Kenneth W. Hall v. Clinchfield Coal Company

Plain-English summary

Kenneth W. Hall, a section foreman at Clinchfield Coal Company's McClure No. 1 underground mine, complained about a line-curtain and roof-bolting practice and later sought a transfer to surface work. Judge James A. Broderick found that Hall's safety complaints were protected activity and that the transfer denial, benefits disputes, and discharge were adverse actions. He found no evidence that any of those actions was motivated by Hall's protected activity. The judge dismissed the discrimination proceeding, and the Commission later affirmed.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: Hall's discrimination complaint was dismissed.
• Key point: Protected safety complaints do not establish discrimination without evidence that the employer's adverse action was motivated by those complaints.

Full text (FMSHRC public release)

CCASE:
K.W. HALL v. CLINCHFIELD COAL
DDATE:
19850927
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

KENNETH W. HALL, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. VA 85-8-D
v. MSHA Case No. NORT CD
85-4
CLINCHFIELD COAL COMPANY,
RESPONDENT McClure No. 1 Mine

                              DECISION

Appearances: Kenneth W. Hall, Castlewood, Virginia, pro se;
Louis Dene, Esq., Abingdon, Virginia, for
Respondent; James Leonard, Esq., Office of the
Solicitor, U.S. Department of Labor, Arling-
ton, Virginia, appeared specially for the
Secretary of Labor.

Before: Judge Broderick

                       STATEMENT OF THE CASE

 Complainant filed a complaint with the Commission under

section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 815(c) (the Act) alleging that (1) his request for a
transfer to an above-ground job was ignored, (2) his insurance
was stopped, and (3) he was suspended and ultimately discharged,
all because he refused to comply with his employer's order to
violate a federal law concerning the distance a line curtain was
to be maintained from the coal face.

 Respondent filed a Motion to Dismiss on the grounds that the

complaint was not timely filed, and that it did not state a cause
of action under the Act. The motion was denied by order issued
April 3, 1985.

 Pursuant to notice, the case was heard in Abingdon, Virginia

on May 29, 30, and 31, 1985. Jerry Yates, Jr., Billie L.
Williams, Eugene McCoy, Ronnie Dean Deel, Ray Boggs, Jeffrey H.
Greear, Roy Glovier, and Kenneth W. Hall, testified on behalf of
Complainant; Thomas Asbury,

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Richard Light, Michael Wright, Wayne Fields, Henry Kiser, and
Joseph Pendergast testified on behalf of Respondent.

 The Secretary of Labor appeared specially on behalf of

Ronald W. Franks, Vearl R. Hileman, Gary L. Roberts, Gerald E.
Sloce, Donnie H. Stallard, Joseph R. Tankersley and Frank Young,
all employees of the Mine Safety and Health Administration who
had been subpoenaed on behalf of Respondent, and moved that the
subpoenas be quashed.

 The motion was argued on the record and the Secretary filed

a memorandum of law. I granted the motion to quash on the ground
that the testimony which might be elicited from the subpoenaed
inspectors and investigator would not be helpful in deciding the
issues before me in this case.

 Both parties filed post hearing briefs following the close

of the record. I have carefully considered the entire record and
the contentions of the parties, and make the following decision.

FINDINGS OF FACT

 Respondent is the owner and operator of an underground coal

mine in Dickenson County, Virginia known as the McClure No. 1
Mine. The mine is a shaft mine and was opened in 1977. At all
times pertinent to this proceeding, the mine height was
approximately 5-1/2 feet, with the exception of one section
where it varied from 4 to 7 feet. The mine was classified as a
gassy mine, and liberated substantial amounts of methane,
primarily from the coal faces.

 The coal is extracted by continuous mining and long wall

mining. The continuous mining operations are used to cut panels
for the long wall operations. The coal is removed from the mine
by belt haulage.

 When the mine was opened, the working sections were

ventilated by auxiliary fans and tubing installed on the row of
bolts next to the rib and which was advanced by a "slider" as the
miner cut in the coal face. There was sufficient height in the
coal seam to permit travelling under the tubing. When the coal
height declined in 1982 to the point where the machinery could
not operate under the tubing, the method of ventilation was
changed and line curtains were used. The procedure followed
thereafter is as follows: After the coal is cut, the roof bolters
come to the face area. They first install a bolt approximately 3
feet from the rib. When the rib bolt is being installed, the
curtain is removed to the last row of permanent supports because
the roof bolting

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machine canopy would otherwise force the curtain into the rib and
cut off the ventilation to the face. After the rib bolt is
installed the line curtain is advanced to this bolt and the
center bolts are installed. Thus, in the case of cuts exceeding
10 feet, during the installation of the rib bolt, the curtain is
not maintained to within 10 feet of the face. Prior to March 6,
1984, the approved ventilation plan required that the line
curtain be maintained to within 10 feet of the face while bolts
were installed. On March 5, 1984, Respondent requested a revision
of the plan to permit it to remove the curtain to the last row of
permanent supports while the rib bolt is being installed. The
revision was approved by the Mine Safety and Health
Administration on March 6, 1984.

 Complainant began working in the coal mining industry from

September 1971 when he was hired by Respondent as a roof bolter
and utility man. He worked for other coal companies from April
1973 until March or April 1979. He was certified by the State of
Virginia as a qualified mine foreman in 1976 and worked as a
section foreman for Big Ten Coal Company for about a year in
1978. He also worked as a mine foreman for United Castle Coal
Company from October 1978 to March or April 1979. He was rehired
by Respondent in September 1981 as a section foreman, and was
placed in charge of a production crew, using a continuous miner.
Shortly after he began working, he questioned the General Foreman
about the practice of removing the line curtain while bolting,
and was told that the company had permission to do it.
Complainant's crew followed the bolting procedure outlined above.

 In June 1983 an explosion occurred at the subject mine as a

result of which Complainant's brother was killed. Complainant did
not return to work following the explosion until August 1983. In
the interim he was treated at a psychiatric clinic. On January 9,
1984, Complainant sustained a back injury at work and was off
work until approximately February 19, 1984.

 After he returned to work in February 1984, at least three

roof bolters expressed concern to Complainant about the practice
followed in removing the curtain from the jack when putting up
the first row of bolts. Apparently bolters had complained to
Complainant and to other foremen about this practice for some
time before that. Complainant asked the day shift General Mine
Foreman, Johnny Kiser, about the practice and was told that the
company had permission to do it. He also questioned two MSHA
inspectors, Joe Tankersley and Mr. Hileman, the first of whom
said the practice was legal and the second that it was not legal.

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A few days after he spoke to Kiser, Complainant and the other
shift foremen were called in to the office of the company safety
inspector Wayne Fields. The meeting was called at the request of
an MSHA Inspector who told Fields that roof bolters and section
foremen had raised questions about the roof bolting procedure
being followed in the mine. The Inspector asked Fields to
instruct the men not to ask questions about the procedure in the
presence of an inspector until the ventilation plan could be
modified. Fields told the foremen not to raise the issue or
discuss it with union personnel in the presence of a Federal
Inspector. He also instructed them to continue bolting in the
usual manner. Complainant, however, shortened his cuts to ten
feet in order to avoid what he considered an illegal procedure.
As I stated above, the company sought a revision of the plan on
March 5, 1984, and MSHA approved the revision on March 6, 1984.

 About March 1, 1984, the shift prior to Complainant's had

left an 18 feet deep cut, and Complainant's bolting crew refused
to bolt it, because it was too deep. Complainant called Mike
Wright, the General Mine foreman, who came to the area and
persuaded the bolters to bolt the place.

 March 2, 1984 was the last day Complainant worked at the

subject mine. He left work because of anxiety, hyperventilation
and other associated emotional problems. He told Richard Light,
Mine Superintendent, that he could not function as a mine foreman
because of his emotional problems and that he intended to consult
a psychiatrist. Complainant testified that he told Light that he
was afraid of being sent to jail if someone were hurt or killed
because Complainant ordered him to violate the law concerning the
roof bolting procedure. Light testified that Complainant briefly
mentioned the roof bolting procedure being followed but denied
that he related his emotional problems to that situation.
Whatever the exact conversation between the men, I find that
Complainant was concerned about the procedure being followed
which he felt was violative of the Mine Safety law, and that he
claimed that he could not work in part because of that situation.
Light did not talk to Complainant thereafter until the complaint
involved here was filed with MSHA.

 Complainant was treated by a psychiatric social worker who

recommended that he discontinue underground work. Thereafter, he
recontacted Henry Kiser, Vice President and Joseph Pendergast,
Head of Industrial Relations seeking a

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transfer to an above ground job. He was told that no such jobs
were available. He continued on salary until April 22, 1984, and
then received disability insurance benefits until about June,
1984. In June he applied for workers compensation which was
denied after a hearing before a State Deputy Commissioner.

 He unsuccessfully sought other nonmining jobs in Southwest

Virginia, and in August 1984 began working as a school custodian
in Broken Arrow, Oklahoma, at a wage of $6.04 per hour. When he
left Respondent he was earning $1370 every two weeks.

 On September 30, 1984, he returned to Virginia because of

inability to support his family on the wages he was earning as a
custodian. He again sought an above ground job from Respondent
but received no response. In November 1984 he received a letter
from Respondent informing him that he was terminated because he
took a job in Oklahoma. There is substantial conflict in the
evidence on the issue whether Complainant told mine management of
his concern over the legality and safety of the bolting
procedure, specifically the practice of removing the line curtain
when installing the first row of bolts. I find as a fact that he
did tell Richard Light the mine Superintendent of his concern. I
further find that his expression of concern was a reasonable one
and was made in good faith.

ISSUES

 1. Whether Complainant has established that he was engaged

in activity protected by the Act.

 2. If so, whether Complainant suffered adverse action as a

result of the protected activity.

3. If so, to what relief is he entitled.

CONCLUSIONS OF LAW

 Complainant and Respondent are protected by and subject to

the provisions of the Act, Complainant as a miner, and Respondent
as the operator of the McClure No. 1 Mine.

 In order to establish a prima facie case of discrimination

under the Act, the miner has the burden of showing (1) that he
engaged in protected activity and (2) that he was subject to
adverse action which was motivated in any part by the protected
activity. Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (1980), rev'd on other

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grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir.1981); Secretary/Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (1981); Secretary/Jenkins v. Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984). The mine operator may rebut
the prima facie case by showing that no protected activity
occurred or that the adverse action was not motivated in any part
by the protected activity.

                      PROTECTED ACTIVITY

 The evidence establishes that Complainant was engaged in

activity protected by the Act: I have found that he questioned
the General Foreman about the practice followed at the subject
mine of removing the line curtain while bolting the roof. This
apparently occurred a short time after he began working as a
section foreman and again after he returned to work in February
1984. Complainant also questioned two MSHA inspectors about the
practice and was told by one that it was illegal. After the
meeting with company Safety Inspector Fields, Complainant
shortened his cuts to avoid having his crew perform what he
believed was an illegal procedure. Complainant told General
Superintendent Light that he could not continue working as a
foreman in part because of his concern that the procedure being
followed was illegal. I conclude that all of these activities
were safety related and are protected by the Act.

                   NONPROTECTED ACTIVITIES

 Not protected by the Act were Complainant's moving to

Oklahoma, and his emotional problems and psychiatric treatment.
The emotional problems were caused in part by Complainant's
understandable reaction to his brother's death, but I conclude
that Complainant has not established that they were related to
safety factors connected with his employment. Specifically, I
conclude that they were not the result of his being "order[ed] to
willfully violate Federal Law."

                        ADVERSE ACTION

 Complainant complains of three separate adverse acts by the

company:

     (1) the denial of vacation pay, and insurance benefits;

     (2) the refusal of Respondent to grant his request for
     a transfer to an above ground job;

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(3) his discharge from employment.

I conclude that each of these acts was an adverse action.

                          MOTIVATION

 1. Complainant's disability insurance payments were

discontinued on the ground that he could not establish disability
and had been working in Oklahoma. The termination of benefits was
effected by the insurance carrier, and not by Respondent. There
is no evidence in the record linking the termination of these
benefits to Complainant's safety complaints or any other
protected activity. The evidence in fact shows that the insurance
payments were stopped because the insurance company determined
that Complainant was no longer totally disabled. Complainant
alleged that he did not receive vacation pay to which he was
entitled after March 1984 in accordance with his employment
contract. Again, there is no evidence in the record that the
denial of vacation pay was motivated in any part by Complainant's
protected activity.

 2. Complainant testified that he requested a transfer to an

outside job when he talked to Joseph Pendergast, Industrial
Relations Manager, at the end of March 1984. Pendergast denied
that there was any discussion of a transfer to an outside job. In
any event, there is no evidence that in March 1984, Pendergast
had any knowledge of Complainant's safety concerns. There is no
evidence in the record that Respondent refused to transfer
Complainant because he was ordered by his superiors to mine in an
illegal manner.

 3. In November 1984, Pendergast was notified by the

Insurance Department of Respondent that Complainant's workers'
compensation and insurance benefits had been denied, and that
Complainant was working somewhere in Oklahoma. Based on this
information, Pendergast wrote Complainant on November 7, 1984
notifying him that his employment "has been terminated as of your
last day worked as a voluntary resignation to accept another
position." Pendergast testified that he did not clear or discuss
with Mr. Light, Mr. Fields, Mr. Wright or anyone in the Safety
Department, his decision to terminate Complainant. Pendergast
further testified that he had no knowledge of Complainant's
contention that he was ordered to violate MSHA regulations in the
roof bolting and ventilation procedures he was following. I
accept the testimony of Pendergast on these two matters.
Therefore, whether the termination was voluntary or forced, there
is no evidence that it was motivated in any part by activity
protected under the Mine Act.

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4. Whether Respondent treated Complainant unfairly in refusing
his request for a transfer; whether it sufficiently considered
his emotional problems; whether it violated company policy in
failing to honor Complainant's vacation pay request, are not
issues before me in this case. My jurisdiction is limited to
considering whether Respondent disciplined Complainant for
activity protected under the Mine Safety Act. I conclude that the
evidence before me establishes that it did not.

 5. Therefore, I conclude that Complainant has failed to

establish a prima facie case of discrimination under the Act.

                            ORDER

 Based upon the above findings of fact and conclusions of

law, IT IS ORDERED that this proceeding is DISMISSED.

                             James A. Broderick
                             Administrative Law Judge