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 roof-bolting and ventilation practices and later sought a transfer to surface work. The Commission agreed with the ALJ that Hall's safety complaints were protected activity, but found that the evidence did not show his transfer request, discharge, or benefit disputes were motivated by those complaints. The Commission affirmed dismissal of his discrimination complaint under section 105(c) of the Mine Act.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.302-1
• Outcome: The Commission affirmed the ALJ's dismissal of Hall's discrimination complaint.
• Key point: Protected safety activity alone does not establish discrimination without evidence that the challenged adverse action was motivated by that activity.

Full text (FMSHRC public release)

CCASE:
KENNETH W. HALL V. CLINCHFIELD COAL
DDATE:
19861107
TTEXT:

FMSHRC-WDC
November 7, 1986

KENNETH W. HALL

v. Docket No. VA 85-8-D

CLINCHFIELD COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

                DECISION

BY THE COMMISSION:

 This proceeding involves a discrimination complaint brought

by Kenneth W. Hall against Clinchfield Coal Company ("Clinchfield")
pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
$ 801 et seq. (1982). Mr. Hall's complaint principally alleges that
Clinchfield violated section 105(c)(1) of the Mine Act, 30 U.S.C.
$ 815(c)(1), by denying his request for a transfer from an underground
mining position to a surface mining position and by subsequently
discharging him. Following a hearing on the merits, Commission
Administrative Law Judge James A. Broderick concluded that Clinchfield
had not discriminated against Hall and dismissed his discrimination
complaint. 7 FMSHRC 1477 (September 1985)(ALJ). We granted Hall's
petition for discretionary review, which he prepared without the
assistance of counsel. For the reasons that follow, we conclude that
the judge's findings are supported by substantial evidence and we
affirm his decision.

In September 1981 Hall was hired by Clinchfield to work at

its McClure No. 1 underground coal mine as a section foreman in
charge of a production crew. Among other duties, Hall's crew was
responsible for ventilating the face areas and for bolting the roof
of the sections mined by the crew.

The ventilation plan and roof bolting procedures followed at

Page 2

the McClure mine are relevant to Hall's discrimination complaint.
In 1982, because of a reduction in the height of the coal seam being
mined, Clinchfield began to use line curtains as the primary method
of ventilating the mine. Thereafter, as found by the judge, certain
procedures were followed routinely while the roof in a section was
being bolted. After the coal was cut, the roof bolters installed near
the face area a

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roof bolt approximately three feet from the rib. During the
installation of this roof bolt (referred to as a "rib" bolt), the
line curtain was removed to the last row of permanent roof supports.
Without such removal, the canopy of the roof bolter would have
otherwise forced the line curtain into the rib and would have cut
off ventilation to the face. Therefore, when cuts exceeded ten feet,
the line curtain was not maintained to within ten feet of the face
during the installation of the rib bolt as required by the approved
ventilation plan that was in effect at the mine until March 5, 1984.
1/ Once the rib bolt was installed, however, the line curtain was
advanced to the rib bolt and the center bolts were then installed.
See 7 FMSHRC at 1478-79.

During Hall's first year as a section foreman he questioned then

General Mine Foreman Ron Sluss about the practice of removing the line
curtain before completion of the roof bolting. Sluss told him that
Clinchfield had received permission to use the procedure. Hall's crew
continued to follow the procedure outlined above, and Hall did not
raise additional questions concerning that procedure until early 1984.

On June 23, 1983, Hall's brother was killed in an explosion at

the McClure mine. After this tragedy, Hall took two weeks vacation
and subsequently was given another two weeks off with pay. During
this time, Hall received treatment at a mental health clinic to help
him cope with the death of his brother.

In February 1984, several miners on Hall's crew complained to
him about Clinchfield's roof bolting practice. They contended that
not enough air was reaching the face and, consequently, air in the
affected section was not circulating properly. These complaints led
Hall to question Clinchfield's general foreman, Johnny Kiser, about
the bolting practice. Mr. Kiser repeated what Sluss had told Hall
previously, namely, that Clinchfield had permission to remove the line
curtain while rib bolts were being installed. Hall posed the same
questions to two inspectors of the Department of Labor's Mine Safety
and Health Administration ("MSHA"). According to Hall one inspector
believed that the bolting procedure was permissible but the other
inspector disagreed.

In late February 1984, a few days after Hall had spoken to Kiser,
Clinchfield's safety director, Wayne Fields, met with a number of
shift foremen including Hall. The judge found that during this
meeting,

1/ Clinchfield's ventilation plan reflected the provisions of

Page 4

30 C.F.R. $ 75.302-1, a mandatory ventilation standard that addresses
the use of line brattice (curtain). Section 75.302-1 provides in
part:

 Line brattice or any other approved device used to
 provide ventilation to the working face from which coal
 is being cut, mined or loaded ... shall be installed at
 a distance no greater than 10 feet from the area of
 deepest penetration to which any portion of the face has
 been advanced unless a greater distance is approved by
 the [Department of Labor's Mine Safety and Health
 Administration] Coal Mine Safety District Manager of
 the area in which the mine is located.

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Fields instructed the foremen not to ask questions about bolting
procedures in the presence of MSHA inspectors or union personnel.
7 FMSHRC at 1480. The foremen also were instructed to continue
bolting in the usual manner until a formal revision of the mine's
ventilation plan could be obtained. The record reflects that in
late February 1984 there were contacts between MSHA and Clinchfield
officials regarding a revision of Clinchfield's ventilation plan.
Tr. 358-59. 2/

Because Hall thought that the bolting process was unsafe and

illegal, his crew shortened its cuts to ten feet instead of the
usual 15 feet, to avoid the need for the temporary repositioning of
the line curtain. Hall's production reports, however, continued to
show that his crew was making 15-foot cuts.

Hall's last working day at the mine was March 2, 1984. On

that date, he left the mine because of anxiety, hyperventilation,
and other emotional problems. 7 FMSHRC at 1480. Hall went to see
Richard Light, the mine superintendent, and explained that due to
his psychological problems, he could not function as a mine foreman.
Hall stated that he intended to see a psychiatrist. Hall also
expressed concern about the safety of the roof bolting procedure.
The judge found that, "Complainant was concerned about the procedure
being followed which he felt was violative of the Mine Safety law ...
and claimed [to Mr. Light] that he could not work in part because of
that situation." Id. Light instructed Hall to contact him after he
had seen a doctor and to inform the company whether he would be
returning to work or whether he would be quitting. Hall did not
contact Light until after he had filed his discrimination complaint
with MSHA in late 1984.

Meanwhile, on March 5, 1984, Clinchfield submitted to MSHA a
written request for revision of its ventilation plan so as to permit
the temporary repositioning of the line curtain more than ten feet
from the face during the installation of rib bolts. This revision
was approved by MSHA one day later, on March 6, 1984.

Hall obtained further psychiatric counseling and treatment.

Hall was advised by a psychiatric social worker not to return to work
at the mine unless he could control his emotional problems. He was
also advised to transfer to a surface position. Hall testified that,
on that advice,

2/ The roof bolting procedures required to be followed in a mine
are those set forth in the mine's approved roof control plan. The

Page 6

record indicates that Clinchfield, with MSHA's knowledge, changed
its procedure regarding placement of line curtains without first
obtaining a written revision to its approved plan. Although the
revision eventually was formally sought and granted, both Clinchfield
and MSHA are well aware of the proper recourse when changed mining
conditions necessitate a change in mining procedures and of the
consequences that can ensue when such procedures are not followed.

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at some point in March 1984, he contacted Joseph Pendergast,
Clinchfield's Manager of Industrial Relations, and requested a
transfer to an aboveground position. Hall further testified that
he was informed that there were no surface positions available to
which he could be transferred. Pendergast denied that any such
discussion occurred. 7 FMSHRC at 1483.

From the day that Hall left the mine on March 2, 1984, until
April 22, 1984, he continued to be paid his salary by Clinchfield.
From April 23 through sometime in June 1984 Hall received benefits
under Clinchfield's disability insurance program. From June forward,
Hall was listed by Clinchfield as an employee on leave without pay.
When Hall's disability benefits stopped, he applied to the
Commonwealth of Virginia for workers' compensation. On August 29,
1984, his application was denied.

At some point in August 1984, Hall learned that two miners

had been transferred by Clinchfield to surface positions. Hall
testified that he again contacted Mr. Pendergast who, according to
Hall, informed him that he was not qualified for either position.
Pendergast denied that such a conversation occurred. 7 FMSHRC at
1483. Because Hall could not find other employment in the area, he
and his family moved to Broken Arrow, Oklahoma, where he was employed
as a school custodian. Hall remained in Oklahoma until September 30,
1984. He then returned to Virginia, and again contacted Clinchfield
concerning a possible transfer. He received a letter from Pendergast,
dated November 7, 1984, informing him that he had been terminated
because he had "secured work with another employer."

Subsequently, Hall filed a discrimination complaint with MSHA.

MSHA determined that a violation of the Mine Act had not occurred
and declined to prosecute a complaint on Hall's behalf. Hall then
instituted this proceeding before this independent Commission pursuant
to section 105(c)(3) of the Act. 30 U.S.C. $ 815(c)(3). Hall's
complaint alleged that Clinchfield unlawfully discriminated against
him by: (1) causing his psychological problems as a result of ordering
him to violate federal law; (2) failing to transfer him to a surface
position; (3) terminating him because of his safety complaints; and
(4) denying him certain fringe benefits.

After an evidentiary hearing, Administrative Law Judge Broderick
concluded that Hall had failed to establish a prima facie case of
discrimination. The judge found that while Hall's complaints and
inquiries regarding Clinchfield's roof bolting procedures were
protected by the Mine Act, his emotional problems stemming from his

Page 8

brother's death "were not the result of his being 'order[ed] to
willfully violate federal law.'" 7 FMSHRC at 1482. The judge further
found that Clinchfield's refusal to transfer Hall to a surface
position, its final decision to discharge him, and the denial of
insurance benefits and vacation pay were all adverse actions but
were not motivated in any part by Hall's protected activity. 7 FMSHRC
at 1482-84. Therefore, the judge dismissed Hall's discrimination
complaint.

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On appeal, Hall essentially challenges the judge's factual
findings and credibility resolutions. The Commission's role in
reviewing a judge's decision is to determine whether the judge's
findings are supported by substantial evidence and whether the judge
correctly applied the law. 30 U.S.C. $ 823(d)(2)(A)(ii). After
carefully examining the entire record, we conclude that the judge's
decision is supported by substantial evidence and is consistent with
applicable rulings of the Commission in prior discrimination cases.

In order to establish a prima facie case of discrimination

under section 105(c) of the Mine Act, a complaining miner bears the
burden of production and proof in establishing that (1) he engaged
in protected activity and (2) the adverse action complained of was
motivated in any part by that activity. Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub. nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
part motivated by protected activity. If an operator cannot rebut
the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the miner's
unprotected activity and would have taken the adverse action in any
event for the unprotected activity alone. Pasula supra; Robinette,
supra. See also Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984);.Boich v. FMSHRC. 719 F.2d 194, 195-96
(6th Cir. 1983)(specifically approving the Commission's
Pasula-Robinette test).

As to the first element of a prima facie case, Clinchfield does

not dispute the judge's findings that Hall's questions and complaints
about Clinchfield's roof bolting procedures and his actions in
shortening his mining cuts for safety reasons enjoyed the protection
of the Mine Act. See 7 FMSHRC at 1482. As to the second element of
a prima facie case the judge determined that the following adverse
actions were taken against Hall: (1) the refusal to transfer him to
a surface position; (2) his discharge; and (3) the denial of certain
fringe benefits. The judge found, however, that these actions were
in no part motivated by Hall's protected activity. 7 FMSHRC at 1483.
We agree.

Concerning Clinchfield's failure to grant Hall's request for a
transfer to a surface position, the record reveals that during August
1984 Clinchfield transferred three miners to certain surface

Page 10

positions. Hall asserts that he should have been transferred to at
least one of these positions because he had requested a transfer in
March 1984 and was qualified for all three positions. He contends
further that because of his safety complaints he was not transferred.

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As noted, Pendergast (Manager of Industrial Relations) denied
discussing a possible transfer with Hall in either March or August
1984. The judge found that, regardless of whether such conversations
occurred, Pendergast had no personal knowledge of Hall's safety
concerns and did not refuse to transfer Hall because of those
concerns. 7 FMSHRC at 1483. The evidence supports these findings.
Further, Pendergast testified that three miners -- Terry Robinson,
Doug Ring, Jr., and Bob Harding -- were surface workers who were
transferred to different surface positions in August 1984. He further
testified that all were more qualified than Hall for these positions.
Mr. Robinson, who worked as a billing clerk, was transferred to
Clinchfield's Moss 3 Preparation Plant to prepare him to take over as
manager of the shipping department. Mr. Ring, also a billing clerk,
moved into Robinson's vacated position. This move was a lateral one
for Ring, not a promotion. Finally, Mr. Harding, an employee with
30 years of service with Clinchfield, was moved into Ring's position
because the position that he had held at the central warehouse was
about to be terminated. Harding's move also was considered to be
lateral. The proffered reasons for these transfers were not overcome
during cross-examination, and we find no reason in the record to
regard them as anything other than legitimate, good faith business
decisions.

 Pendergast testified that Hall had not been excluded from any

of these positions as a result of his having engaged in protected
activities. Pendergast denied that Hall had discussed his safety
concerns with him and denied receiving, prior to Hall's termination,
letters prepared by Hall's psychiatric social worker referring to
Hall's safety concerns. The judge credited Pendergast's testimony
in this regard. As the Commission often has stated, a judge's
credibility resolutions cannot be overturned lightly (e.g., Robinette,
supra, 3 FMSHRC at 813), and we discern nothing in the present record
that would justify our taking this extraordinary step in this matter.
We find that the judge's findings on the transfer issue are supported
by substantial evidence and are grounded in credibility resolutions
that he was in the best position to make.

 With respect to Hall's discharge, the judge found that

Pendergast had no knowledge of Hall's protected activity at the time
he prepared the notice of discharge and that he had not consulted with
any other mine officials prior to terminating Hall. 7 FMSHRC at 1483.
Again, the record supports these findings. Pendergast testified that
he made the decision to discharge Hall after he received a notice,
dated November 5, 1984, from Clinchfield's insurance department
stating that Hall could not prove his state disability claim and that

Page 12

he was working elsewhere. Pendergast also stated that he made the
termination decision without conferring with any other management
officials or anyone who knew of Hall's safety concerns. Pendergast
further asserted that Clinchfield "routinely terminate[d]" anyone who
obtained another job. Tr. 513. As discussed above in connection with
the transfer issue, the judge specifically found that Pendergast had
no knowledge of Hall's protected activity. This finding is a
credibility determination and we find no grounds for overturning the
judge's resolution of this question.

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We also are persuaded by the fact that when Hall voluntarily
left the mine in March 1984, Clinchfield's reaction was supportive,
not disciplinary. The record reflects that Clinchfield extended Hall
leave with pay and then provided insurance benefits. Moreover, the
termination occurred in November 1984 -- nine months after Hall's
departure. There is no evidence in this record of hostility towards
Hall or of retaliation for his safety concerns. In sum, the judge
concluded that Hall left work voluntarily in March and was discharged
for legitimate reasons in November. We find no persuasive reasons in
this record to disturb the credibility resolutions and findings on
which the judge's conclusions are based.

Finally, with regard to Hall's claim that he was denied

disability insurance, vacation pay, and benefits, the judge found
that Hall's disability insurance payments were discontinued by
Clinchfield's insurance carrier on the grounds that Hall could not
establish that he was disabled and because he was working in Oklahoma.
7 FMSHRC at 1483. The insurance carrier arranged for Hall to be
examined by a physician, who determined that Hall was capable of
working and was not disabled. There is no evidence in the record to
indicate that Clinchfield requested that its insurance carrier deny
Hall benefits because of his prior protected activity. As to the
denial of vacation benefits, the judge found that this denial was not
motivated by Hall's protected activity. This matter was not litigated
in detail, and there is nothing in the record inconsistent with the
judge's finding. We affirm the judge's findings on these issues.

In sum, we agree with the judge that Hall failed to carry his
evidentiary burden of proving that any of the adverse actions
discussed above were motivated by his protected activity.

For the foregoing reasons, the judge's decision dismissing
Hall's discrimination complaint is affirmed.

               Ford B. Ford, Chairman


               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


               James A. Lastowka, Commissioner

Page 14

L. Clair Nelson, Commissioner

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Distribution

Kenneth W. Hall
1215 West Birmingham Place
Broken Arrow, Oklahoma 74011

Louis Dene, Esq.
206 East Main Street
P.0. Box 1135
Abingdon, Virginia 24210

Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041