U.S. Borax, Inc.

Plain-English summary

Robert G. Jungers alleged that U.S. Borax retaliated against him after he spent time with OSHA compliance officers and that a supervisor removed workplace cleanup assignments. Judge Richard W. Manning explained that the case would turn on whether Jungers engaged in protected Mine Act activity and whether the company took adverse action because of it. The order directed U.S. Borax's counsel to contact Jungers about settlement and required the parties to confer with the judge about the case's status and possible hearing dates. It did not decide the discrimination claim.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c) and § 815(c)(3); 29 C.F.R. § 2700.40
• Outcome: The parties were directed to pursue settlement discussions and prepare for a possible hearing.
• Key point: An ALJ's jurisdiction in a Mine Act discrimination case is limited to whether protected activity motivated adverse action, not whether workplace treatment was merely unfair or unreasonable.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
February 26, 2003

ROBERT G. JUNGERS, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 2002-532-DM
: WE MD 02-13
v. :
: Mine I.D. 04-05363
U.S. BORAX, INC., : Boron Operations
Respondent :

                                PREHEARING ORDER

    This proceeding was brought by Robert G. Jungers against U. S. Borax, Inc., under

section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(“Mine Act”) and 29 C.F.R.§ 2700.40 et seq. Mr. Jungers alleges, in part, that the actions of Joe
Ellison in taking down “illustrated clean-up areas designated to each crew” that was taped on a
window put him “in a potentially hostile work place, heaped on dysfunctional stress, and was
tort.” Jungers states that Ellison took this action because Jungers had spend time with OSHA
compliance officers. In its answer, U.S. Borax denies Mr. Jungers allegations and maintains that
he has not stated a claim that can be remedied under section 105(c)(3) of the Mine Act.

    It is important for Mr. Jungers and U.S. Borax to understand the limits of my jurisdiction.

I do not have authority to determine whether any actions taken against Mr. Jungers by U.S.
Borax were unfair and unreasonable unless such actions violated the anti-discrimination
provisions of the Mine Act at 30 U.S.C. § 815(c). Under that provision, a mine operator is
prohibited from discriminating against a miner because he complained about safety or health
conditions at the mine or refused to perform a task that he reasonably and in good faith believed
presented a hazard to his safety or health. A miner’s safety complaints or actions are known as
“protected activity.” A mine operator may not take adverse action against a miner for such
protected activity.

   If the parties are unable to settle the case and if the case is not otherwise dismissed, a

formal hearing will be held. The issues at the hearing will include whether U.S. Borax
discriminated against Mr. Jungers. At a hearing, Mr. Jungers will be required to present
evidence that he engaged in protected activity and that U.S. Borax’s adverse actions were
motivated at least in part by that protected activity. U.S. Borax may attempt to rebut Mr.
Jungers’ case at the hearing by presenting evidence that either no protected activity occurred, no
adverse actions were taken, or that the actions taken with respect to Mr. Jungers were in no part
motivated by the protected activity. If U.S. Borax is unable to present such evidence, it may
present evidence that the actions it took with respect to Jungers were also motivated by
unprotected activities and that it would have taken these actions for the unprotected activity
alone.

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     The Federal Mine Safety and Health Review Commission is not part of the Department

of Labor’s Mine Safety and Health Administration (MSHA). Section 105(c)(3) of the Mine Act
authorized Mr. Jungers to file this case on his own behalf. This provision provides him with an
opportunity to try to establish that he was discriminated against. Consequently, this case is not
an appeal of MSHA’s decision not to file a discrimination complaint on behalf of Mr. Jungers,
but it is a new, independent proceeding brought by Mr. Jungers on his own behalf. I do not have
the authority to review MSHA’s investigation to determine whether it was competent or to
determine whether MSHA’s decision to not bring a case was defensible. I do not have a copy of
MSHA’s investigation file in this matter. Neither MSHA nor the Secretary of Labor is a party in
this proceeding. If Mr. Jungers and U.S. Borax are not able to settle this case and it is not
dismissed, Mr. Jungers will be required to present evidence at a hearing to establish that U.S.
Borax discriminated against him in violation of section 105(c) of the Mine Act, as described
above.

    1. In order to encourage the parties to settle this case, counsel for U.S. Borax shall

contact Mr. Jungers to discuss settlement. The parties shall confer as often as necessary to
negotiate a settlement. If the parties are unable to settle the case, they shall attempt to narrow
the issues, enter into stipulations, and discuss proposed hearing dates.

   2. On or before March 27, 2003, the parties shall initiate a conference call with me to

discuss the status of the case, potential hearing dates, and other matters that they wish to discuss.

                                           Richard W. Manning
                                           Administrative Law Judge

Distribution:

Robert G. Jungers, ILWU, 24001 Chaparral Avenue, Boron, CA 93516-1301

Robert G. Jungers, 8501 Ironwood Ave., Calif City, CA 93505-3209

David A. Wimmer, Esq., Swerdlow, Florence, Sanchez, Swerdlow & Wimmer, 9401 Wilshire
Blvd., Suite 828, Beverly Hills, CA 90212-2910

RWM

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