Coalfield Services

Plain-English summary

William Denny Griffitts, a welder and maintenance worker for Coalfield Services, reported that he was exposed to a serious safety hazard while working inside a coal chute. He reported the incident to company officials and to MSHA, and the company later issued a suspension notice with the intention to terminate him for attendance and notification-policy violations. Judge Irwin Schroeder found that the Secretary met the temporary reinstatement standard because Griffitts had engaged in protected safety complaints and the timing and circumstances supported an inference of discrimination. The judge ordered Coalfield Services to reinstate Griffitts in his prior position at his prior rate of pay until the Secretary made a final determination on discrimination.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1).
• Outcome: The application for temporary reinstatement was granted, effective immediately and continuing until the Secretary's final discrimination determination.
• Key point: A miner's good-faith safety complaint to company management can be protected activity even when the complaint is also reported to MSHA.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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



                                      April 16, 2002

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION, (MSHA), :
On behalf of WILLIAM DENNY : Docket No. VA 2002-32-D
GRIFFITTS, : NORT CD 2002-07
Complainant :
v. :
:
COALFIELD SERVICES, INC., : VP 8 Mine
Respondent : Mine ID 44-03795 R58

                                       DECISION

Appearances: Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary
Kurt J. Pomrenke, Esq., Coalfield Services, Inc., Bristol, Virginia,
for the Respondent

Before: Judge Schroeder

                                      Introduction

   This matter is before me on the application filed by the Secretary on behalf of

Mr. William Denny Griffitts, a miner previously employed by Coalfield Services, Incorporated, the
Respondent. On March 26, 2002, the Respondent requested a hearing on the application. The
hearing was held in Abingdon, Virginia on April 5, 2002. Testimony was received and oral
arguments made. Because of the limited time available, post-hearing briefs were not submitted.

                                       Background

    This case arises under the “whistle blower” section of the Federal Mine Safety Act, section

105(c)(1). The law prohibits discrimination in employment on the basis of the exercise of any
right assured by the Mine Safety Act, and has been specifically interpreted to include protection to
persons that make reports or complaints of violations of safety requirements in the

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operation of a mine subject to the jurisdiction of the Secretary. Secretary of Labor ex rel
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). When a person submits a
complaint of discrimination under this section, the Secretary is required to perform an initial
investigation. If the investigation establishes to the satisfaction of the Secretary that the complaint
is “not frivolous”, or “not clearly without merit”, the Secretary is required to apply to the
Commission for a order temporarily returning the complaint to the status quo ante any allegedly
discriminatory action. Jim Walter Resources, Inc. v. FMSHRC, 920 F2d 738 (11th Cir. 1990)
This order is limited in duration to permit the Secretary to complete a more thorough
investigation of the alleged discrimination and to decide whether to pursue more permanent relief.
This matter is not intended as a final determination of whether impermissible discrimination
occurred but rather whether the complaint is deserving of the temporary relief sought by the
Secretary in the application filed on March 26, 2002.

                                      Factual Findings

 At the hearing, the parties stipulated that the facts support the conclusion that the

Commission has jurisdiction to consider this application for temporary reinstatement.

     Prior to February 18, 2002, Mr. Griffitts had been employed by Coalfield Services for

more than 14 years. His nominal occupation is welder, but the variety of construction and
maintance work done by his employer required him to perform a variety of functions. On
February 18, 2002, Mr. Griffitts was a member of a small crew under the supervision of
Mr. Mike Powers assigned to replace metal liner plates in a chute which carried coal from a
production hoist to a conveyor belt to the processing plant. The plates are replaced periodically
because of the wear caused by the sliding of coal. To perform this work Mr. Griffitts climbed
up the inside of the chute to near the point coal is normally dumped into the chute. While
Mr. Griffitts was in this exposed location, the production hoist was activated and one of the skips
which carry coal to the chute entered the dump position. He observed a sheet of metal which
appeared to be loose in the skip. It appeared to him that with very little more movement of the
skip the metal sheet would be dumped into the chute and cause him serious injury, perhaps “cut
his legs off.”

   Mr. Powers later testified that the lining sheets in the skip were also in need of

replacement and may have come partially unfastened from the frame. He was of the opinion that
Mr. Griffitts was at no time in any actual danger. From the testimony as a whole I conclude
Mr. Griffitts had a reasonable belief that his health and safety were in immediate and serious peril.

   Mr. Griffitts exited the chute as quickly as possible and began to draw attention of those

present to his belief that he had been placed in danger by the operation of the hoist without
adequate communication and awareness of his exposure in the chute. His efforts to regain his

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composure following this incident were unsuccessful. He went home after informing his
supervisor, Mr. Powers. As Mr. Griffitts was leaving the job site, Mr. Powers asked him whether
he would return the next day. Mr. Griffitts replied that he did not know when he would be back.

    The following day, February 19, 2002, Mr. Griffitts made two telephone calls, one to the

Safety Director of Coalfield Services, and one to the Human Resources Director. He advised the
Safety Director of the danger he had been exposed to in the chute. He advised the Human
Resources Director that he would not be in to work and did not know when he would be able to
return to work.

     On February 20, 2002, Mr. Griffitts went to work late and apparently did not call his

supervisor to advise him of the late arrival. He did call the local MSHA Office and reported his
concerns with the way the hoist was operated while he was in the chute to perform maintance
work. As a result of this call, the MSHA inspector normally responsible for this mine made a visit
to the mine to inquire into the incident. The inspector, who testified at the hearing, did not
identify the person responsible for the inspection. Mr. Powers, however, indicated he strongly
suspected Mr. Griffitts had called MSHA. He questioned Mr. Griffitts about that possibility and
Mr. Griffitts denied having made a call to MSHA.

     Mr. Griffitts finished the work day on February 20, and worked his usual shift on both

February 21 and February 22. After completing his shift on February 22, 2002, Mr. Griffitts
received a notice of suspension with the intention to terminate. The notice was a formality
required under a collective bargaining agreement with the UMW before a miner can be
discharged. The notice of suspension listed two reasons for discharge; (1) failure to report for
work, and (2) failure to follow company policy for notification of an absence from work.
Company policy on notification apparently included telephone notification of specified company
officials, including the Director of Human Resources.

      On February 21, 2002, Coalfield Services had received a citation from the MSHA

inspector for the incident involving Mr. Griffitts on February 18. The citation did not identify Mr.
Griffitts as the complaining party.

   Mr. Griffitts’ termination became official on February 23, 2002.

                                         Analysis

    I easily conclude the Secretary has established the elements of a discriminatory discharge

as tested under the “not frivolous” standard of Section 105(c). Mr. Griffitts exercised his right to
raise safety concerns of a reasonable nature to both company management and to MSHA. He
was discharged from his employment reasonably close in time to the exercise of this right. He
was discharged under circumstances in which a reasonable inference can be drawn that
management was aware of his exercise of this right.

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    Management response to the application for temporary reinstatement has two parts. First,

Coalfield Services argues business justification in failing to follow company policy on notification
of absence. This is embellished with unsupported references to prior similar violations of
company policy. Second, Coalfield Services claims it could not have discriminated
against Mr Griffitts since it did not know for certain that he had complained to MSHA until long
after the discharge became effective.

    Applying again the “not frivolous” standard to these objections, it is reasonably clear that

Mr. Griffitts made a reasonable good faith effort to comply with company policy on notification
of absence from work. He called the corporate office and spoke to one of the people authorized
by company policy to receive such calls. While he was apparently vague on the period of
intended absence he did put the company on notice that he would be absent for reasons related to
the incident which he reported to the company as a safety concern. For the limited purpose of the
application for temporary reinstatement, the company has not established a compelling defense on
this point.

     As to the time of knowledge on the part of Coalfield Services of the exercise of rights

under the Mine Safety Act, these rights are not limited to reports to MSHA. It is clear under
Commission precedent that a report to a supervisor or a report to a Safety Director is protected
activity. Coalfield Services knew long before it composed a discharge notice that Mr. Griffitts
had exercised these protected rights. Where an employee has exercised rights under the Mine
Act, management has a heavy burden of showing an independent business justification for adverse
action against the employee. Coalfield Services has not made a credible showing of business
justification in this instance.

                                          Order

     For the reasons given above, the application for temporary reinstatement filed by the

Secretary on behalf of William Denny Griffitts is granted, and the Respondent Coalfield Services,
Inc., is directed to reinstate Mr. Griffitts in his prior position at his then rate of pay.
Reinstatement is to be effective on the date of this order and to continue until the Secretary makes
a final determination as to discrimination within the period afforded by the statute.

                                  Irwin Schroeder
                                  Administrative Law Judge




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Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)

Kurt J. Pomrenke, Esq., Elliott, Lawson and Pomrenke, 110 Piedmont Ave., P.O. Box 8400,
Bristol, Virginia 24203 (Certified Mail)

William D. Griffitts, P.O. Box 248, Saltville, VA 24370 (Certified Mail)

S. Scott Aker, President, Coalfield Services, Inc., 2942 Peppers Ferry Road, Wytheville,
VA 24382 (Certified Mail)

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