked as a security guard near the
mine. Dotson
stated that he had been hired by the county sheriff's department
to guard some
equipment that was the subject of a legal dispute between TCC and
a bank
holding a lien on the equipment. See Tr. 73. During this time,
Dotson
maintained that when he would see Flynn, he would tell Flynn he
needed work
and would do anything. Id. Flynn never offered Dotson a job.
According to Dotson, Flynn hired all of the other miners
who had worked
at Mine No. 50 for Meeks, except Dotson and Davey Johnson, who
had a bad
absentee record. However, not all of the miners who had worked
for Meeks were
hired right away. Dotson stated that Hank Lawson, a roof bolter,
first worked
for another operator before Flynn hired him. Tr. I 76, 132. In
addition, two
others, Johnny Hamby and Ricky Burgan also were hired after
working as miners
for someone else. Tr. I 76.(Footnote 5)
Dotson recalled that after failing to get employment with
Flynn he
continued to visit other mines on the mountain in order to find
work. During
one of these visits he happened to see Henry Harvey standing by
the mine
entrance talking to the operator of the mine. Dotson asked the
mine operator
about jobs and the mine operator said that he had none available.
Later, in
November or December 1991, Dotson again saw Harvey at the post
office. As
Dotson remembered it, Harvey said that when he had seen Dotson at
the mine he
knew Dotson was wasting his time, that the operator had told
Page 17
Harvey that he
could not hire Dotson, that everyone knew about his troubles with
Stockwell.
Harvey knew that somebody had "put the word out" on Dotson. See
Tr. I 83,
85-86.
5 Dotson maintained that it was a common practice on the
mountain for a
new operator to hire the crew that had previously worked in the
mine. His
opinion was based on "common sense." "[I]f you've got good
miners there and
their record speak for theirself, they know the mines, they know
the
operation, they know the top, you'd be a fool not to keep these
same men."
Tr. I 145. However, he could not think of an occasion when a new
operator
came in and hired all of the previous miners. Tr. I 148.
Page 18
~642
Dotson stated that after he was not hired by Flynn, he
continued to look
for a job on the mountain and that he visited the eight to ten
mines located
there. For several months he was unable to get a job. In
December 1991, he
was offered a job at Mine No. 30, but he turned it down because
of his concern
that the mine was not safe. Tr. I 135.(Footnote 6)
Dotson's believed that because of his safety complaints to
Stockwell and
because it had become known that he requested the MSHA inspection
at
Stockwell's mine, Calhoun had, in effect, blacklisted him on the
mountain and
that Flynn and Lad in denying him employment, were complying with
Calhoun's
wishes that he not be employed because of his protected activity.
ALFRED MEEKS, JR.
The Secretary next called Alfred Meeks, Jr. to testify.
Meeks stated
that prior to going out of business on August 12
or 13, 1991, he had worked for 27 years in the mining industry
and that for 18
or 19 of those years he had been associated with TCC, either as
an employee or
as a contractor-operator.
Tr. I 177. Regarding Mine No. 50, Meeks testified that he was
asked by
Calhoun if he wanted to operate the mine and ultimately he became
the operator
under a contract arrangement with TCC. Tr. I 177-178. (Prior to
operating
Mine No. 50, Meeks had operated two other mines as a
contractor-operator for
TCC.
Tr. I 202-206.) It took several months for Meeks to get Mine No.
50 to the
point where production could begin and during this time TCC paid
all of Meeks'
expenses. Once mining began, TCC paid all of Meeks' costs and
Meeks received
a salary. TCC purchased all of the coal that Mine No. 50
produced. Tr. I
213-214.
Meeks described Calhoun as being very involved in the
running of Mine
No. 50. According to Meeks, Calhoun decided in which direction
to mine coal
and Calhoun was constantly concerned about increasing production.
Tr. I 179-
Page 19
- Calhoun, frequently, would come to the mine and would ask
how many
trucks of coal had been loaded and what were the mining
conditions. In
addition, Calhoun was concerned that Meeks' supply costs were too
high. Tr. I
182-183, 190-191, 216-217. Meeks understood that TCC had a
contract requiring
it to provide coal to TVA. He also understood Calhoun to believe
that if TCC
was to survive economically, Mine No. 50 had to be a productive
mine.
Tr. I 218.
6 Dotson also stated that he turned down the job because he
was advised by
"his lawyer" not to go back to work on the mountain. Tr. I
140-141. Dotson's testimony regarding the advice is confusing.
It seems to
have been given after he declined the offer. It also appears
that the advice
was based upon events unrelated to this case. Tr I. 153-156.
Page 20
~643
Despite Calhoun's concern with production and cost, Meeks
testified that
he, Meeks, was solely responsible for hiring and firing at the
mine. Tr. I
-
Meeks hired Dotson on
February 28, 1991. Dotson was hired to operate a roof bolting
machine and to
do anything else that Meeks needed him to do. Meeks explained
that he would
not hire a person to do only one job because "they ha[ve] to
pitch in and do
other jobs." Tr. I 192. Thus, while working at Mine No. 50,
Dotson not only
operated a roof bolting machine, he also ran a scoop, cleaned the
belt line,
hung ventilation curtains, and "did anything that he was asked to
do." Id.
Meeks described Dotson's skills, attendance and attitude as
"excellent." Tr.
I 193.Turning to his conversations with Calhoun involving Dotson,
Meeks stated
that when he told Calhoun that he had hired Dotson, Calhoun "said
. . . Dotson
is nothing but a `GD' troublemaker [and that I] had better get
rid of him."
Tr. I 193. Meeks testified he responded that Dotson was on a
90-day
probationary period and if he caused Meeks trouble during that
time, Meeks
could let him go. Id. Meeks stated that this conversation
occurred about one
week after he had hired Dotson. Tr. I 194, 221. Meeks was
positive the
conversation did not occur during labor trouble at another mine
and that the
conversation did not involve a strike at another mine. Tr. I
194.Meeks also stated that he had a second conversation with
Calhoun
concerning Dotson. Meeks testified that a few days later Calhoun
came to the
mine and told Meeks that Stockwell would come to the mine and
that Meeks could
talk to Stockwell and find out from Stockwell "what kind of a man
. . . Dotson
was." Tr. I 194, 221. However, Meeks stated that he was not
interested in
talking to Stockwell. Tr. I 194-195. At the time, the only
person Meeks told
about his conversations with Calhoun was his son, Donnie Meeks,
the section
foreman at Mine No. 50. Tr. 195-196. Calhoun did not raise the
subject again
Page 21
with Meeks and Dotson remained employed at Mine No. 50 until
Meeks ended the
operation. Tr. 221.
Meeks terminated mining activity on or about August 13,
1991, because he
was "tired of constant harassment day in and day out for more
production and
to cut supply costs . . . I just had enough." Tr. I 196. Meeks
testified
when he shut down he told Calhoun that a "good bunch of men" had
worked for
him and that Calhoun responded that he wanted to get them all
back to work.
Tr. I. 198.
DONNIE MEEKS
The Secretary subpoenaed Donnie Meeks. Donnie Meeks stated
that in
February 1991, while he was acting as foreman at Mine
No. 50, his father told him that Calhoun had said that Dotson had
caused
trouble and his father had asked him to keep an eye on Dotson in
order to see
what kind of an employee he was.
Page 22
~644
Tr. I 236. He confirmed his father's testimony that Dotson
worked as a roof
bolter and that he also did anything else that needed to be done.
Tr. I 236.
After his father went out of business, Donnie Meeks stated
that he spoke
with Flynn over the telephone and gave Flynn the names of all of
the employees
at the mine, including Dotson, and told Flynn what they could do.
As he
recalled, he told Flynn that Dotson could operate, among other
things, a roof
bolting machine, a shuttle car and a scoop. Tr. I 238-239.
However, Donnie Meeks confirmed that not everyone who had
worked for his
father was hired by Flynn. Davey Johnson, who had an absentee
problem, was
not hired and Johnny Hamby and Ricky Burgan were not hired
immediately.
(Donnie Meeks did not state why Hamby and Burgan were not hired
when Flynn
commenced operation of the mine.)
Donnie Meeks also recalled that Flynn brought two miners
with him,
Johnny Jones and Buck Harris. Harris was employed as a roof
bolter. (In
addition, Harris was authorized to act as a mine foreman. He
could fill-in as
mine foreman if Donnie Meeks were sick. Tr. I 248.) Jones was
employed to do
general maintenance. Tr. I 240-241. Harris came with Flynn the
day Flynn
began mining. Jones came approximately one month later. Tr. I
-
Donnie
Meeks also stated that a miner named Jerry Boston came to work at
Mine No. 50
from one of Flynn's other mines, but that too was later. Id.Donnie Meeks gave his opinion that when hiring a roof
bolter, it is
advantageous to hire someone who knows the roof and is familiar
with the mine.
Tr. I 243-244.HENRY HARVEYThe Secretary also subpoenaed Henry Harvey to testify.
Harvey stated
that he had worked as a miner for 27 years, 17 of which were with
TCC. During
his mining career, he had occasion to supervise Dotson. He
described Dotson as
a good worker, who never missed a day and who always did any job
Page 23
asked of him.
Tr. II 8-10. Harvey stated that in October or November 1991, he
worked at a
mine operated by James Earl Nunley and that he and Nunley were
standing
together when Dotson pulled up in the mine parking lot. Harvey
assumed that
Dotson was looking for a job because when someone comes to a mine
that is
usually why. Tr. II 12-13. Nunley said to Harvey "[I]t won't do
him any
good." Tr. II 11.
In January 1992, Harvey saw Dotson at the post office. He
asked Dotson
if Dotson had asked Nunley for a job that day? Dotson responded
that he had
and that Nunley told him that he did not need any miners. Harvey
responded
that this was strange
Page 24
~645
because Nunley had hired people after telling Dotson that he did
not need
anybody. Tr. II 15-16. Harvey added, "I told Jerry, in my
opinion, it looked
like somebody had put the word out on him not to hire him." Tr.
II 16-17.
RESPONDENTS' CASE
LARRY FLYNN
Larry Flynn, the forty-nine-year-old president of Lad
Mining,
Incorporated, was the first person to testify for the
Respondents. Flynn
stated that Lad was formed in July 1987. Since that time he had
been a
contractor-operator of TCC and had constantly operated Mine No.
-
Also,
there had come a time when he became the operator of Mine No. 50,
and Flynn
described how that happened.(Footnote 7)On approximately the same day that Meeks ceased mining,
Flynn met
Calhoun who told him about Meeks' decision to shut down. Calhoun
asked Flynn
if he would be interested in taking over the operation? Flynn
responded that
he would have to look at the mine first. Tr. II 51. There was
no discussion
of Dotson, whom Flynn had never met and did not know. Tr. II 52.Flynn went to Mine No. 50. After he had examined it, he
met Donnie
Meeks who asked if Flynn were going to take over the mine? Flynn
stated that
he was not sure, that he would have to talk to Calhoun. Flynn
stated that
Donnie Meeks responded he would like to work for Flynn as a
foreman if Flynn
decided to operate the mine. Tr. II 55. Flynn told Donnie Meeks
that he had
heard good things about him and that he would give him a job if
he decided to
run the mine. Donnie Meeks said, "I'll send you some more people
if you take
this mine over." Id.Flynn also stated that he did not recall a telephone
conversation with
Dotson on that date regarding Dotson's desire for any type of job
should Flynn
operate Mine No. 50. Tr. II 62.Subsequently, Flynn decided to reopen Mine No. 50 and on
Page 25
approximately
Friday, August 16, he called Donnie Meeks and asked him to come
to the mine
the next day to help get the mine ready to reopen. That same
Friday, Dotson,
Dewey lane and Barry Mosley came to Mine No. 35 to speak with
Flynn. They
asked if he were going to reopen Mine No. 50. When Flynn
responded
affirmatively, they asked if he needed miners and Flynn said that
he did.
According to Flynn, he asked the three what they could do.
Dotson asked Flynn
for a roof bolting job. Flynn stated that he told Dotson he
already had roof
bolters, that he did not need any more, but that if he did, he
would be in
touch with Dotson.
7 Flynn no longer operates Mine No. 50.
Page 26
~646
Tr. II 56-57.(Footnote 8) (Flynn was asked about the basis for
his
recollection of the meeting, and he testified that shortly after
the
commencement of this discrimination action he had spoken with
Dewey Layne
about what had transpired. He said to Layne, "I don't remember
for sure and I
want to know everything I said to [Dotson]." Tr. II 63. Flynn's
testimony
thus reflected what Layne had told him. Tr. II 63-64.)
Flynn explained that he had decided to take a roof bolter
named Bradley
Shipley to Mine No. 50, as well as one named Buck Harris. Tr. II
57, 59. (As
it turned out, Shipley never showed up to work at Mine No. 50
(Tr. II 59) and
of the two, the sole roof bolter who went to Mine No. 50 was
Harris.)
According to Flynn, three months before the Mine No. 50 situation
arose, he
had discussed with Calhoun the possibility of opening a different
mine and at
that time Harris had asked if he could work at the other mine as
a roof
bolting machine operator? Flynn stated that the mine he was
interested in
opening was near Mine No. 50 and that both mines were closer to
Harris' home
than was Mine No. 35. Tr. II 57-58. Harris was a qualified roof
bolter as
well as a mine foreman. The advantage of employing a person with
foreman's
papers was that mining could continue if the regular foreman was
for some
reason unable to work. Tr. II 59.
Flynn began mining on Monday, August 19. When Shipley did
not report
for work, Flynn needed to hire another roof bolter. (Flynn
maintained that
unbeknownst to him, Shipley had been on layoff when he was hired
and that he
had been called back to work. Tr. II 115.) Flynn stated that
the choice was
then between Dotson and Hank Lawson, both of whom had worked for
Meeks when he
ceased operation. Because he did not know either man, Flynn
asked Donnie
Meeks about them. According to Flynn, Donnie Meeks said that
both were good
workers. Flynn then asked who was the best, and Donnie Meeks
said that Lawson
was and Flynn hired Lawson. Tr. II 60-61.(Footnote 9) Flynn
acknowledged,
Page 27
however, that he had not told the MSHA investigator about this
conversation
with Donnie Meeks. Also, he did not mention the conversation
when Dotson's
counsel deposed him in April 1992. Tr. II 121-122.(Footnote 10)
8 Flynn stated that he did not give an application to Dotson
because he
only gave applications to people he was going to hire. Tr. II
138.
9 Flynn stated that he told Dotson that he would hire him as
a roof bolter
for the second shift when he started one. However, Flynn never
heard from
Dotson again about employment. Tr. II 113.
10 Donnie Meeks testified on the first day of the hearing and
was excused
as a witness after the Secretary rested. Counsel for the
Secretary wanted to
recall Donnie Meeks as a rebuttal witness concerning Flynn's
testimony that
Donnie Meeks had recommended Lawson over Dotson. However,
counsel decided not
to do so after a telephone conversation with Donnie Meeks.
Page 28
~647
Flynn was asked whether it was an usual practice to hire
all previous
workers when a mine was reopened? Flynn stated that he had never
heard of
such a thing, that he had no knowledge of an entire crew being
rehired. He
testified that when he reopened Mine No. 35 he had hired only one
person from
the previous crew. Tr. II 68. However, he confirmed that he
brought only two
of his employees to Mine No. 50 -- Buck Harris as a roof bolter
and Jerry
Boston as a belt man -- and that other than these two, the rest
of the men he
used at Mine No. 50 previously had worked there. Tr II 99.
Whether he hired
all of the previous workers except Dotson and Davey Johnson,
Flynn could not
say. Tr. II 100.
Flynn described a very different relationship with Calhoun
than had
Meeks. The Calhoun depicted by Flynn did not come to the mine on
a regular
basis. He might come once or twice a week, or he might not come
for two weeks
at a time. He also telephoned infrequently. Tr. II 81-82.
Flynn maintained
that he did not report mining conditions to Calhoun on a regular
basis and
that although, he completed production reports he did not know if
Calhoun
reviewed them. Tr. II 83. However, Flynn recalled Calhoun
telling him that
Calhoun wanted Mine No. 50 to be a big producer of coal. Tr. II
82.
According to Flynn, it was Calhoun who pressed for the addition
of the second
shift. As Flynn described it, Calhoun "said they needed the coal
bad."
Tr. II 84.
Flynn also stated that Calhoun never attempted to influence
his
decisions regarding hiring and firing, that Flynn had never even
recommended
someone that he might hire. He further stated that before this
discrimination
case was brought he had never discussed Dotson with Calhoun. Tr.
II 68-69.
Flynn claimed that until he was deposed in connection with this
case he had
never heard of the discrimination complaint that Dotson filed
against
Stockwell and Faith Coal Company. Tr. II 72.
Page 29
ROY CALHOUN
Roy Calhoun, president and chief executive officer of TCC,
was the last
witness for the Respondents. Calhoun explained that TCC has 15
to 18 million
tons of coal reserves in southeastern Tennessee, all but
approximately 5
million of which are leased from USX Corporation. TCC does not
mine coal, but
rather contracts with others to mine its reserves. Tr. II
145-147. Calhoun
also explained that under the contractor-operator arrangement
between TCC and
the actual operator, the operator has full responsibility for
everything
relating to the operator's
10(...continued)
She reported that Donnie Meeks stated that he had no recollection
of the
conversation. Tr. II 208.
Page 30
~648
employees, including hiring and firing. Further, the
contractor-operator,
also, is responsible for submitting all required plans to MSHA,
except that
TCC supplies an up-to-date map of the mine workings. Because TCC
leases the
coal reserves, it makes the decisions regarding the direction of
mining so
that future mining of the reserves will not be jeopardized.
Tr. II 152-154.
Calhoun stated that while it was not his practice to go to
all of the
mines of TCC's contractor-operators on a daily basis, he did go
to Mine No. 50
more often than to the others. Indeed, Calhoun acknowledged that
he went to
Mine No. 50 "fairly regularly", because the mine was under
development and
needed to be looked at more closely than the others. Tr. II
155-156, 170.
Still, he maintained, he did not go daily to the mine nor did he
call Meeks
every night at home. Tr. II 156.
Calhoun's version of the strike at Mine No. 15 differed
from Dotson's.
Calhoun stated that the strike was solely about economic issues
-- Stockwell
was not showing that he was withholding FICA taxes on the miners'
pay slips
and he was not paying additional money that he had promised the
miners for
increased production. Tr II 158-160. Calhoun was advised of
this by miners
on the picket line, including Dotson, and he went to discuss the
situation
with Stockwell and was successful in resolving the matter. Tr.
II 159.
(Calhoun made no mention of any complaints regarding safety or of
any
discussion with Dotson alluding to safety.)
After leaving Mine No. 15, Calhoun stated he went that same
day to Mine
No. 50 where Meeks asked him about the strike. Calhoun testified
that he told
Meeks what he knew, but that when Meeks persisted in inquiring,
Calhoun told
him if he wanted to know more about what was going on, he
(Calhoun) would
arrange a meeting between Stockwell and Meeks. When Meeks then
asked who was
on the picket line, Calhoun mentioned, Dotson and "a bunch more."
Tr. II 162.
Calhoun stated that he had no recollection of Meeks telling him
Page 31
that he had
hired Dotson. Tr. II 186. Calhoun denied that he had ever told
Meeks to fire
or to get rid of Dotson or that he had ever told Meeks that
Dotson was a
troublemaker. Tr. II 162, 186-187.
Calhoun also claimed that he never discussed Dotson with
Flynn.
Further, he stated that his "recommendations" to Flynn concerning
who should
be employed consisted of advising Flynn that someone wanted to
work and saying
something to the effect that "[i]f you have anything, there's a
man that's
available."
Tr II 166.
With regard to his knowledge of Dotson's contacts with
MSHA, Calhoun
claimed that the first he knew of the MSHA "raid" on Mine No. 15
(i.e., the
"blitz" inspection of February 6, 1991, that
Page 32
~649
Dotson requested and that resulted in criminal charges being
brought against
Stockwell) was when his deposition was taken for this
discrimination
proceeding in April 1992. Tr. II 162. He acknowledged, however,
that it was
"unusual" that he did not know sooner. Tr. II 199. Calhoun
claimed that if
he had known, he probably would have closed the mine. Tr. II
192.
Further, Calhoun claimed that until the MSHA investigator
took his
statement with respect to this case, he had no prior knowledge of
Dotson's
previous discrimination complaint against Stockwell. Tr. II 163.
Calhoun maintained that it was not a common practice for a
new operator
to hire all miners, previously employed at a mine and that he
knew of no
instance where a new contractor-operator hired 100 percent of the
previous
miners. He stated that while a new operator usually would check
with the
previous operator and would hire some of the previous miners, if
he operated
another mine, the new operator usually would bring with him some
of the miners
from the other mine. Tr. II 164. As Calhoun explained, a new
contractor-
operator is under no legal obligation to hire the previous
miners, and Calhoun
did not believe that a previously employed miner had a legitimate
expectation
to be hired, even if he had a good work record and was
recommended by his old
foreman. Tr. II 191. Calhoun stated, "I think . . . a coal mine
operator
ought to have his right to hire who he wants to for his mine.
He's the one
paying them. He's the one that works them and he should be the
one that makes
that decision." Tr. II 192.
APPLICABlE CASE LAW
In order to establish a prima facie case of discrimination
under Section
105(c) of the Act, a complaining miner bears the burden of
production and
proof to establish, (1) that he engaged in protected activity and
(2) that the
adverse action complained of was motivated in any part by that
activity.
Page 33
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2768 (1980),
rev'd on other grounds sub nom., Consolidation Coal Company v.
Marshall, 663
F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v.
United Castle
Coal Company, 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla-
Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf
of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981), rev'd on other
grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
The
operator may rebut the prima facie case by showing either than no
protected
activity occurred or that the adverse action was in no way
motivated by the
protected activity.
With regard to establishing that the adverse action
complained of was
motivated in any part by protected activity, the Commission has
acknowledged
the not-infrequent difficulty the Complainant faces in
establishing a
motivational nexus between
Page 34
~650
protected activity and the adverse action that is the subject of
the complaint
when the link between the protected activity and the adverse
action cannot be
supplied by direct evidence. The Commission has stated that such
"[d]irect
evidence of motivation is rarely encountered; more typically, the
only
available evidence is indirect . . .`Intent is subjective and in
many cases
the discrimination can be proven only by the use of
circumstantial evidence.'"
Chacon, 3 FMSHRC at 2510 (quoting NLRB v. Melrose Processing Co.,
351 F.2d
693, 698 (8th Cir. 1965)). In analyzing the evidence, whether it
be
circumstantial or direct, the Commission and its judges are free
to draw
reasonable inferences. Melrose, 351 F.2d at 698.
If the operator cannot rebut the prima facie case, it may
nevertheless
affirmatively defend by proving that it was also motivated by the
miners'
unprotected activity alone. The operator bears the burden of
proof with
regard to the affirmative defense. Haro v. Magma Copper Company,
4 FMSHRC
1935 (1982). The ultimate burden of persuasion does not shift
from the
Complainant. Robinette, supra; See also Boich v. FMSHRC, 719
F.2d 194 (6th
Cir. 1983); Donovan v. Stafford Construction Company, 732 F.2d
954 (D.C. Cir.
1984) (specifically approving the Commission's Pasula-Robinette
test). See
also NLRB v. Transportation Management Corporation, 462 U.S. 393,
397-413
(1983) (where the Court approved the NLRB's virtually identical
analysis for
discrimination cases arising under the National Labor Relations
Act).
COMPLAINANT'S PRIMA FACIE CASE
The Secretary claims that the evidence establishes that
Dotson engaged
in protected activity in January and February 1991, when he was
employed by
Stockwell. According to the Secretary, Dotson's protected
activities are: (1)
his complaints to Calhoun about unsafe mining practices during
the strike at
Mine No. 15, (2) his request to MSHA for an inspection of the
mine, (3) his
complaints to Stockwell about unsafe conditions and practices at
Page 35
the mine, and
(4) his filing of a discrimination complaint against Stockwell.
According to
the Secretary, Flynn's refusal to hire Dotson in August 1991 when
Flynn took
over Mine No. 50 was directly motivated by these activities. See
Sec.
Br. 18-19, 31-32.
PROTECTED ACTIVITY
Reviewing each of the alleged protected activities in
sequence, I
conclude the evidence establishes Dotson engaged in protected
activity while
employed by Stockwell with respect to Nos. 2, 3 and 4.
Page 36
~651
Dotson's Safety Complaints to Calhoun
The Secretary's first contention is that Dotson engaged in
protected
activity when he complained to Calhoun about safety conditions
during the
strike at Mine No. 15. I do not believe that the evidence allows
a conclusion
that Dotson actually made such a complaint. While, it is clear
that the
strike involved economic issues, the record does not establish
that it also
involved safety issues. Dotson maintained that his statement to
Calhoun that
"[I]f you don't want to run these mines halfway right . . . get
out of them
and let somebody in that will run them right because they will
run" referred
to both the withholding of taxes and to unsafe working practices
at the mine.
Tr. I 25-26. However, the statement is general and open to
interpretation.
On its face it does not clearly relate to safety nor does the
testimony
regarding the context in which it was delivered tie it to safety.
Certainly,
Calhoun, the only other person who was present and who testified,
did not
indicate that he understood a safety complaint had been made to
him at the
time. Indeed, he did not mention any complaint made by Dotson
nor did he
indicate that he understood the strike to involve any
safety-related issues.
See Tr. II 158-160. In fact, I find the weight of the evidence
to be that it
did not.
Dotson's rendition of how the strike was resolved
essentially
corresponds with Calhoun's. Tr II 158-160. As Dotson himself
testified,
Calhoun's involvement in the strike lead to its successful
resolution, when
Calhoun intervened with Stockwell on the miners' behalf and
advised redress of
their economic complaints. Tr. I 104. Even more telling, in my
view is the
fact, that on October 7, 1991, when Dotson filed his
discrimination complaint,
he did not mention his strike-related statement to Calhoun as a
reason for the
alleged discrimination. See C. Exh. 4 at 2. Further, although
four days later
he told the MSHA investigator that he guessed his statement "made
the man mad
Page 37
at me," he did not then link it with any expression of his safety
concerns.
C. Exh 5 at 9.
Dotson's Inspection Request
The Secretary next asserts that Dotson engaged in protected
activity
when in early February 1991, he requested an MSHA inspection of
Mine No. 15
because of what he believed to be unsafe mining practices. Sec.
Br. 20.
There is no doubt that Dotson made the request that resulted in
the inspection
of Stockwell's mine. Dotson's testimony in this regard was not
disputed by
the Respondents. Tr. I 29 and 105. Such a request is protected
activity
under the Act.
Page 38
~652
Dotson's Safety Complaints to Stockwell
and
Dotson's Discrimination Complaint against
Stockwell
The Secretary also asserts that Dotson's safety complaints
to Stockwell
in late February 1991 were protected. Sec. Br. 20. Dotson's
testimony to the
effect that he complained to Stockwell
on or about February 18, 1991, regarding mining practices
resulting in the
need for additional roof support was not refuted. Tr. I 46-47.
It was, of
course, these complaints that lead to the alleged order from
Stockwell to
either continue the practice or "go to the house" and Dotson's
resulting
short-lived discrimination complaint against Stockwell.
I accept Dotson's unrebutted testimony concerning his
complaints to
Stockwell. His testimony at trial describing his discussion with
Stockwell
essentially corresponded with his nearly contemporaneous account
of the same
discussion in his discrimination complaint. See C. Exh. 2. A
miner's safety
complaints when reasonable and made in good faith are protected.
Further, the
filing of a complaint of discrimination is protected activity. I
conclude,
therefore, that when Dotson complained to Stockwell and when he
filed the
complaint charging Stockwell with discrimination he engaged in
activity that
cannot be the basis for subsequent retaliation.
ADVERSE ACTION
Having established protected activity, Dotson must prove
that he
suffered an adverse action. The adverse action of which Dotson
complains is
that he was denied employment by Flynn at Mine No. 50, when Flynn
took over as
the operator of the mine. Dotson and Flynn agreed that Dotson
sought and was
denied employment by Flynn and Lad.
I credit Dotson's testimony that he telephoned Flynn on or
about
Wednesday, August 14, 1991, and asked for employment. Dotson had
a specific
recollection of this telephone conversation, while Flynn had
none. Tr. I 67-
Page 39
68, Tr. II 62. In addition, approximately two months after the
conversation,
Dotson told the MSHA investigator that he had made the call. C.
Exh. 5 at 4.
Dotson credibly stated that Flynn said that he would get back in
touch with
Dotson, but he did not, and Dotson was never hired. Id.
In addition, Dotson testified that on Friday, August 16,
1991, he went
to Mine No. 35 and spoke with Flynn about working for Flynn at
Mine No. 50.
Tr. I 69-70. Flynn agreed that Dotson had come to Mine No. 35 on
August 16.
Tr. II 56-57. Although, Dotson and Flynn gave decidedly
different versions of
what transpired at the meeting, both agreed that the reason
Dotson was at the
mine was to seek employment. Dotson also stated that
Page 40
~653
after Flynn took over operating Mine No. 50 and during the time
that Dotson
was employed as a security guard, he asked Flynn for employment
whenever he
would see Flynn. Tr. I 73. Flynn did not testify regarding
these contacts
with Dotson and I credit Dotson's testimony. It is clear that
Dotson was
anxious for work and I find it reasonable to believe that he
asked Flynn about
employment whenever the opportunity to do so presented itself.
The record thus
establishes that Dotson repeatedly sought employment at Mine No.
50, and I so
find. An adverse action is an act of commission or omission by
an operator
that subjects the affected miner or applicant for employment to
discipline or
to a detriment in an employment relationship. See Secretary on
behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC at 1847-48. Failing
to be hired by
Flynn and Lad meant that Dotson had no employment relationship,
which was
certainly a detriment, to say the least. It is clear, therefore,
that Dotson
established he was subjected to an adverse action.
Having established protected activity and adverse action,
the next
question is whether Dotson, also, established that in denying him
employment,
any or all of the Respondents were motivated by his protected
activity.
MOTIVATION
Dotson presented no direct evidence that he was denied
employment
because he had complained about safety conditions, requested an
inspection and
had filed a discrimination complaint while he was employed by
Stockwell.
However, as noted, the Commission has recognized that such
evidence is rarely
available to a complainant and has made clear that a finding of
discriminatory
motivation may be made on the basis of circumstantial evidence.
Chacon, 3
FMSHRC at 2510. The Commission has listed some of the more
common
circumstantial indicia of discriminatory intent: (1) knowledge of
the
protected activity; (2) hostility or animus towards the protected
activity;
(3)coincidence in time between the protected activity and the
Page 41
adverse action;
and (4) disparate treatment of the complainant. Chacon, 3 FMSHRC
at 2510.
A logical approach for analysis of a motivation question is
to accept as
a starting point that something, at this point unknown, motivated
Flynn to
reject Dotson as an employee and to deduce what it was.(Footnote
11) This is
the approach adopted by the 8th
11 The Respondents point out, correctly, I think, that this is
not a case
of an employee seeking to be rehired. When Meeks went out of
business, his
employees' jobs ceased. Thus, Dotson's employment with Meeks had
ceased.
Flynn was a new operator. In general, I agree with Calhoun that
a new
contractor-operator is under no legal obligation to hire miners
who had
Page 42
~654
Circuit in Melrose, 351 F.2d at 698-700, and it is one that
courts frequently
have followed.
The approach begins with the elimination of certain
motivational factors
that are usually offered in these types of cases. There is no
suggestion that
Dotson was incompetent, had a record of absenteeism, had a poor
safety record
or that Flynn or Calhoun had any personal animosity (i.e.,
extra-mining
related animosity) toward Dotson.
Dotson had been mining coal since 1975. In that capacity
he had engaged
in a wide variety of tasks. After Dotson left his job at Faith
Coal Company,
he was hired shortly thereafter by Meeks. Meeks described Dotson
as a man of
"excellent" skills, attitude, and attendance, and I credit his
testimony. Tr.
I 193. Afterall, it would hardly have been in Meeks's interest
to employ
someone who did not have these qualities. In addition, Donnie
Meeks, who was
Dotson's foreman and thus should know, described Dotson as a
"good miner" with
"good" skills. Tr. I 237. Further, Dotson's reputation as a
good, willing
and reliable worker was confirmed by Harvey, another former
supervisor of
Dotson. Tr. II 9-10.
Also, there is no suggestion in the record that Flynn's
failure to hire
Dotson was the result of any personal hostility. There was no
testimony that
prior to Flynn taking over Mine No. 50, he and Dotson were even
acquainted.
Moreover, there was no indication in the record that Calhoun had
any extra
mine-related animus toward Dotson. As described in the record,
Calhoun's
knowledge of and contacts with Dotson were based solely on
Dotson's mining
activities, first, with Stockwell, and second, with Meeks.
Still, the fact remains that Flynn did not hire Dotson, and
the search
for the reason why continues with an examination of the customary
hiring
practice and a determination of whether Flynn's failure to hire
Dotson
represented a departure from that practice. If so, motivation
may be
Page 43
suggested in the manner and the reasons proffered for Dotson's
rejection.
11(...continued)
previously worked at the mine and that a coal mine operator has
the right to
hire whomever he wants. There is a caveat, however -- hiring
must be done
according to law and cannot be denied because of protected
activity.
The right to hire or not to hire is not an absolute
right, and the
Act makes very clear that it is not only miners but also
applicants for
employment who cannot be discriminated against because of
protected activity.
The fact that Dotson was seeking work as an applicant for
employment rather
than as a miner subject to rehire, does not alter the protections
afforded him
by Section 105(c) or the fact that he cannot be denied employment
solely on
the basis of protected activity.
Page 44
~655
Evidence regarding hiring practices by a new
contractor-operator was in
conflict. Dotson, who spoke from the perspective of a miner who
had worked on
the mountain and for several different contractor-operators,
believed that it
was just common sense for a new operator to hire the previous
crew. As he
pointed out, these are the people who know the mine best.
Tr. I 145. Meeks' testimony supports by inference what Dotson
believed. He
stated that when he decided to shut down his operation at Mine
No. 50 he told
Calhoun that "there's a real good bunch of men working here" and
that Calhoun
replied "I want to get them all back to working." Tr. I 198.
Like Dotson,
Meeks struck me as an honest and forthright individual, and I
believe his
account of this conversation.
Donnie Meeks' testimony, also, supports Dotson's "common
sense" theory
of hiring. He stated that it would be advantageous to hire a
roof bolting
machine operator who was familiar with the roof conditions in the
mine because
such a person would be aware of the mine's particular roof
problems. He
believed this to be especially true of Mine No. 50, which had a
roof fall
problem. Tr I 243-244.
Flynn emphasized that in his experience he had never known
of a
situation wherein a new operator took all previous workers. Tr.
I 65-66. I
do not doubt this to be a fact and, indeed, Flynn supported his
statement with
several examples of situations in which few pervious miners were
hired. Tr. I
67-68. However, his testimony in this regard is not necessarily
inconsistent
with that of Dotson and Meeks. In the situations that he cited,
Flynn did not
explain why previous miners were or were not hired, and,
obviously, there
could be any number of reasons. Nor was Calhoun's testimony,
necessarily,
inconsistent with the essence of Dotson's and the Meeks'.
Calhoun explained
that the new operator will check with the previous operator and
will hire some
of the old employees but that he knew of no instance where 100
percent of the
old employees were hired. Tr. II 164.
Page 45
I do not understand Dotson and the Meeks' to have testified
that when an
operator goes out of business and another operator reopens the
mine the new
operator will hire all previous employees. Dotson himself could
not think of
such a situation. Tr. I 148. Rather, I understand them to have
stated that it
is common for most of the miners to be hired, as indeed happened
at Mine No.
50, and I so find. Dotson's observation that the previous miners
are the ones
who know the mine best, Donnie Meek's correlating acknowledgement
of roof
control problems at Mine No. 50 and the advantages of hiring
miners who know
the roof, and Meek's statement to Calhoun that he had good men at
the mine and
Calhoun's response that he wanted to get all of them back to
work, convince me
that such was the practice.
Page 46
~656
That being the case, when a previous miner is not hired
while virtually
all his peers are, the motive for failing to hire the left-out
miner must be
explained. In other words, here, where Flynn's failure to hire
Dotson
represented a departure from the norm, the question is why?
The Respondents offer a business justification -- that
Dotson applied
for a roof bolting job, that there were two roof bolter positions
available,
that the positions were filled when Dotson applied, and that when
one of the
hired roof bolters unexpectedly did not show up for work, Flynn,
on the
recommendation of Donnie Meeks, hired someone other than Dotson.
I conclude that this justification is not established by
the evidence
and that it is pretextual. I have accepted Dotson's testimony
that he called
Flynn on August 14, and asked about a job and was told that Flynn
would get
back to him. I also accept his testimony that Flynn asked him
what he could
do and that Dotson told Flynn that he could do anything. Tr. I
-
(Flynn
could not recall this telephone conversation. Tr. II 62.) I
also believe
that when Dotson went to the mine on Friday, August 16, he was
asked about the
jobs that he had held and that Dotson indicated that he had run a
roof bolter.
Tr. I 131. However, I do not believe that Dotson indicated to
Flynn he was
applying to work only as a roof bolter.(Footnote 12) Such a
statement would
have been self-limiting and, as Dotson explained, he needed work.
Rather, it
seems likely that Dotson indicated that he would work, also, as a
roof bolter.
In any event, I accept Donnie Meeks testimony that he spoke with
Flynn the day
his father went out of business and gave Flynn a list of names of
the miners
and a list of all jobs that the men could do. Tr. 236. Thus,
when Dotson and
Flynn met on August 16, I believe that Flynn already knew that
Dotson was not
limited to operating a roof bolting machine, but, as Donnie Meeks
explained
that Dotson could do "anything else that needed to be done." Id.Flynn maintained that when Shipley, one of the roof bolters
Page 47
he had
hired, failed to report for work he selected Lawson over Dotson
on the basis
of Donnie Meek's recommendation that Lawson was the better roof
bolter. Tr.
II 60-61. However,I find the credibility of this assertion
undermined by
Flynn's failure to
12 It is important to note that during the course of the
testimony I was
struck by Dotson's sincerity and lack of guile. While I found
him to be
unsophisticated and naive, I also found him to be truthful.
Page 48
~657
mentioned it to the MSHA investigator when he was asked why
Dotson was not
hired. It is afterall, the major reason why the Respondents now
contend
Dotson was refused employment.
As the Secretary rightly points out, Flynn ultimately hired
all of the
previous crew except Dotson and Johnson. See Sec.
Br. 26-27. There was a legitimate business reason for not hiring
Johnson.
The record discloses none for refusing Dotson employment.
Therefore, accepting the premise that something must have
motivated
Flynn to deny Dotson employment, and the proffered reasons for
the refusal
having been eliminated by the evidence and the reasonable
inferences drawn
therefrom, the search for motive must continue by analyzing other
actions of
Calhoun and Flynn relating to Dotson. When these are reviewed, I
believe the
conclusion is inescapable that in refusing to hire Dotson, Flynn
was
responding to Calhoun's directive and was motivated, as was
Calhoun, by
Dotson's protected activity.
In the first place, I conclude the evidence establishes
that Calhoun was
seeking to "blacklist" Dotson because of his safety complaints to
Stockwell
and his, subsequent, discrimination complaint. As I have found,
Dotson
engaged in protected activity, and I believe, despite Calhoun's
denials, that
Calhoun was fully aware of that activity. The picture of
Calhoun that
emerged at trial was of a person actively interested and involved
in the daily
affairs of TCC's contractors as those affairs related to
production. Calhoun
explained the interest TCC had in the development and production
of its
contractor's mines
(Tr. II 152-154) and this was especially true of Mine No. 50.
See Tr. I 179-
183; Tr. II 155-156 and 170. I think that it is fair to conclude
that if a
matter affected production, Calhoun knew of it.
It was Calhoun, afterall, who took the lead in resolving
the strike at
Mine No. 15, a resolution that allowed production to resume. It
was Calhoun
Page 49
who told Flynn that he wanted Mine No. 50 to be a big producer of
coal. Tr.
II 82. Certainly, MSHA's "blitz" inspection at Mine No. 15,
coming as it did,
on the heels of the strike, and resulting in the issuing of
notices and orders
at the mine and eventually in criminal charges against Stockwell,
impacted
production and must have been known almost immediately to
Calhoun. Calhoun
stated that it was "unusual" that he did not
Page 50
~658
know of the inspection until his deposition was taken in April
1992. Tr. II
- I find it more than unusual; I find it incredible. Tr. II
-
Quite
simply, I believe that he knew about it, and knew soon after it
happened.(Footnote 13)I also find incredible Calhoun's assertion that he did not
know about
the discrimination complaint Calhoun filed against Stockwell
until the MSHA
investigator took his statement regarding the present
discrimination
complaint. Tr. II 163. Again, the closeness of Calhoun's
relationship with
the daily operations of TCC's contractor-operators makes it
permissible to
infer, in my view, that Calhoun was well aware of Dotson's
complaint.Being aware of these activities, activities that
potentially impinged
upon the smooth operation of TCC's contractor, I conclude that
Calhoun
undertook to bar Dotson from employment on the mountain and that
Flynn
followed his lead. I believe that Calhoun's animosity toward
Dotson because
of his safety-related activities is shown by Calhoun's attempt to
have Meeks
"get rid of" Dotson and, by his offer, to arrange a meeting
between Meeks and
Stockwell so that Stockwell could tell Meeks "what kind of a man
. . . Dotson
was. " Tr. I 193-194, 221.Calhoun, of course, stated that although he mentioned
Dotson to Meeks it
was in the context of a response to Meek's question concerning
who had been on
the picket line at Mine No. 15. I do not discount the fact that
if in fact
this conversation occurred in close proximity to the strike, the
subject of
the strike may have arisen in the course of the Meeks-Calhoun
conversation.
It is logical that Meeks would have been interested in the
strike. However,
Calhoun's denial that he ever told Meeks to fire or to get rid of
Dotson or
told Meeks that Dotson was a troublemaker rings false when viewed
in the
context of what must have been Calhoun's animosity toward Dotson
for his
activities impinging upon production at Mine No. 15. Tr. II,
162, 166, 187-
Page 51
186.
13 Although, I believe that Calhoun knew of the MSHA
inspection on February
6, 1991, at Mine No. 15; I do not believe that there is
sufficient evidence of
record to conclude that he knew Dotson requested the inspection.
Dotson
admitted his suspicions in this regard were simply -- suspicions.
Tr. I 111-113. Moreover, the Mine Act would prevent MSHA's
inspectors from
divulging the name of a person requesting an inspection, and I
assume, unless
proof to the contrary is offered, that MSHA complies with the law
it
administers. (There is, of course, nothing that would have
prevented
Stockwell from telling Calhoun about Dotson's safety complaints
to Stockwell
and Dotson's discrimination complaint against Stockwell.) Still,
Calhoun's
denial of any knowledge of the inspection until he was deposed in
April 1992
is patently incredible and, in my view, casts a long shadow over
the
credibility of the rest of his testimony.
Page 52
~659
Rather, I believe Meeks' version of what Calhoun said to
him. As I have
stated Meeks impressed me as an honest and forthright witness.
At one time he
impressed Calhoun too, for Calhoun testified that Meeks had a
good reputation
when he worked for TCC and that he had considered Meeks to be a
reliable
business partner for the corporation. Tr. II 173. Although,
Meeks was,
subsequently, involved in a legal dispute with TCC, at the time
the Calhoun-
Meeks conversations occurred, they appear to have been on good
business terms
and were working closely together.
Given the fact that I conclude the Meeks-Calhoun
conversations occurred,
essentially as Meeks reported them, and given the fact I also
conclude that
Calhoun was aware of Dotson's safety complaints and his
discrimination
complaint against Stockwell; there is no other logical
explanation offered or
suggested by the record for Calhoun's desire to have Meeks "get
rid of" Dotson
than Dotson's protected activity.
Further, I agree with counsel for the Secretary that
Calhoun's urging
that Meeks get rid of Dotson for engaging in protected activity
supports an
inference that he, likewise instructed Flynn not to hire Dotson.
Sec. Br. 32.
As the evidence establishes, Flynn was subject to Calhoun's
influence and
monitoring; and as I have found, his excuses for failing to hire
Flynn are
otherwise pretextual.
CONCLUSION
Accordingly, I conclude that Dotson has established that he
engaged in
activity protected under the Act when he complained to Stockwell
regarding
safety conditions at Mine No. 15 and when he filed a
discrimination complaint
against Stockwell. Further, I conclude that Calhoun knew of
these activities
and was motivated by them to have Dotson "blacklisted" -- i.e.,
to have him
removed from his job by Meeks and, failing that, to have him
denied employment
by Flynn. I also conclude that Flynn and through Flynn, Lad, in
denying
Page 53
Dotson employment, were acting at Calhoun's behest and were
motivated by the
same protected activities. Finally, I conclude that the
proffered reasons for
Flynn's failure to hire Dotson are pretextual and that the
Respondents have
not established that they were in no way motivated by Dotson's
protected
activity or that they were only motivated by unprotected activity
on Dotson's
part.
Therefore, I hold that in failing to hire Dotson, the
Respondent's
violated Section 105(c)(1) of the Act.
Page 54
~660
ORDER
Counsels for the parties ARE ORDERED to confer with each
other during
the next fifteen (15) days with respect to the remedies due
Dotson, and they
are encouraged to reach a mutually agreeable resolution of the
matter. Any
stipulations or agreements in this regard shall be filed with me
within the
next thirty (30) days. In discussing any back pay due Dotson,
counsels are
requested to keep in mind Dotson's testimony that subsequent to
being denied
employment at Mine No. 50, he was offered a job at Mine No. 30,
and he
declined to accept the offer. Tr I 134-137.
In the complaint of discrimination the Secretary requests
"[a]n order
assessing an appropriate civil penalty against Respondent . . .
not to exceed
$50,0000.00". This proposal, void as it is of any reference to
the statutory
civil penalty criteria, is equivalent to no proposal.
Accordingly, Counsel
for the Secretary IS ORDERED within ten (10) days to submit a
penalty proposal
supported by the Secretary's contentions with respect to the
relevant
statutory criteria set forth in Section 110(a) of the Act, 30
U.S.C. 820(a),
and counsel for the parties are requested to confer regarding
this aspect of
the case during their discussions with respect to the remedies
due Dotson.
In the event counsels cannot agree regarding the remedies
and proposed
civil penalty, they are to notify me no later than the end of the
referenced
fifteen (15) day period. Counsels ARE FURTHER ORDERED at that
time to state
their specific areas of disagreement and if they believe that a
further
hearing may be required on the remedial aspects of this matter,
to state that
as well. Counsels may notify me orally, but the notification
must be
confirmed in writing that same day.
I retain jurisdiction in this matter until the remedial
aspects of this
case are resolved and finalized. Until such determinations are
made and
pending a finalized dispositive order, my decision in this matter
Page 55
is not
final. In addition, payment of any civil penalty by the
Respondents is held
in abeyance pending a final dispositive order.
David F. Barbour
Administrative law Judge
(703) 756-5232
Page 56
~661
Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, U.S.
Department of Labor,
4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
Michael W. Boehm, Esq., Spears, Moore, Rebman and Williams, 801
Pine Street,
P.O. Box 1749, 8th Floor, Blue Cross Building, Chattanooga, TN
37401
(Certified Mail)
Thomas S. Kale, Esq., Spears, Moore, Rebman and Williams, 801
Pine Street,
P.O. Box 1749, 8th Floor, Blue Cross Building, Chattanooga, TN
37401
(Certified Mail)
/epy
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