Gene Estella v. Newmont USA Limited

Plain-English summary

Gene Estella worked in the copper leach area at Newmont's Phoenix Mine in Nevada. He and coworkers made anonymous safety complaints to MSHA, an inspection followed, and citations were issued. Two weeks later Newmont suspended and then fired Estella and two other employees from that same area. Newmont said the firings were about a coworker bringing beer onto mine property in a car trunk, pointing to its drug and alcohol policy. Judge William B. Moran found Estella made out a prima facie case of discrimination under section 105(c) and that Newmont could not rebut it or show any legitimate independent reason for the firing. He noted the policy listed 28 examples of prohibited conduct and did not make termination mandatory. The judge ordered Estella permanently reinstated with back pay, interest, and benefits, ordered all references to the termination removed from his personnel file, and required the mine to post a notice telling employees about the finding and about their rights. He directed the parties to confer on the specific dollar amounts and kept the case open until relief is finalized.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2) and (c)(3); 29 C.F.R. § 2700.44(b)
• Outcome: Newmont was found to have discriminated against Estella, who was ordered reinstated with back pay and benefits, with specific damages left for the parties to resolve.
• Key point: Once a miner shows firing followed protected safety complaints, the operator must prove a legitimate independent reason, and a discretionary policy violation affecting a coworker did not carry that burden.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

December 22,
2016

GENE
ESTELLA,     

Complainant,

v.

NEWMONT
USA LIMITED,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2016-0031-DM

WE-MD-15-17

Mine:
Phoenix Mine

Mine
ID: 26-00550

DECISION AND ORDER

Appearances:   Ms.
Debra M. Amens, Esq., Amens Law, Ltd., Battle Mountain, NV, for Complainant

Ms.
Laura E. Beverage, Esq., Jackson Kelly PLLC, Denver, CO, for Respondent

Ms. Hiliary N.
Wilson, Esq., Newmont USA Ltd., Elko, NV, for Respondent

Before:                        Judge
Moran

This case is
before the Court upon a complaint of discrimination under Section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“the
Act”).  At issue is the question of whether Complainant Gene Estella (“Estella”
or “Complainant”) was wrongfully terminated by the Respondent, Newmont USA
Limited (“Newmont,” or “Respondent”) in retaliation for safety complaints made
to the Mine Safety and Health Administration (“MSHA”).

A
hearing was held on Tuesday, April 26 through Thursday, April 28, 2016 in Elko,
Nevada and the hearing then resumed and was completed on July 6, 2016.  Javier
Esquibel, Marcos Soto, and Robert Wells, current or former employees of
Newmont, testified on behalf of the Complainant.  Complainant Gene Estella,
Monica Sampson, and Tanya Holland also testified for the Complainant.  Dayne
Heese, Respondent’s health and safety manager, testified for the operator, as
did Steve Blaskovich and John Cole, all managers with Newmont, and Rocky
Mitchell, a mine employee relations specialist for management.

For the reasons
which follow, the Court finds that Complainant Estella was discriminated
against for making such safety complaints and that Newmont had no independent,
legitimate, basis for the Complainant’s firing.

Findings of Fact

Summary

Complainant
Gene Estella, an employee at Newmont USA Ltd.’s Phoenix Mine at its 
copper/leach processing operation,  filed a discrimination complaint against
Newmont alleging that he was wrongfully terminated in retaliation for safety
complaints made to MSHA.  As set forth below, the Court finds that Estella and
others made anonymous safety complaints to MSHA, that an MSHA inspection
occurred as a result of those complaints, and that several citations were
issued in connection with that inspection.  Two (2) weeks after the
complaint-initiated inspection, Newmont suspended and then fired Estella and
two other employees who worked in the copper/leach area, which area was the
focus of the safety complaints.  At least as to Estella, [1] the
Court finds that Estella was fired for making safety complaints, and
established a prima facie case of discrimination.  Further, Newmont was unable
to rebut Estella’s case and presented no legitimate independent reason for
Complainant’s firing. 

Complainant’s
Evidence

Testimony of
Javier Esquibel

Javier
Esquibel, a current employee with Newmont, was called as a witness for the
Complainant.  At the time of the events in issue, he worked at the copper/leach
operation, (“copper/ leach”) but now works at the mine’s mill.  Tr. 12.  At the
copper/leach his job title was an “operator.”  Copper/leach has four crews,
designated as A, B, C and D.  Over the course of his employment there, Esquibel
worked his way up from the tech 1 position.  At the time of anonymous safety
complaints made to MSHA, which prompted that agency to conduct an investigation
in 2015, shortly after the Memorial Day weekend, Esquibel had progressed to a
tech 5, although that is still not a supervisory position.  Tr. 13-14.  When
MSHA arrived to conduct its investigation, Esquibel was on the C crew. 

Esquibel
knows the Complainant, Gene Estella, and they are friends.  Tr. 19.  When Esquibel
began working at Newmont, as a temp, he and Estella were both assigned to the D
crew.  Later, he was assigned to the C crew, while Estella remained with the D
crew.  Esquibel had occasion to speak with Estella about safety issues at the
mine. 

Esquibel
expressed that his concerns included,

the stripping machine, the
way they wanted us to lock it out.  They wanted us to lock it out on the main
panel.  A few other ones were working, you know, without -- you know, people
working on, doing stuff, without locking it properly.  The fire alarm system
that they cut the wires on the buzzer.

Tr.
20-21. 

Esquibel
raised these concerns to his supervisor, who in turn took them to another
supervisor, Steve Blaskovich, the superintendent for copper/leach.  The
response was that they should stop worrying about other crews and worry about
their own crew.  Tr.  21.  Esquibel had similar discussions regarding his
safety concerns with other employees besides Estella.  Tr. 21.  Esquibel
informed Estella and Kyle White that he planned to call MSHA regarding these
safety concerns, stating that he told them, “I was going to call MSHA, you
know, of all these unsafe stuff that was going on, that they wouldn't do
nothing about it.”  Tr. 22.  Both Estella & White told Esquibel that they
intended to call MSHA too.  Id .

MSHA
appeared at the mine on or about June 2, 2015 for the investigation.  Esquibel
asserted that the MSHA investigator asked him who had called MSHA.  Esquibel
did not want to identify who called but the investigator purportedly told him
that the mine can’t retaliate against the employees.  Tr. 24.  In response,
Esquibel revealed that Estella had called MSHA and that a couple of employees
from the C crew had called too.  Tr. 24.  Esquibel was called to help the
investigator “go through the monitors so they could see what was going on, all
the unsafe acts that was happening.”  Tr. 25.  Esquibel stated that “numerous
complaints” were made to MSHA; they were not solely about the control room. 
Tr. 25-26.  He identified his complaints as “there (sic) were locking -- working
on some stuff that wasn't locked out properly.  Stripping machine, stuff that
was in there that was unsafe.  And the biggest one was the fire alarm system
that they cut the wires on the buzzer.”  Tr. 26.  This concern was that if
there was a fire, but no alarms sounded, employees might not know there was a
fire because only a blinking light on the machine would alert them to that
hazard.  His concern was not simply academic, as Esquibel stated they did have
some fires.  Tr. 26-27.  One occurred in the rectifier.  After MSHA arrived,
the mine did have some people come and fix the problem.  The MSHA cited
violations were subsequently posted at the mine.  Tr. 26-27. [2]  

On
the first day of the MSHA investigation, Esquibel was called up to the
copper/leach control room by Jesse Leon.  Tr. 37.  Leon was running the control
room at that time.  Tr. 38.  Esquibel was called up to assist the MSHA
investigator in understanding the video of a month or two earlier and explain
what was being shown.  Tr. 38.  While this was going on, Steve Blaskovich, the
mine’s copper/leach superintendent, Jack Stull, the MSHA investigator, and
other individuals,  including Kyle White, Mike Peansnall and Dayne Heese, the
safety manager at Newmont’s Phoenix mine, came in to the control room at
various times. [3]

According
to Esquibel, it was while he was assisting in the control room that MSHA’s
Stull asked him who had called MSHA.  Tr. 40.  Heese, and Blaskovich, were
present, right behind him, when Stull posed the question to him.  Tr.41. 
Esquibel also asserted that throughout the investigation Heese made comments to
him such as “[a]re you going to snitch on your crew.”  Tr. 41.  Esquibel added
that after MSHA’s viewing of video showing violations, the mine terminated that
review ability, stating that they took that “away from us, from us being able
to go back and see anything that was recorded, you know.”  Tr. 43.  He didn’t
know who took that action, but reiterated that while they “still have the
videocamera system [miners] can’t… go back into the computer” to view events
from a previous week.  Tr. 44  “At least,” he added, “we can't, you know.”  Id . 
That change occurred the very next day.  Id .  Esquibel also related
that, while viewing the video, the inspector remarked, “these guys need a lot
of training.”  Tr. 48. 

Esquibel
stated that he was also present when Jesse Leon raised the issue of the alarm
system.  Tr. 49-50.  According to Esquibel, mine  management’s Heese and
Blaskovich asserted that the alarm was not a safety hazard in any way.  At that
point Esquibel spoke up, contending that it was a safety issue: “that's when I
jumped in and said, ‘Yeah, it is.  That alarm right there will tell us if -- if
there is a fire out in the cellars, it will tell you that there's a fire out
there.  With the buzzer being cut off, you can't hear nothing.’”  Tr. 51.  He
continued,

What
happened with the buzzer was that it was going off for weeks.  The buzzer was
just going off.  And then we -- we would have to put ear plugs in our -- just
to be in the control room because the buzzer was going off.  . . . the first
day when we came back from our day off, that's when we noticed that the buzzer
was off, was cut off, the wires.  So we right away notified our supervisor. 
[An electrician was called and wired it back on but] [t]he next day we came back
to work, it was cut off again. . . [it was only] the day that MSHA showed up,
that was the day that they started fixing that stuff.

Tr. 51. 

After
the first day of MSHA’s inspection, a safety meeting was called in the control
room where several members of management were present, including Cole, Blaskovich
and Mike Peasnall, Esquibel’s supervisor.  Tr. 52.  Most of the discussion
pertained to the complaints which had been made to MSHA.  Tr. 53.  The subjects
included working without properly locking out and the fire alarm defect.  Id . 
The following day there were more questions, described by Esquibel as an
interrogation.  Tr. 54.  This occurred in Cole’s office with Mitchell and
Blaskovich present.  Everyone from the crew was questioned in a one-on-one
fashion.  Tr. 54.  Leon joined with Esquibel, because he didn’t want to be
questioned alone. [4]  
Tr. 54.  Esquibel thought he had revealed to White that he gave the names of
those that had called MSHA.  Tr. 55. 

As
noted, with Blaskovich and Mitchell present, Esquibel was questioned in Cole’s
office about the list of complaints made to MSHA.  Esquibel inferred that they
had figured he was the source because he had indirectly raised the issue with
Blaskovich previously, by telling his immediate supervisor, Mike Peasnall,
about it.  Tr. 62. 

To
clear up some ambiguities, the Court asked about the safety complaints to
MSHA.  Esquibel denied that Mitchell or Cole expressed displeasure at him for
making safety complaints during the investigation concerning safety
complaints.  Tr. 69.  Esquibel also stated that he never gave Estella’s name to
Mitchell or Cole or to any other person with management and did not disclose to
them that Estella had called MSHA.   Id .

On
the issue of the inspection on June 2, 2015, when Esquibel was in the control
room with Leon, MSHA Inspector Stull, Mr. Blaskovich and Dayne Heese, Esquibel
stated that Stull left the control room with Heese.  He also stated that
Blaskovich left the room.  When Stull was in the control room Heese was there
the whole time.  When Esquibel called MSHA, he did not give his name, as he was
scared to do so.  Tr. 82-83.  However, he stuck with his claim that Stull asked
him who made the complaint.  Tr. 83-84.  Esquibel told Stull, “there were a
couple of us on this crew and I believe one guy out of D crew, it was Gene.” 
Esquibel did not know for certain that Gene Estella had made the call, but
Estella told him that he was going to call MSHA.  Tr. 84.  On questioning by
the Court, Esquibel stated that when inspector Stull came to the mine he
disclosed Estella’s name to him and his own, as the people who called MSHA. 
Tr. 88-89.  It was only later, when Esquibel had his meeting with the mine
related to people who made complaints to MSHA, that he maintained that he never
disclosed Estella’s name to mine management people.  Tr. 89-90. 

The
Court finds that Esquibel was a credible witness.  It also finds that it is
fair to conclude, based on the number of management people involved and the
extent of their reactions to the MSHA call, that the mine management was very
perturbed over the call to MSHA.  In support of this conclusion, the Court
notes that the lockout and alarm issues could have been corrected without the
interrogations which ensued.  The Court finds that Esquibel did disclose who
called MSHA, after he was reassured that any disclosure of the callers’
identity could be protected if adverse action were to occur.  However, this
finding is not critical to the decision in this case because all of the
complaints were related to the copper/leach, and therefore the list of those
who could have called was a small group.  The subsequent, very close-in-time
actions taken against three of the four members of the D crew made it clear to
the Court that management had fingered the source of the calls, a deduction
that was not hard to reach.    

Testimony of
Marco Soto

Marcos
Soto also testified for the Complainant. [5]   Soto began working at
the Newmont Phoenix Project on the copper/leach D crew, under Bob Wells, about
three years before the hearing, his employment having ended about a year before
his testimony in this matter.  Tr. 106.  Soto ran the stripping machine, on the
same crew as Gene Estella.  At that time he lived in Battle Mountain, as did
Estella, and they often drove to work together.  Tr. 107.  Occasionally,
Estella and Soto socialized.  From their conversations, Soto was aware that
Estella was concerned about some safety issues.  Tr. 108.  Estella was the
leadman in the crew, so it was natural that such issues would be discussed. 
Soto was a tech 4, and Estella, a tech 5, at Newmont.  If Wells wasn’t present,
Estella would be the lead man.  Tr. 109.  Estella told him that he was
considering calling MSHA and later revealed to him that he had called.  Tr.

110.  The subjects of Estella’s call were the alarms and the stripping
machine.  Soto also had an issue with maintenance people wanting him to
continue running the machine while maintenance was being performed.  He refused
to unlock it and run the machine during such maintenance.  The maintenance
people tried to force him to do that, and went to Mike Chopp over the dispute. 
Still, Soto refused and he then went to Wells, who supported his refusal.  Tr. 111. 
Ultimately, Soto prevailed on this safety issue.  Soto, during his two years
and one month of employment at Newmont, was never written up for disciplinary
issues.  Tr. 114.  Following MSHA’s inspection, as a result of a citation, Soto
and others received “5023” task training for the stripping machine.  Tr. 117. 
However, a few weeks after MSHA came to inspect, following the anonymous safety
complaint which precipitated the inspection, Soto was suspended and soon
thereafter fired, along with Estella and Shane Watson.  Tr. 114-115. 

Soto
set forth the circumstances regarding that employment termination.  On that
early morning Watson was the carpool driver.  Watson picked up Soto first at
about 4:45 a.m. Watson was a co-worker on Soto’s crew.  Estella was then picked
up.  Watson lives in Winnemucca.  Soto and Estella live in Battle Mountain. 
Tr. 120.  The men were due at work at 6:00 a.m.  They then stopped at the
Midway Market to pick up items for lunch.  Estella and Soto walked into the
market together, but went their separate ways once in inside the store.  It is
undisputed that Watson remained in his car. 

Soto bought chips, soda, and some beer
and ice.  He purchased the beer to drink at his home after work that evening. 
Tr. 122.  He stated that it was his normal routine to purchase beer the night
before.  Tr. 122.  Soto stated that he did not see what Estella purchased.  Tr.

122.  When Soto arrived at the register, Estella was walking out of the
market.  Tr. 123.  Soto also saw Heese, a safety supervisor at the mine,
entering the store as Estella was exiting.  Soto did not normally see Heese at
the market.  Tr. 123.  Heese and Soto exchanged routine greetings.  At the
checkout line, only Heese and Soto were present, Estella having already exited. 
Tr. 124.  Soto stated that his purchases were plain to see, but Heese said
nothing about the beer Soto was purchasing.  Tr.125.  The checkout person
double bagged his beer purchase and Soto left with three bags, the beer, ice
and his snacks for work.  During the checkout process, Soto stated that he said
out loud he needed to buy ice.  Tr. 124.  After Soto exited the store, he saw
Estella looking in the car’s trunk for something in his lunch box.  Tr. 126. 
Estella then took his lunch box and went to the car’s back seat.  Soto then put
the beer and ice in his cooler, which was in the car’s trunk, and put the other
items in his lunch box.  Soto did not tell Watson he had beer.  Tr. 126.  Soto
was sure that Estella did not see his purchases.  Tr. 127.  Soto stated that,
when they left the market, Heese was standing outside as they departed. 
Tr.130. 

Soto
then informed Watson that he needed to drop off his cooler at his (Soto’s)
house.  Tr. 128. [6]  
Before doing that, the three went to McDonald’s for breakfast, using the
drive-thru.  By then it was about 5:25 a.m. and they were running late, since
they were due for work at 6:00 a.m.  Tr. 129.  The McDonald’s is directly
across the street from the market, so Heese would have been able to observe
Watson’s car driving there.  Tr. 130.  Work was a 20 to 25 minute drive from
the McDonald’s.  At that point, aware that they were running late, Soto forgot
to go to his house to drop off the cooler.  Tr. 129. 

The three
arrived at work at 5:50 a.m., and left Watson’s car at the mine’s parking lot. 
When Soto went to the car’s trunk to retrieve his lunch, he did see the cooler
and beer, but “didn’t think too much of it.  So [he] just closed the trunk and
headed to the [mine’s entrance] gate.”  Tr. 133.  As Estella was in the back
seat and had his lunch with him, he did not go to the car’s trunk.  Tr. 133.

They
then took a company vehicle to the plant, whereupon Soto changed into his
uniform at his locker and went to the control room to eat breakfast and attend
the safety meeting.  Tr. 134.  Soto stated that he never told Estella or Watson
that he had brought alcohol to the car.  Tr. 134-135.  Around 9:00 a.m., Soto
went down to his locker to get some quarters for a soda at the vending
machine.  Heese followed Soto to his locker and asked what he was doing and he
explained about the quarters to buy a soda.  Heese said nothing but watched
Soto the whole time he was at his locker.  Tr. 135.  Soto then bought a soda
and returned to the control room.  Watson then joined Soto for their break
which they customarily took together. 

At
that point Mitchell appeared and told Soto he was wanted for questioning in
Blaskovich’s office.  Soto inquired what the matter was about and Mitchell told
him there was a suspicion that he was under the influence of alcohol.  Tr.

136.  Blaskovich, and Mitchell, with Wells also present, asked Soto if he had
purchased beer that morning and Soto immediately admitted that he had done so. 
Asked where it was, he informed that it was in the car.  Asked why he brought
it to work, he explained it was his intention to leave it at his house, but
that they were running late for work and he forgot about the beer.  Tr. 137. 
They also asked if Watson and Estella knew of the beer and he told them they
did not know of it.  Tr.  138.  Mitchell then advised that they were going to
check his lunch box and his locker to see if there was anything that should not
be there.  Tr. 138.  They found nothing improper.  Tr. 138.  Soto was then
taken for a drug and alcohol test, the results of which were negative.  Tr.
138.  He then went with Heese down to the car in order to search it.  Soto had
never seen the mine search cars before.  Tr. 139.  Soto was fired five days
after the “beer in the car trunk” event. [7]   Tr. 139.  His fellow car
poolers, Estella and Watson were also fired the same day.  Tr. 140.  

Returning
to the events at Watson’s car that day, Soto stated that Blaskovich, Heese,
Mitchell and a security person were all there at that time but Complainant
Estella was not there.  Tr. 145-146.  Soto had not spoken with Estella since
the investigation events started that morning and he first spoke with Watson in
connection with the events only when they had convened at the car.  Tr. 146.  The
mine management officials had Watson open the trunk of his car and they had
Soto retrieve the cooler.  They took photos of the cooler.  Then they gave Soto
his cooler back, but now empty of the beer.  Watson and Soto were then directed
to return to the control room and not to do anything.  Tr. 146.  They returned
with Blaskovich.  Tr. 146.

Upon
arrival at the control room Estella was then present.  The three (Soto, Watson
and Estella) were told to wait, and advised that they would be questioned for a
second time.  Tr. 147.  This was Soto’s first opportunity to speak with Estella
about what was going on and he then told Soto that he had been questioned about
the matter.  Tr. 147.  It was only then that Soto informed Estella about what
was happening, revealing that he had purchased beer that morning.  He told
Estella that it had been his intention to drop it off at his (Soto’s) house,
but that they were running late for work and he had simply forgot about the
beer in the trunk.  Tr. 147.  Soto also disclosed to Estella that Heese had
seen him buy the beer and that was “why this was all going on.”  Tr. 147. 
Estella, in turn, told Soto that he too had been questioned about the matter.  Id .

Not
only did Soto admit to the beer, he also admitted that he knew about the mine’s
policy prohibiting alcohol on the site.  His only defense was that he simply
forgot about having it in the trunk.  Tr. 148.  At Soto’s second round of
questioning, in the presence of Blaskovich, Mitchell and Wells, the same
questions were asked of him and he gave the same response – he was running late
for work and simply forgot about the alcohol in the trunk.  The Court,
evaluating Soto’s testimony, found his account to be credible also concludes
that it does not seem farfetched that such a sequence of events could occur. 
As such, it finds Soto’s account to be plausible, as people can forget.

Following
the questioning, Soto was told to “dress out,” (i.e. prepare to leave the mine
and go home) and he was advised that he was suspended until further notice. 
Tr. 149.  Blaskovich then drove Soto and Estella back to their homes, and
Watson drove himself home.  Tr. 150. 

Following
that, on June 23rd Mitchell telephoned Soto, informing him that he was to meet
with mine personnel the following morning at the Newmont office in Battle
Mountain, Nevada.  At that meeting, Soto was questioned for the third time
about the beer incident and he repeated the same answers as before.  The examiners
also asked about Watson’s and Estella’s knowledge of the beer and again Soto said
they did not know.  Tr. 151.  He was then informed that he was terminated, but
also told it was possible that he might be rehired in the future, as the
management acknowledged that he was a good worker and noted that he had
received numerous safety awards.  Tr. 151.  Soto did not appeal their decision,
as he figured that, since it was his beer, an appeal was pointless.  Id . 

In
further testimony, [8]
returning to the events of the morning of June 17th, Soto stated that he did
not see what Estella purchased at the market that morning.  He agreed that the
beer, soda and energy drinks are all in the same area of the store in the
Midway Market.  Tr. 157.  He estimated being in the market for five or ten
minutes, but could not say how long Estella was in the market, as he only saw
him walk out.  Tr.  158.  Soto repeated that “Gene [Estella] was never at the
checkout with me and [Heese].”  Tr. 160. 

When
asked if he was aware that taking beer on the site was in violation of the
company’s policy, Soto noted, “Well, it was outside of the mine site, it was in
the parking lot.”  Tr. 162.  Ultimately, in response to a question from the
Court, Soto agreed it was a violation.  Id .  Further, Soto admitted that
there was signage posted in the parking lot prohibiting alcohol and drugs.  Tr.

163.  When the Court asked Soto why he did not take the beer home first, given
that Soto’s house was only a mile from the convenience store, Soto answered
that he “forgot about it.  I forgot about the beer since we were running late. 
I just got it in my head that I don't want to be late and I just forgot about
it.”  Tr. 163.

The
Court inquired further, trying to understand how Soto could forget about the
beer so quickly: “But you just placed it in the car, you put the ice there. 
And somehow, in the time after you put the ice and the beer in together, you
forgot that you had the beer, even though you are just a mile away?”  Tr. 164. 
Soto stood by his statement that he had forgot about the beer, adding that they
weren’t running late when they next went to McDonald’s, but after that stop
they were running late.  Tr. 165.  Soto reiterated that he did not think about
the beer in the trunk again until they arrived at the mine site.  Tr. 165.  As
noted above, the Court finds this account plausible.

Soto
agreed during cross-examination that R’s Ex. 11 is a document that he had to
sign when he was hired and that page 64 of the document provides, “Newmont
strictly prohibits the following conduct anytime an employee is on company
premises, work sites, parking lots, exploration sites, et cetera, including in
company vehicles as well as private vehicles on company property or work site
location, whether on duty or not on duty.”  Tr. 167.  Thus, he agreed that the
handbook specifically prohibits alcohol in a car in an employee parking lot. 
Tr. 167.  Soto signed this agreement.  Tr. 167-68, referencing Ex. R 11(the
employee handbook) and Ex. R 11A.  Soto admitted from the start that the beer
was his, while, to the disappointment and consternation of Newmont, simultaneously
absolving the others in the car from knowledge of the beer.  That Soto signed
an agreement acknowledging that alcohol is prohibited on Newmont’s mine is of
little pertinence to the issues at hand.

Soto
did agree that he was aware that violating any of the rules in the handbook can
result in discipline, including sanctions other than being fired.  Tr. 173. 
Further, he agreed that he was fired for violating the drug and alcohol
policy.  Id .  But the policy itself does not pronounce which infractions
will result in firing; it provides:  “Failure [to so comply] may subject you to
corrective action up to and including termination of employment.”  Tr. 173-74
and Ex. R 11 at 2.1.1.  The Court also pointed out that among the 28 listed sample
reasons for termination, possessing alcohol is not listed.  Tr. 174.  Further,
the Court noted that the exhibit does not establish that violations of any of
the 28 examples mandates termination, rather it provides that failure to abide
by them “ may subject [an employee] to corrective action up to and
including termination of employment.”  R’s Ex. 11 at 2.1.1, Tr. 174
(emphasis added). 

Accordingly,
the Court expressed at the hearing that the Policy itself presents a problem
for Newmont because it does not assert that violation of its drug or alcohol
rule will result in firing.  Tr. 174.  Thus the Policy clearly
anticipates that discipline less than firing may be imposed for drug or alcohol
violations.  Particularly here, both the circumstances and the degree of the
violation are disproportionate to the punishment meted out.  The Court
considered all of the attendant circumstances, below, in determining that the
beer in the trunk incident afforded Newmont an excuse to take retribution
against miners for calling MSHA with safety complaints. [9]

Testimony of
Robert Wells

Robert
“Bob” Wells testified.  Wells is a mill shift foreman for Newmont at Phoenix,
and has worked there for 18 years.  Tr. 176.  Wells is part of management.  Tr.

179.  Wells oversaw a crew of four employees working in the copper/leach area. 
As described earlier, there were four such crews for the copper leach
operation, designated as A, B, C, and D.  Tr. 178.  Estella had worked for
Wells at other mines and had known Estella for 18 years.  Tr. 176.  Estella
worked in the control room as a tech 5 on Wells’ crew at the time he was
fired.  In addition to Estella, the others on Wells’ crew were Jeremy Tingey,
Shane Watson, and Marcos Soto.  Tr. 186.  One can move up to a tech 6 in that
job, which is a semi-supervisory position, as one fills in for the
supervisors.  Tr. 178.  Despite being a tech 5, not a tech 6, Wells had Estella
fill in for him on occasion and therefore he was performing tech 6 work at
times.  Wells also had Estella train new people.  Tr. 178.  Estella, Wells
stated, was a good employee.  Tr. 179.  Exhibit P 7 is one of Estella’s
evaluations; this one being through December 2014.  Tr. 180.  Respondent voiced
it had no objection to any of Estella’s performance appraisals.  Tr. 181. 
Other performance evaluations told the same story:  Estella was a good
employee.  “Gene works well in all phases of the job, including the months
filling in for myself while doing the control room operator job as well as
keeping the crew on track and helping them to learn new tasks.”  Tr. 182,
referencing Ex. P 8, Ex. P 9, and Ex. P 10.  In summary, Wells considered Estella
to be a very good employee, and he agreed that Estella brought safety issues to
him.  Tr. 188-89. 

As
for Estella’s assertion that he called MSHA, Wells stated that he was not aware
that such a call had been made.  Tr. 190.  When the MSHA investigator arrived
at the mine, Wells was not at the mine, as it was his day off.  Tr. 190.  When
he returned to work, there was casual discussion that MSHA had been at the mine,
but Wells was not officially involved in those discussions.  Tr. 191.  After
the MSHA investigation, Wells’ crew had some additional training.  On the day
that three members of his crew were fired, Wells was present only for the first
round of questioning.  Tr. 192.  The first member interviewed was Soto,
followed by Watson.  This occurred in Blaskovich’s office.  Wells works
directly for Blaskovich and Mitchell.  Wells involvement was limited, as he was
there only as a listener.  Wells’ account of Soto’s answers to the questions
was consistent with the others who testified.  Wells stated that Soto was asked
if he brought beer to the mine that morning and he admitted to doing so.  Tr.

194.  When asked where the beer was, Soto informed that it was in the trunk of
the car and that the car was in the parking lot.  Id .

Wells
did not think that they asked if Shane or Estella knew about the beer because
Marcos told them, “I bought it and I brought it.  The other guys had nothing to
do with it.”  Id .  Wells was sure that Marcos took sole responsibility. 
He offered no excuse, such as any claim that it was not on mine property.  He
informed that the beer was in the trunk of the car.  Tr. 195.

When
Watson was then interviewed, Wells’ role was again that of a listener.  Tr.

195.  Watson was asked if he knew that [Soto] had bought beer and he told them
he did not know that.  Tr. 196.  Watson told them the car with the beer was his
car.  Gene Estella was also interviewed and he too was asked if he knew about
[Soto’s] beer.  He stated he did not know about the beer.  Tr. 196.  They asked
where he was sitting in the car and he informed that he was in the back seat. 
Tr. 197.  He also stated that he went into the store with Soto, but that he did
not see what Soto was buying.  Tr. 197.  Once all three had been interviewed,
they were taken down for a drug and alcohol test.  Tr. 197.  Wells was told to
“go through the fridge and the cupboards and the trash cans to look for any
beer cans . . . [for] [e]vidence or whatever,” but Wells found nothing.  Tr.
198.

Later,
Wells was called back in for the second round of questioning.  This occurred
not long after the first round.  Except for Soto, the others were called back
in for more questioning.  Tr. 199.  According to Wells, the second round of
questioning occurred before the employees were sent down for drug and
alcohol testing.   Id .  The Court inquired about the new phase of
questioning: “The second round, was it like the first round, they brought them
in one at a time?  Or were all three of them there for the second round at the
same time?”  Wells informed that the same procedure was employed; each employee
was questioned separately, one at a time.  Tr. 200.  As noted, for the second
round, Wells again was there strictly as an observer.  Tr.  200-01. 

During
the second interrogation, Estella was asked again if he knew that Soto had
brought beer.  Wells stated, “[Estella] said -- I think he said, ‘Yes, now that
[Sotto] told me, I -- "I know.”  Tr. 203, 213.  To be clear, Estella stated
that Sotto had told him about the beer after the first round of
questioning, so that it was only then that he became aware of it at the time of
the second questioning.  Tr. 204.  According to Wells, the questioners challenged
Estella’s account, stating that he was right next to Sotto and therefore had to
have known about the beer.  However, Estella told his examiners that he was
ahead of Sotto at the store checkout line.  Id .

After
the second questioning, the employees were taken down for urine and alcohol
testing.  Tr. 206.  Neither Mitchell nor Blaskovich ever asked Wells for his
view on what action should be taken against the three.  Tr. 207.  Wells
considered it unusual that they did not seek his viewpoint.  Wells’ recollection
was that he did express whether termination was appropriate before the first
interviews and he told them that they were all really good employees.  Tr.

208.  However, before he uttered that view, Mitchell said words to the effect
of “[w]ho are we going to fire first?”  Id . Wells also stated that to
the best of his recollection, he had never ‘written them up’ for anything
negative.  That was modest, because in fact his write-ups involved positive
things they had done.  Tr. 208-209.  

Directed
to the employee handbook at page 12, and the 28 or so examples of misconduct
listed there, Wells, after reviewing that list, saw none that applied to
Estella.  Tr. 211.  Wells was never informed of the reason for the employees’
dismissals; instead he was told only of the conclusion that “after the
investigation was done, that the findings were they were terminating all
three.”  Tr. 212.

When
further directed to item 16 from the employee handbook, providing, “[k]nowingly
giving false or incomplete information which would affect the performance of
your duties, other employees, or the course of an investigation [concerning] .
. . Newmont operations,”  Wells couldn’t state if that applied to Estella, as
he was not at the store and therefore could not comment about the events.  Tr.

212.  Although neither Mitchell nor Blaskovich told Wells that Estella gave
false information, after the questioning sessions, they stated to him that it
was their belief that Estella was lying as to whether he knew there was beer in
the car.  Tr. 213. 

Wells
was also asked about the “Corrective Action Procedures” from the employee
handbook at section 2.3.  Tr. 214.  Asked if the procedure applied was typical,
Wells first stated, in so many words, that his involvement in such matters had
been minimal.  Id .  However, he was then directed to read from that
section of the handbook’s provision that the disciplinary “actions include the
following:  recorded verbal warning, written warning, final warning, and
termination.”  Tr. 215.  He then agreed that this was the procedure the he
would normally use.   Id .  In this instance he had no idea who determined
that termination was warranted.  Tr. 215-216.  Continuing with the handbook’s
provision, Wells then read from section 2.3.3 which provides that “[t]he level
of corrective action for any violation, including attendance, will depend on
all of the circumstances involved, including the severity of the misconduct,
willfulness, history of corrective action, and  any other considerations.”  Tr.

217. As noted, Wells was never asked for his thoughts about the severity of
     the matter. 

Wells
did offer to Mitchell and Blaskovich for their consideration, “that all of them
never missed a day, never called in, and that the only time they were -- had
any paperwork at all, it was good paperwork.”  Tr. 218.  In reaction, Mitchell
and Blaskovich acknowledged to Wells that “it's never happened before -- or
that they know of, so they would have to call other mine sites so they can be
consistent.”  Id .  However, he was never advised if that transpired or
what was learned.  Id .  Instead, he was told to make arrangements for
employees to do overtime, in order to compensate for the three who were
suspended.  Id . Wells was not involved with any of the employees’ appeals. 
Tr. 219.  The Court then asked if Wells, with his 19 years with Newmont if he
ever could “recall any incident similar to that where an employee was fired for
having alcohol -- no test, no positive test -- but alcohol in a vehicle, no
consumption . . . where some other employees were fired for something similar
to what happened here?”  Tr. 221.  Wells answered, “No.”  Id .  The Court
considered all of the matters raised during the cross-examination of Wells. [10]   

Testimony of
Complainant Gene Estella

The
Complainant, Gene Estella, testified.  He had been employed by Newmont for 11
years, at three different sites.  At the Phoenix mine he worked for nine years,
with two and a half of those at the copper leach operation.  Tr. 275.  Estella
stated that he had a good relationship with Wells and Wells’ supervisor,
Blaskovich.  Estella similarly had a good relationship with James Polanco,
Blaskovich’s predecessor.  Tr. 276.  Estella was the control room operator in
the copper leach area, in the role of a tech 5.  Whenever he saw a safety
issue, he would correct it himself or inform his supervisor of the problem. 
Tr. 277-78. 

In
the spring of 2015, Estella informed Wells of safety concerns he had with his
crew.  Tr. 280.  Wells was responsive, at least for concerns that he could
address.  Design changes, for example, were outside of Wells’ authority.  Tr.

280.  In that same spring, Estella also stated that he had safety issues, not
with his crew, but rather with the actions of the other crews.  Tr. 282.  In
particular, he cited his concern about “[a]ccess to the stripping machine while
it was running.  The fire alarm system and the pumps was concern of mine also,
and other crews.”  Id .  The audible alarm problem was that pumps were
supposed to run if there was a fire.  Id .

Estella
stated that he shared his safety concerns with other employees during that
spring of 2015, and that a plan was made with Javier Esquibel and Marcos Soto
to call MSHA.  Tr. 283-84.  Kyle White had similar safety concerns, but Estella
spoke “very little” with him.  Tr. 284.  Estella stated that he told both
Esquibel and Soto that he was going to call MSHA, a decision he made around
Memorial Day 2015.  Id .  Estella stated that, in fact, he did make one
call to MSHA.  Id .  His call to MSHA was about 30 minutes long.  Tr.

285.  His complaint encompassed the audible alarm and the pumps, as they are
linked together, and the lack of training and the stripping machine lock out
and procedure.  Id .  He made the call anonymously to the MSHA hotline on
a phone he borrowed, from Monica Simpson.  Tr. 297.  As noted, Ms. Simpson is
his girlfriend’s daughter.  Tr. 285.  He used that method in order to avoid
being linked to his own phone.  Tr. 286.  Estella expressed his concern about
the risks in calling MSHA with both Esquibel and Soto.   Id .  Later,
though not right after he called MSHA, Estella revealed to Esquibel that he had
made the call.  Tr. 287.  Esquibel works on the C crew.  Id . Estella
also informed Soto that he had called MSHA.  Tr. 289.  This occurred on the day
before they went back to work after the Memorial Day Holiday.   Id .

Upon
Estella’s return to work, he learned that MSHA had been at the mine on June 2nd
and 3rd.  Id .  Estella asserted that his complaints to MSHA were covered
by the subsequently issued MSHA citations.  Tr. 290; Plaintiff’s Ex. 2.  That
matter pertained to entering the moving machine parts area of the stripper
machine without de-energizing it and not locking and tagging.  Id . 
Estella affirmed to the Court that was one of his complaints made to MSHA and
that he made that complaint to MSHA prior to the citation being issued.  Tr.
290-91.  Similarly, Plaintiff’s Ex. 3, another citation, encompasses another
complaint he made to MSHA during his hotline call.  Tr. 291.  That one related
to the fire system, with the functional alarm disconnected inside the control
room and a fire pump not functioning.  Id .   

Estella
agreed that the MSHA citation went further as it involved more than the audible
alarm, as it included the fire pump too.  Tr. 292.  Estella affirmed that Esquibel
also called the MSHA hotline and later told Estella about that, but not until a
week or two after MSHA appeared at the mine to conduct the inspection.  Id .
Plaintiff’s Exhibit 4, Estella affirmed, is another citation issued to the mine,
and it too pertains to a specific complaint he made to MSHA during his call. 
This one involved miners not being task trained in the tank house.  Tr. 293. 

When
Estella was suspended, on the 17 th , it was the last day of the
rotation.  At that time he was working on the day shift.  Tr. 294.  Estella
carpooled with Soto and Watson that day, with the latter being the driver.  Watson
picked up Estella around 5:00 a.m.  The group then traveled to the Midway
Market, which was a custom for them.  Tr. 296.  Soto and Estella entered the
market, while Watson stayed with his vehicle.  Id .  Estella purchased a
burrito and then a drink from a display near the checkout counter.  He did not
see Soto at that time, and he paid for his purchase and left the store.  Tr.

297.  He did see that Soto and Heese were heading towards the checkout when he
left the store.  Tr. 297-98.  Estella proceeded to Watson’s car and Watson
opened the car’s trunk for him.  Tr. 298.  At the trunk, Estella put his items
in his lunchbox.  Unable to find his gate badge card, because it was dark, he
brought his lunch box to the car’s back seat, entering on the passenger’s side,
and then made use of the car’s dome light to continue searching for his badge. 
Tr. 299.  At that time, Soto was leaving the store.  Estella did not see what
Soto had bought; he only noted that Soto had white bags.  Tr. 300.  As he was
entering the back seat of Watson’s car, Estella observed Heese leaving the
market.  However, there was no communication between Heese and Estella.  Tr.
301.

The
group then proceeded to McDonald’s.  Tr. 301.  Though a visit to McDonald’s for
breakfast was not part of their routine, Soto was treating that day.  Id . 
They used the drive-thru.  From there, the trio went to Newmont’s Phoenix mine,
a trip that takes about 20 minutes.  Tr. 303.  They were on time, but close to
being late.  Id .  Estella then left the car and went to the gate to
clock in.  He was the first of the group to enter.  On that day Estella was
working in the control room.  Tr. 305.  After changing into their work gear in
the locker rooms, he went to the control room.  The D crew assembled for a
safety meeting and Wells was present for that as well.  Tr. 306.  Estella did
not see Watson or Sotto after that meeting until they had come to the control
room after the car had been searched.  Id .  The next event after that
was Newmont performed a lunchbox search in the control room.  Tr. 307. 
Mitchell then told Estella that the issue was “suspicion of alcohol.”  Id.   Estella
testified that he did not know what Mitchell was talking about.  Id . 
Estella’s lunchbox, which was right there in the control room, was searched but
no alcohol was found.  Id .  They then conducted a locker search, with
Mitchell still presiding in the searches.  Again, Newmont found nothing.  Tr.

308.  Following that, they proceeded to Blaskovich’s office.  In attendance
were Estella, Wells, Mitchell and Blaskovich.  They didn’t announce the purpose
of the meeting; they simply started asking him questions.  Id . 

The
questions posed to Estella were whether he knew that Marcos had brought beer to
work and what kind of car Watson drove.  Id .  Estella replied that he
didn’t know that Marcos had brought beer and he only knew that Watson’s car was
white.  Id .  Estella could not recall if the examiners advised him about
the incident at the Midway Market or Heese’s presence at the market that
morning.  Tr. 309.  Estella was then led for a drug and alcohol test in the
company of Heese and a security guard.  The results of that test were
negative.  Id .  Following that, Estella was then taken to the control
room by Wells and he began to perform his job operating the control room.  Tr.
310. 

Estella
next saw Watson and Soto after they returned from Watson’s car in the parking
lot.  Soto and Watson told him that management had searched the car.  They also
then told him what was going on, namely that Soto had brought beer in a cooler
and forgot to drop it off at home before heading to work.  Tr. 310.  Estella
had heard Sotto mention his cooler earlier but he didn’t “put it together”
until Soto told him of the beer.  Tr. 310-11.  Estella knew that alcohol and
drugs were not allowed on the property and that it was a fireable offense.  Tr.
311-12.  He knew this as a matter of common sense – if one “show[s] up drunk, you’re
going to get fired.”  Tr. 312.  However, he did not know of anyone who had been
terminated for drug and alcohol use at the mine.  Id.

After
he was in the control room with Watson and Sotto, Estella was then again called
back into Blaskovich’s office.  Tr. 313.  Those present with him were the same
group as before: Blaskovich, Wells, and Mitchell.  Id .  They asked
Estella if he would like to change his story.  Estella said “yes.”  Id . 
But the change to his story is more accurately described as an updating ,
as he told them, “that Marcos Soto informed me that he had alcohol in the
vehicle.”  Tr. 313-14.  The group specifically asked Estella if he had seen the
beer and he informed them, “No.”  Tr. 314. 

The
Court then stepped in, asking: “When was the first point in time when you
became aware that Marcos [Soto] had beer in Watson’s vehicle?”  Estella
responded, “When they came up from the car search in the control room.”  Tr.

314.  The Court inquired further, “Is it your testimony that prior to that
point in time you had no knowledge that there was beer in that vehicle?” 
Estella answered, credibly in the Court’s assessment, “Correct.”  Id . 
Soto was the person who initially informed Estella of this in the control
room.  Tr. 315.  

Due
to its importance, the Court decided to delve further on this issue, asking,
“When he informed you of that was that after your first interview with
people about this incident?”  Tr. 315 (emphasis added).  Estella responded,
“Yes.”  Id .  The Court probed further, asking, “So you had one interview
with the people, you say you know nothing about alcohol; is that right?”  Id . 
Estella affirmed, “Correct.”  Id .  The Court continued, “Then . . . you
meet with [Watson and Soto] . . . [i]n the control room?”  Id .  Again,
Estella affirmed that was correct.  Id .  The Court then asked whether,
“It's at that point in time that Marcos [Soto] tells you he had beer in the
vehicle?” and again, Estella affirmed, “Yes.”  Tr. 315.  To be sure of his
testimony on this point, the Court asked, “And that's the first point you knew
of it?”  Id .  Again, Estella answered “yes.”  Id .  Continuing,
the Court asked, “You had no clue -- It's your testimony under oath that you
had no clue there was beer in that vehicle until that moment in time?”  Tr.
315-16.  Again, Estella responded, “Yes.”  Tr. 316.  The Court determined that
Estella’s testimony was truthful in his responses to these particulars. 

Newmont’s
Phoenix Mine questioners asked Estella if he would have said something to Soto
if he had known about the beer, and Estella responded that he would have said
something.  Tr. 316.  Not insignificantly, Estella then brought up a pertinent
point asking, “why didn't Dayne Heese say something to him when he was in there
with him?”  Id .  The response, in Estella’s view, offered no good
reason:  “They didn't really give me a good response on that.  We kind of --
after that we kind of got arguing.”  Id .  The meeting then became “a
little contentious,” with Estella “kind of getting upset.”  Tr. 317. 

Estella
stated that there was no recording of the meeting, although he believed that
someone from management was taking notes.  The second meeting lasted about ten
minutes.  Tr. 318.  Following its conclusion, he was told that he was suspended
until further notice.  He then went to the lunchroom and waited there, alone,
for about 15 minutes.  After that, Soto and Watson entered the lunchroom.  Tr.
317-19.  Blaskovich then drove Estella and Sotto home.  Tr. 319.  They were
advised that Newmont would be in contact with them.  There was no contact from
June 17th until the 23rd, and a meeting ensued on June 24th.  On the 24th,
Estella met with Mitchell and Blaskovich at a Newmont building in town.  Tr.
320-21.  Estella was told at that meeting that he was terminated, with the
reason given as, “off the job behavior that adversely affected the company.” 
Tr. 321.  Estella appealed that determination, seeking reinstatement.  During
that meeting he was not asked again about his knowledge of the beer.  This was
the first time he was given a reason for his firing.  Tr. 322.  Concerning his
appeal, Estella was advised that he would have a meeting with John Cole and
that occurred some 14 to 16 days after the meeting announcing his firing.  Tr.

323.  Mitchell was also at that subsequent appeal meeting.  Oddly, Cole asked
Estella to tell him about the events, as he didn’t know much about what
happened.  Tr. 324.  Estella repeated the events, reiterating that he had not
seen the beer.  When the meeting ended, Cole advised that he would get back
with Estella.  Id . 

During
the time between his suspension and his meeting with Cole, Estella filed for
unemployment benefits.  He was denied those unemployment benefits, and he then
appealed that determination.  Exhibit P 20 is a decision regarding
unemployment, a letter to Estella, dated July 21, 2015.  Tr. 327.  Exhibit P 20
reflects that Estella was discharged for off duty behavior which adversely
affected his employer.  Tr. 328.  Thus, the Court notes that Estella’s
testimony regarding the reason Newmont gave for his termination and the
unemployment letter are in concert as to Newmont’s first claimed basis for his
firing.  See Tr. 320-21.  The Court finds that Estella’s testimony is
the more credible basis for Newmont’s initial, professed, justification. 

Subsequently,
Cole advised Estella that he was upholding the original determination.  Tr.

329.  Estella informed that he would be appealing that determination, which
involved a meeting with the mine manager, Ms. Cecile Thaxter.  Tr. 330.  While
awaiting the appeal with Thaxter, Estella’s appeal before the unemployment
division was continuing.  Upon meeting with Thaxter, Estella continued to seek
reinstatement.  Tr. 331.  At his meeting with Thaxter, Mitchell stated that he
was being terminated for not being truthful in an investigation.  Tr. 332. 
This was the first time that basis, a lack of truthfulness, was asserted by
Newmont.  Id .  Estella questioned Mitchell about the other reason that
had been asserted, the beer on premises, and Mitchell stated that was not the
reason.  Estella then presented Mitchell with the unemployment division letter
stating that was the reason.  Tr. 333.  That is, Estella presented to
Newmont the reason that Newmont gave to the unemployment division for his
termination.  Id .  Subsequently, Estella was able to have his
unemployment benefits reinstated.  Tr. 339. 

Upon
cross-examination, Estella agreed that he was aware of the company policy
regarding alcohol, including that alcohol was not allowed at the company’s
parking lot.  Tr. 341.  Estella agreed that during his appeal process he
never asserted that he was being wrongfully terminated because he made a safety
complaint to MSHA and Newmont knew about such complaint.  Tr. 342.  In the
Court’s view, that proves nothing – it does not diminish the merits of
Estella’s claim as that was hardly the setting for him to raise such matters. 
He was, after all, seeking to be re-employed by Newmont.  Further, as explained
infra , Newmont’s actions towards Estella made no sense other than to
demonstrate that its termination stemmed from Estella’s safety complaints, and
that it seized upon the beer incident to exact punishment for making them. 

In
further questioning about the incident at the market, Estella acknowledged that
the Midway market is a small store.  Tr. 345.  Estella reasserted that he did
not notice that Soto was carrying a bag of ice.  Id .  He agreed that he
did see Heese and Soto at the checkout line as he was exiting the store.  Tr.

346.  Estella also reasserted that he did not see that Soto had beer on the
checkout belt.  Id .  Estella stated that, as he was entering Watson’s
car, he saw Heese exit the market.  Tr. 347.  Estella did express that, in his
opinion, it was Heese’s responsibility to say something about the beer while at
the market. 

As
noted, on June 25, 2015 the Nevada Department of Employment was advised that
Estella was discharged for off-duty behavior.  Tr. 322, Ex. P 19. [11]  
Thereafter, on July 8, 2015, Newmont asserted that Estella’s discharge was
attributable to being “involuntarily separated for unacceptable job conduct –
knowingly gave false or incomplete information during the course of an
investigation.”  Ex. P 19 and Tr. 350-51.  However, in the Employment
Department’s July 21, 2015, the decision denying benefits again reflects that
Estella was discharged for off-duty behavior which adversely affected his
employer.  These exhibits were offered to show that Newmont changed the reason
for his discharge.  Tr. 353.  Acting on his own, and without the assistance of
legal counsel, Estella appealed the initial denial of unemployment benefits.  Id . [12]

Respondent’s
Counsel then asked Estella about Ex. P 15. [13]   That exhibit is the statement
made by Estella in his attempt to obtain unemployment benefits.  Estella stated
that the letter was typed by his girlfriend.  He had written out his
unemployment statement and she typed it, but Estella stated that he believed it
accurately recounts what he stated.  Tr. 357.  The exhibit can be viewed as
problematic for Estella, but the Court’s reaction is that it must focus on the
Mine Act discrimination complaint, not the remarks he made in seeking
unemployment benefits.  In this regard it must be noted that Respondent’s
Counsel wanted to have unemployment matters both ways, seeking to invoke such
matters when helpful and to distance those decisions when disadvantageous. 

Estella,
directed to Exhibits R-5 and P-15, [14]
agreed that he stated “I admitted to hearing Marcos ask if we could stop by his
house to drop off the cooler with beer in it[.]”  Tr. 358.  Estella then stated
that he made that admission during the second meeting with his employer
on June 17, 2015.  Tr. 358.  Estella was unsure but believed that he filed his
discrimination complaint with MSHA around July 24, 2015.  Tr. 359.  Estella
affirmed that he specifically discussed the pump situation, meaning the control
panel, in his complaint to MSHA.  Tr. 360.  Shown Ex. P 3, Estella stated that
in his complaint to MSHA he talked specifically about a fire pump
malfunctioning.  He also brought up the issues of wires being cut on a fire
alarm and task training.  His call to MSHA included the stripper machine and
the lack of task training for that for the younger employees.  Tr. 362.  He
also brought up lock out procedures as an issue.  Estella did feel that those
on his crew, the D crew, were adequately trained.  Tr. 363.  As an example of
his awareness of the inadequate training for some of the younger employees on
the other crews, Estella cited learning of this when those other crew members
worked overtime and how his crew would straighten them out, explaining how to
do things correctly.  Tr. 364.  Estella affirmed that if Wells was unavailable,
he would fill in for him as the shift relief foreman.  Id .   

Estella
was then shown Ex. R 11, the Newmont employee handbook.  Tr. 366.  He admitted
receipt of the handbook when he was hired.  Ex. R 8 is Estella’s
acknowledgement of receiving the handbook, dated April 29, 2012.  Tr. 368. 
Estella stated that he had a good relationship with Wells, Blaskovich, and had
no problems with Mr. Cole.  As for Cecile Thaxter, he stated that he didn’t
really know her.  Tr. 370. 

Estella
stated that he informed Soto before Memorial Day, 2015 that he intended to call
MSHA.  Tr. 370.  Shown Respondent’s Ex. R 1, Estella stated that the first two
pages are the discrimination report papers he completed when he filed his
complaint with MSHA, dated July 24, 2015.  He stated that he waited to file his
complaint with MSHA until July 24, 2015 because he first wanted to exhaust his
appeals within Newmont’s appeal process.  Tr. 372.  The Court notes that it
accepts this assertion as it makes sense in the totality of the events here. 
First and foremost Estella wanted his job back.  A good employee of
long-standing at the Phoenix Mine, Estella believed that the real reason he was
terminated was because he called MSHA.  Tr. 373.  The Court agrees and so
finds.  Estella also believed that his character has been damaged within the
mining industry because he is now known to have called MSHA.  The Court would
agree that, as a practical matter, calling MSHA with safety or health
complaints is likely not to be applauded by the mining industry in general; it
is effectively a scarlet letter for those miners who are so identified.  Indeed,
Thaxter admitted that Newmont was not thrilled by the complaint having been
lodged and it would be naïve to think that its only irritation would be that there
were safety issues without regard to the source that brought them to light. 
Tr. 903-906. 

In
his Complaint filing with MSHA, Estella listed Dayne Heese first and then
Mitchell, Cole, Blaskovich, and Thaxter for the discriminatory action against him,
although he could not name any specific discriminatory action taken by them
when he filed his claim.  Tr. 374.  This is not surprising, given the
circumstances, that the Complainant or any complainant would know such
information.  Inherently, at that stage the best a complainant can do is name
likely suspects.  Estella confirmed for the Court that those individuals were
listed because they were part of Newmont’s management.  Tr. 375.  Estella was
then shown Exhibit R-2, which is the letter from MSHA denying his
discrimination claim.  Tr. 376.  Of course, an MSHA denial of a discrimination
claim is only that – it carries no other import, or silent suggestion, that the
complaint is without merit.  MSHA’s conclusion is that there is insufficient
information to meet the preponderance of evidence standard and nothing more. 
MSHA can get it wrong however, as occurred here, a fact Congress recognized by
including the provision for a miner to proceed on his/her own with a claim. 

Exhibit
R 3 is Estella’s appeal to the Commission of the denial of his claim, dated
October 5, 2015.  The appeal was drafted by Estella’s attorney, and the Court
would note that there is nothing unseemly about that.  This is part of the
attorney’s role in representing the client.  That appeal letter stated: “I'm
certain that they have recognized that the reason given for my termination is
only an excuse, but I feel that their final decision is based on wanting to
send a message to current employees that if you utilize MSHA's complaint reporting
process you will no longer have a job at the mine.”  Tr. 378-79; Ex. R 3. 
Estella agreed with the assertion by Respondent’s counsel that “[i]n [his]
appeals process not once did [he] raise the issue that [he] believe[d] that
[he] [was] being discriminated against or defamed because [he] had called
MSHA.”  Tr. 379.  The Court wanted the record to be clear that, regarding the
questions posed to Estella about not raising the issue of his termination based
on Newmont wanting to send a message to its employees for those who might contemplate
calling MSHA, his failure to make that claim was in the context of appealing
his termination within the Newmont’s appeal process.  Id .  The
point is that one would hardly make such a claim before one’s employer when seeking
to have that employer grant reinstatement.

Estella
was then shown Ex. R6, which is the August 4, 2015 interview he had with MSHA
investigator Kyle Jackson.  Tr. 380.  Estella did express a worry for Wells,
fearing that if there was any perceived link between him and Wells, it would be
a problem for Wells.  As Estella put it, “he will bear the wrath of it and it
was my - ”  [Estella’s answer was interrupted by Respondent’s attorney, asking
the basis for his claim that Wells would bear the wrath of Newmont.]  Tr. 382. 
Estella then continued, “Just you don't want to be linked with calling MSHA. 
You want to keep it as quiet as you can.”  Id .  This theme of Estella
has been mentioned earlier in this decision.  The Court does not believe
Estella’s perspective is irrational. [15]  

Turning
to Newmont’s code of conduct, in further cross-examination, Estella agreed that
it is his responsibility as an employee of Newmont to abide by that code.  Tr. 

383.  He also agreed that he had observed the mine property signage, per
Exhibit R 16, prohibiting alcohol, drugs or firearms at the site.  Tr. 384. 
Estella, it will be recalled, was not terminated for any alcohol, drug or
firearm violation.  Estella also agreed that during his second meeting on June
17th, he told Mitchell, Blaskovich and Wells that he was “old school,” meaning
that he was not a tattletale.  Tr. 385.  The Court inquired about Estella’s
education level and he informed that he finished high school and went to
community college for auto mechanics but did not finish that program.  Tr.
387.  

The
Court also inquired why it was that Estella never asserted to Newmont that they
were firing him because he made a safety complaint.  He responded, “You know, I
don't know.  I thought if I could appeal it that I would get reinstated.”  He
explained further, “I was just because of the -- because of why they told me
they fired me is what I was going after.”  Tr. 388-89.  Asked when he first
came to believe that the real reason he was fired was for making a safety
complaint, Estella stated “After, what is his name, [Esquibel] expressed to me
that he mentioned my name.”  Id .    

Also,
in answer to the Court’s inquiry, Esquibel stated that the first time he was
told that he was fired for knowingly giving false or incomplete information was
when he had his interview with Mitchell and Thaxter.  Tr. 390.  The Court then
asked Estella about Ex. R 5, directing his attention to middle paragraph of the
second page of that exhibit and, noting that it was a document that he signed, noted,
“It says I admitted to hearing Marcos ask if we could stop by his house to drop
off the cooler with beer in it.  They thanked me for being honest and then
informed me that I was suspended until further notice.”  Tr. 392.  The Court expressed
that passage sounded like Estella admitted that he did know about the beer in
the cooler.  Estella agreed that it sounded like that but explained that he
didn’t word his answer very well.  Given that, the Court then asked of Estella
just what was “the truth of the situation.”  Id.   Estella explained,
that he “didn't admit to the cooler full of beer.  I admitted -- Well, he
[Soto] told me previously when we were in the control room what was in the
cooler and then I told them that he told me that he did have a cooler in the
beer or beer in the cooler.”  Id . 

The
Court expressed to Estella that the apparent conflict was a troublesome part of
his case.  Estella reiterated that the letter with the troublesome language was
typed by his girlfriend.  The Court pursued this line of questioning with a
last inquiry,

What
is the truth of the matter, Mr. Estella?  Did you admit to hearing -- did you
admit to Newmont, did you admit to Newmont hearing that Marcos [Soto] asked if
all of you could stop by his house to drop off the cooler with beer in it, did
you admit that to Newmont?” 

Tr. 393.

Estella
responded, “No.”  Id .  Thus, Estella maintained that the words expressed
there were not correct.  Id .  Further, he repeated that he never made
such an admission to Newmont.  Id .  The Court finds that,
notwithstanding the language used in the letter (Ex. R 5) that within its four
corners the letter contradicts itself on this question and therefore is
equivocal on the issue, and perhaps more importantly, the Court finds that
Estella’s testimony on the issue was credible – he only admitted to knowledge
of the alcohol after the first interrogation, when Soto disclosed his
violative behavior about the beer to him.

On
redirect by Attorney Amens, Estella affirmed that he had made a general
complaint about training.  Tr. 396.  He also complained to MSHA on its hotline
about the stripping machine.  Id .  He stated that when he filed his
complaint with MSHA, per Ex. R 1, he did not have legal counsel.  Estella read
from his statement to MSHA investigator Jackson (Ex. R 6) that he was
wrongfully terminated for being revealed as an employee that contacted MSHA.  Tr.

398.  His interview with Jackson was after he had been fired by Newmont.  Id . 
Estella did not type that claim; it was prepared by MSHA.  Tr. 399.  In one of
his responses to the MSHA investigator, Estella named Dayne Heese as one of the
persons that heard Estella’s name mentioned in the control room.  Tr. 400. 
Estella reaffirmed, and the Court finds credible, that he waited to file his
discrimination complaint because his primary interest was in being reemployed
by Newmont.  The Court construes this approach to speak well of the
Complainant, as he was foregoing a discrimination complaint in the hope of
being reemployed.  Also, as noted in this decision, Newmont’s actions against
Estella, so out of proportion to the mine’s claimed offense of Estella being
initially untruthful, supports the Court’s conclusion about the driving force
behind its action against complainant.  Tr. 402. 

On
continued redirect, in attempting to address Estella’s conflicting remark in
his letter to the employment division that he admitted to hearing Soto state
that he needed to drop off the beer, Estella reaffirmed that he never admitted
to Newmont that he knew of the beer in the car.  Tr. 407.  Estella explained that
the sentence in his unemployment statement was inaccurate, and he attributed it
to Marcos [Soto] and his girlfriend all being present with him, when his
girlfriend typed the statement.  Estella’s girlfriend typed up both his and
Soto’s unemployment claims.  Tr. 410.  Both were typed at the same time.  Tr.
413-14.  As noted, the Court finds, in the context of the entire letter, and
considering the record in its entirety, that Estella’s assertion is credible. [16]

Thus
the Court finds that it is understandable that Estella’s letter could reflect a
lack of articulateness, [17]
in that Estella did learn of Soto’s admission about the beer, but that such
knowledge was acquired after Newmont’s inquisition began, between the first
and second questioning.  Estella himself made this clear, stating, “I told them
that I did know what was in the cooler after I talked to Marcos [Soto] in
the control room.”  Tr. 407.  (emphasis added). 

Continuing
with this issue of Estella’s statement to the unemployment division, the Court
noted that it would be helpful to see Estella’s girlfriend’s letter that she
typed for Estella.  Complainant’s Counsel states that letter was provided to the
Respondent.  This was identified as P 6.  Tr. 412.  Again, Estella backed away
from his statement in that document, asserting that it is inaccurate with the
claim within it that he “admitted to hearing Marcos ask if we could stop by his
house to drop off the cooler with beer in it.  They thanked me for being honest
and then informed me that I was suspended until further notice.”  Estella
affirmed that statement is inaccurate.  Tr. 416.  In addition, Estella asserted
that he made it clear during the Newmont questioning that he only learned of
the beer when he and Marcos were in the control room after the first round of
questioning.

On
re-cross examination, Respondent’s Counsel revisited Estella’s claim that he
didn’t bring up his safety complaints to MSHA when before Newmont because he was
afraid of the repercussions.  His concern was not limited to Newmont’s reaction,
as he believed that any mining operation would not view him favorably, if he
were known as one who called MSHA.  The Court then commented,

In
context my understanding of his testimony was that he was saying that if he
were to disclose he called the MSHA hotline and that became known in the mining
community that he was the type of guy that would call the MSHA hotline, he
viewed that as being not helpful to his future job opportunities, and I think
that's a reasonable conclusion for one to reach.

Tr. 419-20. 

Estella’s belief
about that company reaction was based upon his entire experience with his
mining community acquaintances – if one is branded as an MSHA caller, “your mining
career is done.”  Tr. 420.  Estella reaffirmed that he heard Esquibel say that
MSHA investigator Jack Stull asserted to Esquibel that Estella would be
protected.  Tr. 421.  While Estella agreed that his annual training informs
that one can contact MSHA without fear of retaliation, he responded “Yes, they
say you can.”  Tr. 422 (emphasis added).  The Court would comment that,
clearly, Estella did not buy into that claim, which the Court views as
reasonable. [18]

Respondent’s
Evidence

Testimony of
Dayne Heese

The
Complainant then rested and Respondent called its first witness, Dayne Heese. 
Tr. 426.  Heese is employed at Newmont’s Phoenix mine.  His title is “[s]enior
manager of health, safety and loss prevention.”  Tr. 427, 546.  His work at the
mine began around September 2012.  Five people report to him; Jeneca
Fitzgerald, Josh Wiley, Kerry Tuckett, Deb Teskey, and Jade Austin.  Tr. 428. 

Mr.
Heese has about 40 years of mining experience.  He described his educational
background as follows:

I
have got a high school education.  I've got lots of college classes that I've
taken, training classes, certification, lots of certifications in loss control
management.  I went through the ILCI program, the auditing programming.  That's
the International Loss Control Institute.  It's now DMV. . . . I'm an EMT.  I
still hold my EMT license. 

Tr. 431

Asked
whether “the [mine’s] health and safety group over which [he was] the manager
have (sic) responsibility for administering the drug and alcohol program?”  Heese
answered, “That's correct.”  Tr. 432.  Heese answered that he was aware of, and
familiar with, Newmont’s rules concerning drugs and alcohol on the mine
property.  He added,

Well,
on two different fronts.  So they are not allowed on the mining property at
least through the 30 CFR by MSHA.  They are not allowed on property by company
policy through the employee handbook.  We reemphasize it every year at
the annual refresher, during new hire training, any time there are changes to
the drug and alcohol policy or the program we reeducate everybody on it
and there are signs on the parking lot.  There used to be signs out on the
access road as well, but we have them as you're coming into the employee
parking lot.

Tr. 432-433.  (emphasis
added).

It
was brought up by counsel for the Respondent that Mr. Heese is an ordained
minister, asking, “Are you an ordained minister?”  He responded, “I am.”  Tr.

433.  Minister Heese has served as the senior pastor of a congregation in
Battle Mountain since 2000. [19]  
Tr. 433.  

Heese stated
that it was correct that he has had “a lot of jobs in the mining industry
relating to health and safety” and that it required him “to fairly regularly
interface with MSHA inspectors.” [20]  
Id . 

Focusing
upon May and June 2015, Heese was asked about his participation with MSHA.  He
answered,

Well,
they usually come right into the building and they usually stop by my office
and let me know that they are there for a regular inspection or sometimes they
do the walk and talks and they just stop by to, you know, bring up some safety
alerts or things of that nature or they will come in with a hazard complaint,
but they usually stop and talk to me and then if I have one of my employees
available then they will go with them from there. [21]

Tr. 434.

Heese
informed that he knows about and has participated in about perhaps eight or
nine hazard complaints.  In all that time he has never heard an MSHA inspector
ask an employee who made a hazard complaint.  Tr. 435.  Addressing events
related to this action, he was asked about the MSHA inspection on June 2, 2015,
and he responded that inspector Jack Stull was at the Phoenix Mine on that date
for a hazard complaint.  Id .  He elaborated that the inspector “came in,
right into my office, said he had a hazard complaint, briefly showed me what it
was about a -- about a stripping machine, said where is this stripping
machine.  So we went for a walk and headed for copper leach.”  Id . 

Responding
to the question whether the inspector showed him information ahead of the
physical inspection with a summary of the complaints, Heese stated, “He showed
it to me, just one sheet, and it had a couple of line items on it.  The first
one was the stripping machine and that's when we headed straight for the
stripping machine at copper leach.”  Tr. 435-36.  The inspector and Heese went
alone to the stripping machine and then met Kyle White, the machine operator at
that time.  The inspector looked at access points around the stripping
machine.  The inspector inquired whether the operator knew of people accessing
that area without locking it out.  The operator advised that he did not know of
that practice.  Tr. 437.

The
group then noticed some gates that weren’t signed and locked.  Observing this,
Heese then had the stripping machine cathodes shut down until everything was
signed and correctly addressed.  Tr. 437-38.  He admitted that some signage was
down on a gate.  That sign stated that fall protection was required beyond that
point and that the machine had to be locked out before accessing.  Tr. 438. 
The party then went to the control room, where Jesse Leon was the operator for
that day.  Shown Ex. R 24, the crew schedule for May and June, Heese advised
that on the day of the inspection, the C crew, Mike Peasnall’s crew, was
working.  Tr. 439.  The inspector then inquired if Leon ever saw anyone
accessing the stripping machine without locking it out.  Leon affirmed that did
happen and he went to video footage to prove that.  Leon was looking at the
video to show the B crew failing to lock out.  Tr. 442.  Javier Esquibel, a
member of the C crew, then entered the control room.  Esquibel asked Leon if he
could run the video machine, as he was more efficient at that task.  Esquibel
then found within the video footage of an employee going over the handrail so
that the inspector could observe that improper practice.  Tr. 443.  Esquibel
then continued to go through the video to show other things that the crew was
doing improperly.  Blaskovich then entered the control room.  They continued to
look at video, with Heese present nearly, but not all, of that time.  Tr. 444. 
Heese recalled that just before he left for a moment, Mike Peasnall, the shift
supervisor for the C crew, came into the control room.  The inspector inquired
of those present if, when they observed the issues shown on the video tape,
they brought those matters to their supervisor.  They advised they did not do
that.  Tr. 445.  Peasnall stated that no one had ever brought those issues to
him and, if they had, he would have taken immediate action.  Id .

Heese
was then asked, “[d]uring the course of the time you were in the control room
with Javier Esquibel that day did [he] hear Jack Stull ask Javier [Esquibel]
who made the complaints - that led to the hazard complaint?”  Heese responded,
“No.”  Tr. 446.  Yet, when the question was raised again as to the claim that
Esquibel told inspector Stull who called in the MSHA complaint, Heese responded
later, “I don’t know.  I’m not aware of that.”  Tr. 519.  Heese stated that at
no time did he speak with Esquibel while he was in the control room.  Tr. 447. 
However, when asked how long he was in the control room with Esquibel, he
answered, “It seemed like quite a while.”  Id .  Respondent’s counsel
asked how many hours were involved, suggesting two, three or four hours.  Among
the choices offered, Heese picked two hours for his answer.  Heese agreed that
all of that time was while Esquibel was looking for instances of B crew
misconduct.  Id . 

Heese
was then asked about the MSHA enforcement actions that were issued as a result
of the hazard complaint inspection.  Shown Complainant’s Ex. 1, the safe access
violation issued by inspector Stull, Heese stated that violation was issued
“[p]rimarily because … the signs that we found that weren’t posted and then
because of the observation that we saw on camera on May 24 th , the
video evidence.”  Tr. 449.  Complainant’s Ex. 2, was likewise issued because of
the things observed on the video tape.  Heese agreed that Esquibel was able to show
events on May 9th and May 24th, regarding the violative actions.  Id .  Complainant’s
Ex. 3 involved the issue with the fire alarm.  For that one, Heese stated that
the complaint was that the wires had been cut to the fire alarm system.  Tr.

450.  Heese downplayed the violation, “not all the wires were cut.  The wires
were cut just to the warning buzzer, the audible alarm and that was for a
system failure, not a fire alarm.  It was on the system side.”  Id .  Referring
to the same Exhibit 3, Heese was asked what it meant by its statement that
“fire pump number 1 not functioning.”  He did not know what that meant.  Id . 
As best he could recall, it had to do “with a bypass valve that was in the
rectify room that wasn’t functioning properly and that’s what the system alert
was for.”  Id .  However, when Heese was asked if the system still
functioned with respect to fire protection, he answered “very much so.”  Id . 

Heese
was then asked about the vital behaviors program at Newmont.  He described it
as,

an
employee driven program and it’s based on the behavior based side of safety of
making good decisions and part of that, how they decided which vital behaviors
to use, which talking points or decision points to use for the program . . .
[and it considered things] like close calls, accidents, things, situations that
happened over the course of many years . . .

Tr. 451-52. 

Heese was then
shown Ex. R 21, which he identified as the vital behaviors that were
developed.  One of those vital behaviors is to “speak up.”  Tr. 452. 

The
Court did not find Heese to be an especially credible witness.  This
determination was made upon an overall assessment of his demeanor during his
testimony.  One such example for the Court’s determination came about when he
was asked to explain the “speak up” vital behavior.  Heese answered,

Well
what we find many times is that people feel like they can’t speak up or they
shouldn’t speak up, it’s not their place, and it’s an expectation that we
set for everybody , not just our employees, but all contractors, everyone
that comes on-site.  We expect them to speak up .  If you see
something, say something about it.  If you are concerned about something, bring
the point up.   If something needs to be changed say something.  That is
what the speak up is for.

Tr. 453.  (emphasis
added).

Yet, despite all
that he claimed to have viewed at the Midway Market that morning, Minister
Heese did none of those things. 

Heese
was then asked about the continuous safety improvement program at the mine. 
Tr. 453.  He described it as a program for employees to convey safety concerns,
ideas, and ways to make their jobs easier.  Employees are encouraged to
participate in the program and they may do so anonymously.  Perhaps reflective
of the environment at the Phoenix Mine, it does seem odd to the Court that the
program provides for anonymity, given its stated purpose. 

Shown
Exhibit R 23, Heese identified it as the field level risk assessment sheet for
tasks the workers perform.  Tr. 454-56.  He did not know if the copper leach
workers were participating but he was sure they had an opportunity to do so. 
Tr. 457.  Heese could not speak with definiteness on the issue of whether the
training for this program had been completed for the copper leach employees.  He
could only state that, “[i]t was starting to be rolled out with this particular
program to the supervisors” but he couldn’t speak to how much the copper leach
people were utilizing the cards during May and June.  Tr. 458.  Heese also
didn’t know if the hourly people had training about this program.  Id .  The
Court then intervened and advised that it could not admit R 23, at least not
with the infirmities about Heese’s understanding of its implementation.  The
Court then added that it was obvious that the document was intended to show how
safety conscious Newmont was and is and counsel for the Respondent agreed that
was the intent behind its hope to introduce the exhibit.  Tr. 460.  However,
the Court explained that it viewed the intended exhibit to be of minimal
interest in the sense that it viewed it as a cul-de-sac, in that, while the
information may be interesting and even if Newmont demonstrated that it has a
wonderful program regarding safety, the Court could still find that it
discriminated against Estella.  The two matters are not mutually exclusive. 
Instead the Court viewed the information as “an interesting side trip along our
main journey.”  Tr. 460.  Therefore, it concluded that it was not worth
spending a lot of time on it.  Id .  The Court advised that in its view
the more significant testimony from Heese was, without then opining about the
credibility of the assertion, Heese’s “statement that he did not hear Mr.
Esquibel volunteer Mr. Estella’s name when meeting with the MSHA investigator.” 
Tr. 461.  As the Court summed up its thoughts on this issue, “These other
things are interesting, but it’s not going to be that my decision rests upon
the fact that Newmont has a wonderful safety program.”  Id . 

Testimony
then turned to other subjects, beginning with whether Heese took any notes
during the course of his inspection with MSHA Inspector Stull.  Heese stated he
did take notes.  Tr. 462.  The Court then inquired whether the citations that
were issued as a result of the MSHA hotline calls were admitted as violations
or contested.  Heese stated that he did not know the answer.  Id .  The
Court was surprised by this, as Heese had just stated that he took notes during
the inspection and he admitted that he tries to offer as much mitigating circumstances
about such violations, yet he stated that he never learned of the final
disposition.  Tr. 463.  In any event, Ex. R17 reflects Heese’s notes about the
citations.  Tr. 464. 

Heese’s
testimony then turned to the events of June 17, 2015 at the Midway Market.  As
with Estella and Soto, Heese likewise was there to get some breakfast,
describing himself as a creature of habit.  According to Heese, at that time
Estella and Soto were also in the market and he first saw Estella at the cash
register, with Soto “standing right beside him.”  Tr. 465.  Heese stated that
it looked like Estella was purchasing food items.  As for Soto, Heese stated
that he had food items and “a six pack of beer.”  Elaborating, Heese stated
that “[w]hen [he] got to the cash register Mr. Estella’s stuff was already –
was being checked across by the cashier.  Mr. Soto’s stuff was on the conveyor
right next to his.”  Id .  Heese stated that he said “hi,” but couldn’t
remember which person replied hi back to him.  Heese then stated that Estella
did not exit the store before Soto.  Instead, he waited at the end of the
counter and waited for Soto to check his items.  Heese continued that Soto then
told Estella he needed to get a sack of ice.  Soto then got the ice, and
returned to the register to pay the cashier for that additional purchase.  Tr.
466. 

The
Court would note that, if Heese’s version was truthful, both Soto and Estella
would have been keenly aware that Heese had seen Soto’s beer purchase.  In the
Court’s estimation, it defies common sense to think that both Estella and Soto
would have simply brushed this aside and not considered the danger associated
with Heese’s alleged observations.  It would have been imperative in both
Soto’s and Estella’s mind that the beer, having allegedly been viewed by Heese,
would need to be dropped off at Soto’s home.

Asked
if he said anything about the beer, Heese answered, “I did not.”  His reasoning
was he “didn’t feel it’s [his] place to direct people on their days off or
their free time.  [he, i.e. Heese] wouldn’t want someone asking me why [he] was
buying what [he] was buying at the store.”  Tr. 467.

The Court would
note that Minister Heese’s solicitous manner did not require him to approach
the matter that way.  At 5:30 that morning, with the work day shortly to
arrive, he could’ve simply stated something along the lines of “Hey Marco [i.e.
Soto], a friendly reminder, there is the no liquor requirement at Newmont.”  Certainly
Heese did not hesitate to throw the hammer down on Soto and Estella shortly
after they arrived at work, his courtesy about the impropriety of mentioning
the issue having then completely evaporated. 

The
Court also concludes that Heese’s response lacked credibility with his claim
about Estella and Soto being on their days off.  The Court probed Heese on this
point, “[b]ut you’re not telling me, are you, that you thought these gentlemen
were on their day off when you saw them that morning, are you?”  Tr. 467. 
Unbelievably, Heese maintained he had no clue, “I didn’t know where they were,
if they were on their day off.  I had no idea.”  Id .  Heese agreed that
this encounter occurred at 5:00 o’clock in the morning.  The Court pressed
further, “And so you made no presumption, you had no clue as to whether they
were going to work, Mr. Estella and Mr. Marcos [Soto], you had no clue as to
whether they were going to work or just having a day off; is that right?”  Id . 
Heese answered, “That’s correct.”  Id .  Heese also admitted that,
despite his claim of having no clue, at 5:20 in the morning, “[m]ost everybody
is on their way to the mine at that time.”  Tr. 468.  On these responses alone,
the Court finds that Heese was not a credible witness but, as noted, that is
not the only basis for the Court’s strong conclusion that Heese’s testimony was
simply not credible. 

Continuing
with his recounting of the events at the Midway Market, Heese’s testimony
demonstrated that he kept an unusually close eye for the persons that he
thought might be on their day off at 5:00 that morning.  When asked if he saw
Estella and Soto after they left the market, he stated that he did observe them
after they left and that they “were behind a white Chrysler with the trunk
open.”  Tr. 469.  He placed himself as two spaces over from the Chrysler, stating,
“[t]hey were loading items into the trunk.  Mr. Estella had ahold of the trunk
lid.  Mr. Soto was standing to his left.  Mr. Soto was loading stuff in.”  Id . 

This
degree of alleged detailed recounting came from a man who claimed he had no
clue that the liquor would be an issue.  After all, as far as the minister
knew, the two might have been off that day, at 5 a.m. that morning, and not on
the way to work.  Bearing in my mind that Heese was claiming a presumption of
innocence with the beer purchase, he continued with his watchful, unusually
detailed, observations of the group’s actions, even noting that the car did not
go in the direction of work when it left the market parking lot.  Id .  Heese
then went to work, arriving around 5:40 or 5:41 a.m.  After he checked into
work he went down to the health and safety building where random drug and
alcohol testing was going on that morning.  Tr. 470.  That testing finished up
around 7:00 a.m.  The practice for the testing involves looking to see which employees
are working that day and then calling such employees’ supervisors so that the
employees are brought for the testing.  Stating he was bad with names, Heese
could not identify who was scheduled to be tested that day.  Tr. 472.  

The
Court, again surprised, asked of Heese, “[y]ou don’t know the people who were
on the crew list for that [C] crew, you don’t know the C crew list.  You can’t
tell me what people were on the list at that time?”  Heese answered, “[o]nly by
looking at the list.”  The Court queried of Heese, “[s]omehow by looking at the
list and seeing the names you’re going to remember which of those individuals
were tested that day?”  Id .  Heese answered that he could do that. 
Shown Exhibit R 24, Heese answered that Shane Watson was on the list for
testing that day.  Looking at the list, Heese stated that, upon seeing that
Estella was on the C crew list, “[a]t that moment when I looked at the crew
list, [t]hen I started to get concerned.”  Tr. 474.  His concern was that “we
would have alcohol on the mine site, that either it would be on the mine site
or being consumed.”  Id . 

Once
the testing was completed, Heese then went to see Mitchell, the mine’s human
resources representative.  As he recounted that meeting with Mitchell, Heese
told him,

what
[he] observed that morning and that [he] thought they were on their days off,
but just realized that they were on property and that they may have alcohol
on-site, [and he] told [Mitchell] that [he] saw alcohol being placed into a
white Chrysler sedan and asked [Mitchell] if he could accompany [him] down to
the guard shack to make sure that -- whether that car was on the mine site or
not. 

Tr. 474. 

Again,
in the Court’s view, this is a most implausible story, as its foundation is
that Heese believed that the three employees were on their days off, but
just realized that morning that they were on mine property and that they
may have alcohol on-site.  The hunt, so to speak, was then on in full for the 6
bottles of beer.  Heese was directed to the trio’s locker room by Mitchell and
directed to, “just be staged [sic] there in case something, the beer went in
there or, you know, what happened, just stay there, make sure that nothing went
in or out of the building.”  Tr.  476.  A security guard was sent to another
location, but Heese didn’t know where that other location was nor, apparently,
the purpose for the adventure to the other location.  Next, Estella and Soto,
with the help of a security guard, were apprehended and taken for drug and
alcohol testing.  Id .  Ostensibly, this was to rule out the possibility that
alcohol had been consumed on the mine site.  Tr. 477.  Asked if they passed the
alcohol testing, Heese answered, “[t]hey were all negative.”  Id .  No
evidence of alcohol was found in the lockers or lunch boxes either.  The
investigative crew, then consisting of Heese and a security guard then went to
the employee parking lot, and Soto was also brought along.  Id .  Watson
joined the group separately, with all arriving at about the same time.  Tr.

479.  Heese could only say that “roughly” five people were then at the site of
the car, and then that number was amended, for a total of seven people
present.  Id .  Upon questioning by the Court, Heese agreed that Mitchell,
Estella and Blaskovich were also at the site of the car.  Id .  Their
purpose was “[t]o have them open up the trunk so we could look in the car to
see if the alcohol came to the site.”  Tr. 478.  Heese then volunteered, “At
that point we didn't know if it had.”  Id .  As with much of Heese’s
testimony, the Court considered that last remark of his to be without any
credibility.

Asked
if Watson gave permission to open the trunk, Heese answered, “He [Watson]
opened the trunk.”  Tr. 481.  Heese stated that on their way to the car, Soto admitted
to him about the beer.  Tr. 482.  Worried that he might lose his job, Heese
remembered very well telling Soto he couldn’t “imagine someone risking a 60 to
$80,000 a year job over a six pack of beer.  I remember that very well.”  Id . 
Dealing with the six pack of beer, Heese reported, “we dumped all the beer
out.  We took pictures of it.  We made sure it was disposed of, because we
don't allow it on property, not even if it's in custody.  As if they were
dealing with heroin, Heese informed that he “ said let's get it destroyed so
no one can use it and they took pictures of the whole event.”  Tr. 483. 
(emphasis added).  Heese stated that marked the end of his involvement with the
matter, but he added that he wrote down that happened at the Midway Market and
submitted a statement about it, “just to document everything that happened.” 
Tr.484; Ex. R 19, Heese’s statement. 

Expressly
asked by Counsel for Respondent Newmont, if “the reason [he, i.e. Heese]]
didn't say anything at the Midway Market was because [he was] planning some
sting operation of these individuals at the site,” Heese answered, “No.”  Tr.

485. In fact, Heese contended, “I was very hopeful they weren't going out to
     the site.”  Id .  The Court does not believe Heese was truthful about this
     either.  A strong proponent of the no alcohol policy, Heese stated, “[i]t keeps
     our employees safe.  There's no -- there is no room for anybody being
     inebriated or high or anything else.  It's a matter of safety.  It cannot
     happen.”  Tr. 486.  Yet, full of innocence, he allegedly perceived no issue
     associated with his close watch of the activities that morning.  Of course, it
     should not be lost, though a tangential matter, but nevertheless significant
     factor, that no one was found to be inebriated or high or anything else.  But
     while he firmly asserted that there was no room for alcohol, as it was a
     matter of safety, Heese nevertheless found room to say nothing when he
     observed the beer purchase.

Cross-examination
began with questions about Heese’s interaction with MSHA investigator Stull on
June 2nd.  As noted, Heese agreed that MSHA’s inspections would begin first
with a visit to his office.  Thus, Heese was the point man at the mine where
MSHA inspections were involved.  Investigator Stull advised Heese of the
complaint ID numbers that MSHA received, a total of 5 complaints.  Referencing
Exhibit R 17, the complaint ID numbers brought to his attention on that date,
Heese was first asked about the complaints made and he agreed there were
three.  Tr. 492.  The inspection first went to the stripping machine.  Esquibel
came to the control room shortly after the inspector and Heese had arrived
there.  Blaskovich also was present.  As noted earlier, Esquibel took command
of the computer operation and while doing that pointed out substandard actions
or conditions to the inspector.  As to whether Heese heard Stull ask Esquibel
who called in the complaints to MSHA, Heese stated Stull did not ask but then
stated that he didn’t “remember that.”  Tr. 498.  Heese asserted that, apart
from three minutes, he was in the control room the whole time, and that
Blaskovich was there during his brief absence.  Tr. 499.  Following the
inspection by Stull, Heese met with Cole, explaining what had occurred during
the inspection.  Tr. 501.  Heese could not recall if he had a close-out
conference after the inspection.  Id .  Yet, Heese admitted that a
close-out conference is customary and that he is typically involved with them. 
Tr. 502.  Directed to his own notes, Heese agreed that he was involved in such
a conference regarding the inspection, along with Cole.  Tr. 503; Ex. R 17.  Heese
agreed that, although he spent two days with Inspector Stull, he never learned
of the results of the inspection.  Tr. 504.  The Court then asked Respondent’s
counsel to provide it with the outcomes of the inspections.  Tr. 505. 
Respondent’s counsel stated that the training citations were in contest but the
others had been paid.  Four citations were in issue, beginning with Exhibit P1. 
Id . 

Heese
agreed that he is an employee advocate, but he defined that to include
management, as he told the Court, “[t]hey are employees, too, sir.”  Tr. 509. 
Directed to Exhibit R 21, the mine’s “vital behaviors” program, Heese stated
that it applied to all employees.  One of those behaviors, as noted, is
to “speak up.”  It provides “when I see something good or bad, I will say
something.  I will communicate openly, honestly and voice my concern.”  Tr.

510.  However, Heese maintained that even though the night shift does not
finish prior to 5:20 a.m., he believed it “very plausible” that Estella and
Soto were just on a day off.  “I see employees -- Usually they are a tight
group.  They go fishing together.  They go hunting together.  It's very
plausible that they could be – if they are not on shift that they would all be
at a grocery store together.”  Though it was 5:20 in the morning, Heese still
maintained “[i]t’s possible.”  Tr. 511.  The Court would note that almost
anything is possible, but Heese’s claim, contrary to his assertion, was
decidedly not plausible. 

While
in the check-out line with Soto and Estella, Heese stated that he saw Estella
had food items, while Soto had food and beer, adding “I was really focused
on the beer.”  Tr. 516 (emphasis added).  The Court notes the inherent
incongruity in Heese admitting he was focused on the beer , while
simultaneously asserting the employees could be on their day off, buying beer
for hunting or fishing that day.  Heese was also aware that the ice was brought
to the trunk of the car.  Id .  Despite his offering an innocuous view to
explain the beer purchase – that they were off for a jaunt of fishing or
hunting that day – Heese stated,

Let
me clarify something.  The reason why this is so clear in my mind is he kept
gaining (sic) eye contact with me and I thought it was odd .  He
would look at me and he would just kind of stare me down and the same thing
happened out at the car.  Before he just -- at the trunk he gained (sic)
eye contact with me and then when he was going to get in the front seat
of the car he stood there and gazed over and looked at me like -- I just felt
-- I felt it odd .  That is why it's so clear in my mind, that whole
situation .  We're the only people in the store and he's gaining this eye
contact with me and it was just -- it's so vivid . 

Tr. 518-519
(emphasis added).

The
Court notes that while Heese stated it was “so vivid,” it did not impact his
professed belief that the workers were likely on their way for a jaunt that
day.  Tr. 519.  

Heese’s
testimony continued the next day.  Further undercutting his claim that he
presumed the beer purchase had no connection with work, and that it was all
plausibly quite innocent, ever watchful, he stated that he observed Estella and
Soto placing items in the trunk.  He added, “Mr. Estella glanced over at me.”  Tr.
537-38.  Then, he added, “Mr. Estella went up to the front door, opened the
door and he glanced back over the top of the roof towards me and made eye
contact with me again.”  Id .  Yet, suspicions still apparently
unaroused, Heese apparently did not reassess his view that the fellows were
probably off for recreation that day.

Asked
if Estella ever gave Heese a reason to believe that he would not be honest,
Heese answered, “No.”  The same was true for Soto; Heese never had a reason to
believe that he would be dishonest either.  Tr. 546. 

Further
regarding the Midway Market event, Heese confirmed that in his testimony the
previous day he expressed being “very hopeful that the men weren’t going out to
the mine site.”  Tr. 552.  He also reconfirmed that the previous day in his
testimony he stated there was no room for alcohol and that it was a matter of
safety and that it cannot happen.  Id .  Yet, despite the professed
depths of his concern and despite being an “employee advocate,” and despite
seeing the alcohol, and seeing it placed in the car’s trunk, along with furtive
looks from Estella, Heese said nothing to the employees.  Tr. 553. 

Regarding
the 103(g) complaint, Heese admitted that Newmont is not pleased when such a
complaint is made, nor is it pleased when citations or orders are issued to the
mine.  Tr. 553-54.  Heese, while not agreeing, semantically, that the
responsibility and heat for such matters falls principally and initially upon
him, effectively contradicted himself, by then admitting that he takes
“ownership” for them.  Tr. 554. 

On
redirect, Newmont’s attorney asked if Heese’s salary was affected by the number
of violations issued at the mine.  He responded, “No.”  Tr. 555.  Nor has he
ever been disciplined because of MSHA issuing citations or orders.  Id . 
As to whether the citations impacted his bonus, Heese responded, “No.”  Tr. 

562.  He repeated, “No,” when asked if there was any adverse effect to his
bonus.  Id .  However, the Court inquired further about the bonus issue. 
Heese admitted that the bonus for 2015 was given out in March and he stated
that he received a bonus.  Tr. 566.  It is fair to state that Heese was
initially not forthcoming about the bonus issue.  In that connection the Court
asked, “Did you receive a bonus for 2015?” and Heese answered, “Yes.”  Asked
what the bonus amount was, Heese responded that he did not remember.  Inquiring
about the bonus for 2015, which was given out in March of 2016, Heese affirmed
that he received a bonus for 2015.  The Court continued, “just for simplicity
sake [we’re] talking about the year 2015 no matter when you get it; right?” 
Heese agreed.  The Court then got to the key question, “So what was your bonus
for 2015?”  Id .   Heese acted uncertain about what seemed to be a
straightforward matter, asking, “[t]he bonus amount?”  The Court affirmed that
was the question.  Continuing to act flummoxed, Heese then asked, “Before or
after tax?”  Id .    

The
Court tried to simplify what it believed to be an uncomplicated inquiry,
continuing, “You get a check; right?”  Heese admitted he receives the bonus via
a check, then disclosed that it was $21,000.00.  The Court then asked what
Heese’s bonus was for the prior year and Heese answered “[i]t was 27 [thousand
dollars.]”  The Court replied, “So about $6,000 less for 2015; correct?” and
then reminded Heese, “[y]ou have to answer.”  Heese then responded, “[y]es
sir.”  Tr. 567.  That is, to express it succinctly, in the year of the anonymous
call to MSHA with validated safety complaints, Heese was impacted adversely by
a reduced bonus.  Further, Estella’s attorney asked Heese if civil penalties
affected profitability and whether the time spent on those matters would affect
productivity, as each of those categories are listed on the bonus components. 
Heese admitted they did affect profitability and productivity.  Tr. 569-70. 

In
terms of his involvement with the vital behaviors program, Heese stated he was
not a “key author” of it.  Rather, an individual from Denver started the
program.  Asked if he was heavily involved in tailoring it to the Phoenix mine,
Heese again engaged in semantics, disavowing that he tailored it , but
rather describing his role as supporting it to a great degree . 
Tr. 563.  However, he agreed that the vital behaviors that were identified came
from teams within the Phoenix site.  Id .  Heese also conceded that the
vital behaviors were not limited to work, as the program states those behaviors
are “[v]ital at work, vital at home, vital for life.”  Tr. 564.  Asked if that
meant such behaviors extend outside of work, Heese responded, “Yes, yes.”  Id . 
Next, still reading from the program, Heese stated that it provides, “When I
see something good or bad, I will say something.  I will communicate open and
honestly and voice my concern.”  Id .  Despite that language, Heese
remained firm that he was not obligated to say anything upon his observations
of the beer incident at the Midway Market.  Tr. 565.  This view, expressed by
Heese as the safety manager at Newmont’s Phoenix mine, under the circumstances
about which he was very attentive, and contrary to his own statement about the
vital behaviors, forms yet another reason for the Court’s conclusion that
Newmont discriminated against Estella.

Testimony of
Steve Blaskovich

Steve
Blaskovich, project manager at the Phoenix mine, also testified for the
Respondent.  Tr. 571.  When he was the process management superintendent at the
Phoenix mine, he was responsible for operating the copper leach facility at
that site.  Tr. 573.  At the relevant time, four persons reported to him: Mike
Peasnall, with the C crew, Marco Diaz, with the B crew, Cory Mills, with the A
crew, and Bob Wells with the D crew.  Tr. 577.  Blaskovich knew Estella, who
was the relief supervisor when Wells was off.  He believed he had a good
working relationship with Estella.  Tr. 578.  He stated that during the time
the two worked together at the copper leach facility, Estella would bring up
safety issues, although he could not recall the specifics of the matters
Estella raised to him.  Tr. 579.  Blaskovich stated that no one ever told him
about B crew employees accessing the stripping machine without locking it out. 
Id .  As for the issue of anyone ever telling him about inadequate task
training, he answered, “[n]o, I don’t recall anybody coming to me with that.” 
Tr. 580.  In May 2015, he was told about wires on the fire alarm being cut,
explaining,

I
think I was off for a week and when I came back I had heard that there was some
malfunctions in the fire control system and the alarm was going off on a
continuous basis and the operators weren't able to turn it off by just hitting
the acknowledge button and over a course of time they ended up disconnecting
wires on the horn on the control cabinet to disengage the alarm, the audio
alarm.

Tr. 580. 

This
did not make the fire system inoperative, as a digital display still
functioned, but the horn would no longer buzz.  Tr. 580.  The contractor who
installed the system had to order parts to repair it and it disengaged the
alarm pending receipt of the needed parts.  Tr. 581-82. 

Blaskovich
did recall that there was an MSHA hazard complaint inspection on June 3rd.  He
added that the contractor’s visit to repair alarm was before the MSHA visit. 
Tr. 582.  Blaskovich learned of the MSHA visit while it was in progress and he
went over to copper leach facility where the inspector and Heese were in the
control room, along with Javier Esquibel, who was showing them video of the B
crew entering the stripping machine without locking it out.  Tr. 583.  While
Blaskovich was in the control room most of the time that Esquibel was there, he
wasn’t there the whole time, stating, “[t]he only time I wouldn't have been in
there is when Dayne [Heese] brought him over prior to me coming into the
control room when I was not in the facility.”  Tr. 584-585.  However,
Blaskovich maintained that he was in the control room for the entire time
Esquibel was there.  Id .  Asked if he heard “Mr. Stull ask Mr. Esquibel
who had made the hazard complaint,” Blaskovich answered, “[n]o, I did not.” 
Additionally, Blaskovich was asked while inspector Stull was in his presence,
did the inspector inquire who had made the complaint, responding, “No, he did not.” 
Tr.  586. 

In
terms of the four crews getting along with one another, Blaskovich stated that
the A and D crews got along well, but the B and C crews did not.  Tr. 587.  The
Court considered much of Blaskovich’s testimony to be tangential to the issues
to be decided in this matter.  Counsel for the Respondent offered this
testimony “to establish on the record that there were personality conflicts
between the B and C crew, none of which had anything to do with Mr. Estella.”  Tr.

590.  Estella’s attorney, sharing the Court’s view that the information was not
central to the case, stipulated to the testimony about the lack of inter-crew
harmony.  Id . 

After
the first day of the hazard complaint inspection, MSHA inspector Stull
requested a safety meeting with all four of the crews.  Tr. 592.  Blaskovich
and Cole were present at that meeting.  Blaskovich claimed that Esquibel
brought up an issue concerning pilfered muffins and the safety issues too.  Tr.

593.  The Court will not address the missing muffin caper further. 

Turning
to June 17, 2015, Blaskovich stated that he learned of the market incident
through Mitchell and that Heese reported, “two of our employees were in the
grocery store in Battle Mountain that morning and he was also in the store at
the checkout stand and he reported that [Estella] and Marcos Soto were in front
of him at the checkout and that [Soto] was purchasing beer that morning.”  Tr.

596.  Though obvious, the Court notes that all of this is secondhand, a
re-telling of Heese’s account.

Blaskovich
then related his involvement with the interview process related to the beer
incident, stating that they (i.e. he, Wells, and Mitchell) spoke individually
with the three employees involved, beginning first, apparently, with Watson, the
car driver.  Tr. 597.  Watson stated he was not aware of the beer.  Tr. 598. 
Soto was interviewed next and he admitted that he purchased the beer and that
it was in the car in the parking lot.  Estella was then questioned.  Estella
told them “he knew nothing about alcohol being in the car.”  Tr. 599. 
Blaskovich then stated that, following drug and alcohol testing and the trip to
Watson’s car, where the beer was observed in the trunk, they were all
re-interviewed.  Watson told them on this second round of questioning what he
told them on the first round, but adding a new piece of information, that he
“didn't know there was beer in the car until [Soto] told [him about it] in the
control room after the first interview.”  Tr. 600. 

The
Court finds that Watson’s version was quite credible.  The three employees were
effectively under complete control by Newmont at that point, with no time to
hatch a collaborative lie.  Thus, it is found that Watson did not know of the
beer until Soto informed him about it after the first round of questioning.

For
Soto, on the second interview, his story remained the same.  For Estella,
however, Blaskovich stated that the Complainant had a different story during
his second round, asserting,

[Estella]
admitted right away that he knew that beer was purchased that morning and that
he saw [Soto] coming out of the store [22]
with a bag and he knew that there was beer in the bag. . . [and that] the
reason he didn't say anything during the first interview was that he -- he's
old school and he wasn't going to narc on anyone.

Tr. 600-01.  

Curiously,
while Heese disclaimed any responsibility to speak up when he observed the beer
purchase at the market, in contrast, Blaskovich believed that Estella did have
a responsibility to speak up , stating,

We
did talk to [Estella] a bit more about it while he was still present with us
and we discussed how, you know, he would – he was the person that could have
changed the outcome of this whole event that morning [23] and
with the position that he is in as a lead control room operator and leading the
crews and that that we would have expected him to speak up and not be in
a position to allow anybody to bring alcohol onto the property.

Tr. 601
(emphasis added).

Yet
this duty did not extend to Heese.  Blaskovich larded his testimony on this
point and the double standard he employed, “we just expressed that we were
disappointed in what had taken place and that he didn't take the leadership
in his role with his experience and speak up .”  Tr. 601 (emphasis added.) 

The three miners
were then suspended, with Blaskovich driving Watson to his car and then taking
Estella and Soto to their homes.  According to Blaskovich, when driving them,
the three “were still jovial with each other,” which behavior seems quite unlikely,
given the events.  Tr. 602.  Conflicting with his claim that there was
joviality, Blaskovich also stated that in his presence, Estella and Soto “did
discuss on the way back [ ] that they felt that at the store when [Heese] saw
them where [Soto] was purchasing beer that he should have said something to
them and stopped them from doing that, and they talked back and forth for a
while about that.”  Tr. 602-03.  In the Court’s view, this account doesn’t add
up, as Blaskovich’s recounting would mean that the two recognized they were
about to violate the company policy but wanted Heese to bring it up to them and
only then would they elect to leave the beer at Soto’s house. 

Following
that, Blaskovich returned to the mine, reviewed matters with Mitchell and it
was expressed that they wanted “to be able to treat this [discipline] in a
consistent manner that has taken place over a period of time.”  Tr. 604.  Blaskovich
recounted that after Mitchell consulted with others within Newmont about the
issue, it was decided that Soto and Watson would be terminated.  Regarding
Estella, Blaskovich stated that “his role was that he wasn't honest during the
investigation and that because of him not being honest it was recommended that
he would also be terminated for that.”  Tr. 605.

Blaskovich
was then asked about the employee handbook, Ex. R 11.  He agreed that Estella
violated section 2.1.3 of that handbook by failing to provide honest and
complete information during an investigation.  Tr. 606.  He stated Estella was
informed of the basis for his dismissal when he and Mitchell met with him in
Battle Mountain.  According to Blaskovich, Estella did not have any specific
questions about that, but did inquire about the appeals process.  Tr. 607. 
That appeals process began with the process manager, Coles, and after that a
further appeal would be with Cecile Thaxter. 

Counsel
for the Respondent acknowledged that Estella had no prior disciplinary action
of any sort, and therefore inquired why Newmont decided to terminate him. 
Blaskovich answered, “in our disciplinary process we have a step by step
process, but you also have flexibility depending upon the situation where you
can bypass steps up and to termination depending upon the situation that has
taken place.”  Tr. 608.  In short, in the Court’s view, this was a
non-responsive explanation.  Blaskovich stated that, in his experience, a
termination for failing to be honest occurred once before, in February 2015,
where an employee denied damaging some property while using a forklift.  A
video of the event showed otherwise and the employee was terminated.  Tr. 609. 
The Court notes that property damage was involved in that incident and the mine
had video to show that the employee was lying. 

On
cross-examination, Blaskovich was asked if Estella ever gave him any reason to
doubt his honesty, and he responded, “Not during the time that he worked at the
copper leach,” and acknowledged that Estella “was good about all aspects of the
jobs that he did.”  Tr. 621-22.  

On
the day of Inspector Stull’s visit to the mine following the hazard complaint,
Blaskovich stated that Heese, Jose Leon, and Esquibel were in the control room
when he arrived there.  At that time Esquibel was showing the inspector video
associated with the B crew.  Interestingly, he acknowledged that the video
system was changed so that operators could no longer go back and view what
occurred a couple of months earlier.  Tr. 625.  That system feature was changed
after Stull’s inspection.  Id .  The explanation Blaskovich offered for
this change was, “it was management's right at that point to have the
system set up so that they could review them only.  We didn't feel there was a
need for the operators to be able to go back and look at things that had transpired.” 
Tr. 626 (emphasis added).  He admitted that the footage displayed safety
violations.  Id .  The Court would comment that this change can hardly be
characterized as a change in the interest of safety.  Rather, it was to ensure
that the embarrassing footage would not be available for future MSHA
inspections. 

Interestingly,
Blaskovich stated that they did follow-up with the individuals committing the
safety violations, asserting that all of them were disciplined.  Tr. 627.  That
discipline, he stated, was that they were “written up,” though he was not sure
if the write-ups were first or second level warnings.  Id .  On the
recurring question, this time posed to Blaskovich, of whether he heard Javier
[Esquivel] tell Stull who called in the violation, Blaskovich answered, “I never
did hear that.”  Tr. 631.  He stated he did not hear Esquibel tell the
inspector that he and another person on his crew and Estella called in the
violation.  Tr. 631-32.  Blaskovich further stated that the inspector was asking
[Heese] questions during that time.  Tr. 632.  He also admitted that he was not
present the whole time that inspector Stull was present.  Tr. 634. 

On
the subject of fireable offenses, Blaskovich did not believe there is a list of
fireable offenses.  Tr. 635.  He denied that Mitchell made any remark to the
effect of “which one do we want to terminate first.”  Tr. 636.  According to
Blaskovich, when the first of the three, Watson, was interviewed, and he denied
awareness of the alcohol, Blaskovich made no credibility determination about
Watson’s truthfulness.  Instead they “just listened.”  Tr. 637.  The Court
notes that this claim is inconsistent with human nature.  Anyone in that
circumstance could not help but make a credibility assessment of the claims
made by Watson and the other two employees.  Instead, he maintained, Mitchell
was simply documenting things.  In contrast, when asked if he made an
assessment of Soto’s answers, Blaskovich contradicted his earlier statement,
stating that Soto “appeared to be honest.”  Tr. 637. 

On
the important question of whether Soto asserted that Watson and Estella had
nothing to do with the beer, Blaskovich’s memory failed him, stating, “You
know, I can't recall that, but he – I can't recall if he said that specifically.” 
Tr. 638.  Though he thought that Mitchell might have asked Soto about that
subject, he could not remember what Soto said.  That he could not remember such
an important point is surprising, and informative, to the Court’s assessment of
Blaskovich’s credibility. 

When
Blaskovich was asked about the interview of the third employee, Complainant
Estella, and his assessment of Estella’s credibility, he fell back to his
answer for Watson, asserting they “just listened to what [Estella] had to
say.”  Tr. 638.  During the first round of questioning, Blaskovich acknowledged
that Estella did not say that he waited for Soto at the checkout stand.  Tr.

639.  According to Blaskovich, when the three employees were all assembled at
the scene of the beer violation, at Watson’s car, none of the three said
anything.  Tr. 640-41.  After the trip to the beer scene at Watson’s car, the
three were taken to the main facility for the second round of questioning.  Tr.
641. 

During
the second round of interrogation, according to Blaskovich, Watson continued to
maintain that he was unaware of the beer but he added an important factual
development, which occurred between the first and second round of questioning –
Soto told him there was beer in the car, “[Watson] said that he wasn't aware
that there was beer in the car in the morning when they arrived on the property
and it wasn't until after the first set of interviews that Marcos [Soto]
told him that there was beer in the car .”  Tr. 642.  (emphasis added). 
Thus, Blaskovich, in effect, agreed with Watson’s statement, because upon being
asked when Watson said he spoke to Soto, Blaskovich answered, “ It
would have been after the two of them were interviewed.”  Tr.

642.  (emphasis added).  As Blaskovich and Mitchell did not employ a method to
keep the three separated from one another between questioning sessions,
Blaskovich was “sure that they spoke in the control room.”  Tr. 642-43. 
Further, Blaskovich stated that Watson “appeared to be telling the truth” that
he only learned about the beer after the first round of questioning,
when Soto then informed him about it.  Tr.  644.

On
the important question of whether Soto asserted that the other two, Estella and
Watson had nothing to do with the beer, Blaskovich’s memory let him down again,
as he asserted “ I don't recall him saying that during the interview.” 
Tr. 645.  In both the first and second round of questioning, Soto stated that
he simply forgot about the beer being in the trunk.  Tr. 645. 

Curiously,
despite Watson’s statement about when he learned of the beer, when it came time
for Estella’s second round of questioning, Blaskovich asserted that Estella
reversed course, and then admitted that he “was aware that beer was purchased
and it was in the car.”  Tr. 646.  In Estella’s case, Blaskovich maintained,
Estella described that “he saw Marcos [Soto] coming out of the store with a
plastic bag and he could see the six pack of beer in the bag.”  Tr. 647.  Thus,
Blaskovich denied that Estella informed him that he learned about the beer
while sitting with Soto in the control room.  Id .  As noted earlier,
Blaskovich’s recounting conflicts with management member Wells, who was present
during both rounds of questioning for Estella.  Wells testified that Estella
made it clear that he learned of the beer after Soto so informed him
about it, which disclosure occurred following the first round of questioning.  Tr.
203-04, 213. 

Blaskovich
acknowledged that the vital behaviors program applies to management too.  Tr.

653.  His answer about Heese’s obligation to speak rested upon the dubious
claim, in line with Heese’s assertion, that “[y]ou know, at that point does
Dayne [Heese] even know whether they are going to work or they are going
home?”  Tr. 653.  That response suggests that their answers were coordinated. 
Further, under the circumstances, the claim is simply not credible, whether
voiced by Heese or Blaskovich, as Blaskovich maintained that he continued his
discussion with Mitchell after he returned from driving Estella and Soto home. 
Mitchell and Blaskovich agreed between themselves that it was not Heese’s
responsibility to speak up – that responsibility rested solely with the
employees.  Tr. 654.  For Watson, his blame was having alcohol in his personal
vehicle, a determination made without regard to his knowledge of its presence. 
Termination was imposed for Watson, despite the apparent acknowledgement that
the unwitting driver did not even enter the market that day.  To this point,
displaying Newmont’s pretext for discharging the miners, Complainant’s counsel observed
that by Blaskovich’s admissions, the mine’s contract bus drivers who drive many
employees to the mine do not have the same obligation to ensure that
there is no alcohol in the miners’ lunch pails.  Tr. 655.     

Blaskovich,
when asked again about lying and whether it is listed as a fireable offense in
Newmont’s code of conduct, admitted “[i]t doesn’t say so specifically, no.” 
Tr. 659.  Further, in the mine’s disciplinary process, while admitting that it
is not stated that discipline steps can be skipped, Blaskovich responded, “Yes,
it's interpreted that way, yes.”  Tr. 660.  Blaskovich defended the decision to
forego a recorded verbal warning, a written warning and a final warning, this
time asserting there were two lies on Estella’s part; not being honest during
the mine’s investigation and not being honest about bringing alcohol onto the
property.  As Newmont conceded that the beer was Soto’s alone, it had to find
another reason to discipline Estella for the improper act of another. 
Therefore, it latched onto the dishonesty claim.  While completely excusing Minister
Heese, who admitted seeing the beer, and being fixated on the conduct he
allegedly observed at the Midway Market, the standard applied for Estella was
Newmont’s “looking for him to also provide leadership away, and if he was to
see something -- somebody, for instance in this case here, bringing alcohol
onto the property we would have expected [Estella] to have stopped that even
before it got to the car.”  Tr. 664.  The Court then highlighted Blaskovich’s
varied approach, asking, “But not Mr. Heese; correct?”  Blaskovich responded
succinctly, “Correct.”  Tr. 664. 

Upon
questioning by the Court, Blaskovich agreed that the four citations issued by
MSHA occurred during June 2nd through June 3rd, 2015 and that “all four of
those citations related to violations found within the copper leach SXEW part
of the operation.”  Tr. 668.  As counsel for the Respondent admitted, the
citations in Exhibits P 1 through P3 were paid, and the citation admitted as
Exhibit P4 was settled.  Thus, the citations all arose from the area where the
three fired employees worked.  As the Court pointed out, and about which observation
Blaskovich agreed, the other crew employees, to the extent any of them received
any discipline, were only written up.  While such a write up becomes part of
their employment record, no one, on any of the crews, other than the alleged
beer violators, was suspended, nor lost any time at work, nor lost any pay. 
Tr. 669.  This is also instructive on the issue of Respondent’s pretext for
disciplining Watson and Estella. 

Testimony of
Rocky Mitchell

Rocky
Mitchell also testified for the Respondent.  Until just before the hearing,
Mitchell had been employed by Newmont as the Phoenix mine employee relations
specialist.  Tr. 674.  Mitchell became aware of MSHA’s hazard complaint
inspection of June 2 and 3rd, 2015 on the day the inspector first arrived. 
Heese advised him of MSHA’s presence.  Tr. 676.  It was Heese who informed Mitchell
of the June 17, 2015 alcohol investigation, stating,

Heese
shared that he was in Battle Mountain prior to the start of shift at the Midway
Market, had come across some employees of ours.  He mentioned that he saw Gene
Estella and Marcos Soto in the Midway Market there standing at the checkout
counter.  He told me that he had greeted them, at least one had responded.  He
said Gene had walked out before Marcos, turned around and said something about
don't forget the ice.  He said when he walked out of the building that both of
them were standing at the rear of the vehicle.  He said he went to his pickup,
didn't think too much of it, to report to site.  He saw that their vehicle went
the opposite direction of the property and that morning he was conducting
random drug and alcohol tests.

Tr.
677-78. 

At
odds with Heese’s version, Mitchell stated that Heese told him that the white
four door sedan was Shane Watson’s car.  Tr. 678.

Mitchell
took notes during the two interrogations of the three employees, describing
them as his “notes of the majority of my investigation.”  Tr.  680
(emphasis added), R’s Ex. 29, 30, 31 and 32.  It was not just Estella who
appealed; Watson appealed too.  Tr. 683.  Turning to Newmont’s code of conduct,
Mitchell described it as “set[ting] expectations of behaviors for all
Newmont employees.”  Tr. 685, Ex. R 14 and Ex. R 15, with the latter showing
Estella’s signature on a sign-in sheet for the code of conduct training.

Further
demonstrating Newmont’s inexplicable overreaction in terminating all three
employees, all of them passed their drug and alcohol testing.  At worst, there
was a simple mistake, yet three were fired.  Essentially, Mitchell’s testimony
echoed that of Blaskovich, but fortunately credibility determinations are not
made by counting up the number of people who tell essentially the same story. 

Mitchell
did concede that Soto continued to deny at his second interrogation that
Estella was aware of the beer purchase.  Tr. 693.  However, when it came to the
recounting of Estella’s second round of questioning, Mitchell asserted that
Estella’s story “completely changed from the original meeting,” admitting, in
essence that he knew all about the beer being in the trunk of the car.  Tr. 694. 
Of course, Mitchell did not feel that Heese had any duty or responsibility to
say something at the market,

[Estella
is] a senior level experienced miner.  He fills in as a relief foreman.  There
are expectations of our employees to do the right thing.  Our code of conduct
talks about our values and acting with integrity and doing the right thing. 
That's part of all of our responsibility as a Newmont employee is to look out
for what's best for the company and each other. 

Tr. 695. 

It does not wash
with this Court that Mitchell perceived a “Heese exemption” under the code of conduct. 
His quoted remark, above, makes no such distinction either. 

In
trying to justify the termination of Estella, Mitchell cited the Ortiz employee
example and added a Mr. Johnson as another example of an employee terminated
for lying.  In the latter’s case, that employee was injured while performing
work.  Though he first asserted that he followed a lockout procedure , [24]
he then admitted he did not follow the procedure.  That individual provided
Newmont with a handwritten confession about the incident.  Tr. 708-09.  

As
mentioned, Newmont’s appeal process has a second and third step.  In this
instance, Cole, the process manager conducted the second appeal step, while Cecile
Thaxter did the third, and final, step.  Tr. 712.  Mitchell, who was present
during the second step appeal, recounted that Estella reviewed his long tenure
with the company, having a good record, and “talked about his accolades,” but
she responded that he was terminated for being dishonest.  Tr. 714.  Mitchell
noted that Estella pointed out that his drug/alcohol tests were negative, that
nothing was found on him, that the guilty party, Soto, confessed and therefore
he felt that termination was unfair.  Id .  When before Cole, he repeated
that he only learned of the presence of the beer during the interval between
the first round of interrogation and the second round, when he was in the
control room with Soto.  Tr. 714-15.  None of those reasonable mitigating and
exculpatory points made any headway in Estella’s attempt to regain employment. 
This does not add up.  Rather, it points to the Court’s conclusion that
Newmont’s reason for terminating Estella was purely pretextual.

In a
leading question of an extreme variety, counsel for Respondent posed to
Mitchell,

I
want to make sure I understand this and this is clear on the record.  Did
[Estella] tell Mr. Cole that he had heard in the car on the way over to work  .
. . Mr. Soto tell Mr. Watson that he needed to stop off and drop off his cooler
of beer?

Tr. 715. 

Unsurprisingly,
Mitchell answered “Yes,” to the question.  Id .  The Court comments that
both the leading question and the predictable answer are both clear on the
record, but that does not mean that the Court must adopt the loaded question
and robotic answer — and it does not.

Mitchell
was also present for Watson’s second step appeal.  Watson’s defense was
unchanged; he stated he was simply unaware of the presence of the beer.  The
third step deserves little discussion; the appeal outcome was the same.  One
twist was that Mitchell asserted that Estella expressed disagreement with the
alcohol on site prohibition.  Ms. Thaxter was reportedly taken aback by his
alleged claim.  To her, according to Mitchell’s telling, this meant that
Estella wasn’t supportive of the mine’s drug and alcohol free environment.  Tr.

719.  Mitchell maintained that Estella was never told that his firing was due
to off-duty behavior which adversely affected Newmont.  Tr.  720.

On
cross-examination, Mitchell acknowledged working at the Phoenix mine until just
before the April 28, 2106 hearing, having then started work with a new
employer.  Tr. 722.  When MSHA came to the mine pursuant to the hazard
complaints it received, and citations were issued as a result of that
investigation, at the close out meeting, Cole, Thaxter and Heese were all
present.  Tr. 725.  Unbelievably, Mitchell maintained that among the management
people there was no discussion or speculation as to who might have called
MSHA.  Tr.726, 727.  When the Court followed up, posing to Mitchell, “[n]o one
was curious, it was just the farthest thing from your mind?”  Mitchell
responded, “That’s right.”  Tr. 727.  However, Mitchell then did allow that he
assumed the complaint must have come from someone in the department where Steve
Blaskovich is responsible.  Tr. 728.  Again, the Court inquired about the
subject, with Mitchell stating that he didn’t share that assumption of the
source of the complaint with anyone.   Id .  In the Court’s view,
Mitchell’s representation, being at odds with human nature, was not credible.

In
terms of Mitchell’s recounting of Heese’s disclosure to him about the Midway
market event, Mitchell stated that Heese said he “wasn’t sure.  He didn’t know
that they were going to be reporting to work [that morning].”  Tr. 730.  He
also stated that Heese identified Watson as the car driver.  Tr. 731.  They
went to the car just to confirm that it was Watson’s car.  Id . 

As
Mitchell stated,

So
[Heese] identified [Watson] there at the Midway Market.  So he knew whose car
that was.  So we went out to the parking lot to see if that same car was indeed
at our property, which it was, and so we suspected that was [Watson’s] car. 
That's when we went to security to notify them of what is taking place and what
the concerns were.

Tr. 731. 

Mitchell
did admit that Estella denied being in the checkout line with Heese, that he
had denied speaking with Heese, that he had no knowledge of the beer.   Tr. 734.  As to
whether Mitchell found Estella credible, his answer was an indirect
affirmation, stating, “Did I find Gene [Estella] credible?  Gave him the
benefit of the doubt, absolutely.”  Tr. 735.  Mitchell reached the same
conclusion regarding Soto, finding him credible.  When asked, “Did you find
[Soto] credible?” he responded, “Yeah, he admitted to having alcohol on-site,
absolutely.  Again we gave him the benefit of the doubt.”  Tr. 738.  Mitchell’s
memory failed him when then asked, “did anyone say thank you [to Soto] for
being honest?” responding, “I don't remember.”  Id .  Yet, at the end of
the day, Mitchell, contradicting his credibility assessment, opted for
Estella’s discharge.  Tr. 735. 

The
Court observes that even Newmont’s version presents a very odd outcome, to say
the least.  Of the three employees, one, Soto, admits to the whole thing.  As
Mitchell himself stated, “So Marcos acknowledged responsibility for purchasing
the beer.  It was his beer.  It was in the car and he claimed that both Shane
and Gene had no knowledge of the alcohol.”  Tr. 737.  Consistent with Soto’s
statement to his examiners at the mine, the other two, Estella and Watson
denied any knowledge of the beer.  The stories of all three mesh.  Further,
there was no time to collaborate or rehearse a unified story prior to the first
round of interrogations.  Yet, all three were fired.  This can only be
rationally explained by the close-in-time events of MSHA’s arrival and issuance
of citations pursuant to the anonymous hazard complaint call.  Further, given
the area of the citations, it would not take much insight to figure out the
source of the calls, at least at to the crew that made the call.  As noted
below, overt evidence of discrimination is rare.

Mitchell
was asked about the second round of interrogation for Soto and he confirmed
that Soto gave the same version of the events and repeated that he was the
culpable party.  When Mitchell was asked, this time relating to the questioning
of Soto, if he was being truthful, he responded, “I thought he was being
truthful, yes.”  Tr. 745. 

According
to Mitchell, during Estella’s second round of questioning he admitted to it
all; that he knew about the beer, etc.  Mitchell denied that Estella told them
he only learned of the beer after the first round of interrogation.  Tr. 746. 
Obviously, if Estella really told such a revised version, it would mean
that Soto had been lying during his first and second round of questioning, yet
Mitchell did not assert that he revised his assessment of Soto’s
testimony. 

Inconsistently,
and in the Court’s view, lacking credibility, Mitchell reiterated that if
Estella had told the truth the first time he was questioned, instead of
the second time, which was shortly after the first interrogation, he would not
have been fired.  Tr. 758.  Mitchell stated that favorable outcome, not being
fired, would have occurred even though the underlying violation involved the
drug and alcohol policy.  Id .  The Court would note that this too, does
not add up.  No one asserted that Watson was untruthful, and not even Heese’s
testimony claimed that Watson was in the store, nor did Heese claim that Watson
observed the beer, yet Watson was fired too, for violation of the beer and
alcohol policy.  If Mitchell’s testimony were truthful then at least Watson
would not have been terminated.  That didn’t happen. 

The
Court wishes to emphasize that this is not a case of the Court
substituting its judgment for that of Newmont as to the appropriate sanction to
be imposed.  Rather, it is a determination about Newmont’s real motive and the
lack of credibility of its witnesses, as their collective story simply does not
add up. 

According
to Mitchell, the order of the initial interrogation was Estella, then Soto, and
last, Watson.  Tr. 777.  Also, Mitchell stated that there was a time gap
between each individual’s questioning.  Illustrating this, Mitchell stated that
after questioning Estella, there was a search of his locker and then he was
given a drug and alcohol test.  Only then was the second person, Soto,
interrogated.  Tr. 778.

The
Court inquired why it was that the mine decided to do another round of
interrogation, when they had all three miners’ statements.  Mitchell contended
that it “didn’t make sense that none of them knew.”  Tr. 781.  Of course, that
is not true, as Soto knew and confessed immediately to the transgression. 
Simply put, Mitchell and the others just didn’t believe them, as he put it,
“the other two had to have known.”  Tr. 781.  Thus, it is clear that the minds
of the inquisitors had been made up.  Questioning was unnecessary because the
determination of guilt had already been reached.  Concluding that they “had to
have known,” there was no point to the next round, except for the hope of one
of them tripping up.  

Because
the Court believed that the management stories meshed too well, it asked
Mitchell about his contacts with Heese.  Mitchell admitted that between June
2015 and prior to the April 28th hearing, he had multiple conversations with
Heese.  Tr. 783.  The same is true with regard to Cole and Blaskovich; Mitchell
had multiple conversations with them prior to testifying on April 28th.  Tr.

784.  Mitchell then admitted that his conversations with those individuals
included what his testimony would be, “Yes, I had to tell them what my
findings, were, yes.”  Id .  However, Mitchell stated he never had such
conversations with Heese.  Id .   

Testimony of
John Cole

John
Cole testified for the Respondent. [25]  
Since February of 2015 he has been the process manager at the Phoenix Mine. 
Tr. 789.  In that role, he is “responsible for the operation and maintenance of
the process areas at the Phoenix Mine.”  Tr. 790.  His job encompasses the
copper leach, the concentrator, crushing, and the laboratories both at Phoenix
and at Lone Tree, which is another Newmont Mine.  Id.  Cole was asked
about his role in the appeals process at the Phoenix mine.  As the area
manager, he is tasked with the second level of appeal, with the third appeal
level carried out by the general manager.  Tr. 792.  Cole had no prior
experience with this process; this was Cole’s first appeal meeting for Newmont. 
Respondent’s Ex. 35 reflects the notes he took at the appeal meeting, which
were typed up shortly thereafter.  Cole stated that during the appeal meeting,
he showed his notes to Estella.  As for the actual decision making, Cole stated
that he was consulted via a conference call.  While he could not recall talking
about any one of the three employees in particular, all participating in the
decision reached the conclusion that termination was the appropriate action. 
Tr. 795.

The
Court asked Cole about Estella’s inquiry at the appeal meeting, when he asked
for the reason he was being terminated.  The Court continued that it was its “understanding
is that your answer is that he was not --  [Mitchell] nor you did not at that
point tell him oh, you're being terminated because we believe you lied, that
did not happen; is that right?”  Tr.799.  Cole responded, “That's correct.  I
have no recollection of saying your termination was for this reason.  It was
talking about some paperwork.”  Id.  The Court asked for further
confirmation on this point, “So the answer -- he was not given an answer
then?”  Cole replied, “Correct.  I did not state the reason for termination.  I
do not recall Rocky stating a reason for termination at that meeting.”  The
Court, “Neither of you?”  Cole again confirmed, “Correct, neither.”  Id .

However,
before the appeal meeting began, Cole knew that Estella was terminated for
lying.  Tr. 800.  Estella did state at that meeting that he had not been given
the reason for his termination, and Mitchell responded that it would be mailed
to him.  In any event, Cole stated that he wanted to hear Estella’s side of the
story and that this occurred.  Tr. 801.  Estella also sought reinstatement and
gave his grounds for that relief.  According to Cole, Estella never brought up
making a complaint to MSHA as one of those grounds.  Cole’s approach was the
same for Watson, to hear his recounting of the events. [26]   Tr.
802. 

Cole’s
standard for reversing the determination to terminate was “new information,”
for which there was none, and the absence of a “compelling reason to
overturn.”  Tr. 804.  Apart from the “compelling reason” standard Cole applied,
the Court did not think much of the “appeal process,” as it was clear that it
was a formality, the outcome preordained.  Cole admitted that in all his time
with Newmont he has never seen anyone successfully appeal a termination.  Tr.

823. That said, the questionable process employed by Newmont is not at all the
     basis for the Court’s decision finding discrimination.  Further, it doesn’t
     matter whether Cole or, for that matter, whether Mitchell or Blaskovich,
     believed Estella’s claim that he didn’t know of the beer, as that determination
     is reserved for the Court.  

Along
with Thaxter, Heese and the mine manager, Cole did participate in the June 3rd
close-out meeting with MSHA following the hazard complaint.  Tr. 808.  He
admitted that the nature of the close-out conference reasonably led him to
conclude that the hazard complaints came from the copper leach facility.  Tr.

809.  Following the MSHA investigation and the issuance of citations, Cole
admitted there were “additional management, upper management meetings regarding
the hazard complaints” and that Heese, Thaxter, Mitchell and others attended
them.  Tr. 812.  Despite that, Cole maintained that there was never a time
“where there was discussion about who called in the complaint,” and that there
was no conjecture about it either.  Tr. 813.  As noted earlier, this claim is not
credible.  Tr. 816.

Finally,
Cole’s meeting notes demonstrate that, despite Estella’s presentation at his
appeal before Cole of a wealth of undisputed facts – that he is a long
term employee, with a good safety record, and good job performance and that the
beer found in the car was not his, that the car the beer was in was not his
car, that he had a clear drug and alcohol test the morning of the incident,
that his locker was searched and no drugs or alcohol were found, and that
someone else, Soto, confessed to buying the beer and has not appealed his
termination, none of that mattered.  Ex. R 35.  The same meeting notes reflect
Estella’s version of the events, including his lack of knowledge that Soto had
bought beer that morning.  The Court notes again that, without an opportunity
for forethought or collaboration, Estella presented that version during his
first interrogation.  All of that was for naught; Estella and Watson were
fired.

Testimony of
Cecile Thaxter

The
testimony resumed on July 6, 2016 with Respondent’s witness Cecile Thaxter,
general manager at the Phoenix mine.  Thaxter has held that position since
December 2014.  Tr. 837.  Thaxter took the job at Newmont because she “had
always wanted to be responsible for a business, be responsible for a profit and
loss statement.”  Tr. 838.  Although the Court, again for the sake of
completeness, notes Thaxter’s testimony, it must be said that she is not a key witness
in this case, at least in terms of the issues the Court must resolve.  Her
testimony, relating primarily to her role as the official presiding in
Newmont’s third appeal, is of no moment to the issues before the Court.

Ironically,
Thaxter did speak about the mine’s vital behaviors program, with the first such
behavior being to “speak up.  So, we encourage folks to speak up.”  Tr. 840. 
As noted by the Court, Newmont applies this behavior unevenly and selectively,
under the “Heese exemption” its witnesses invoked.

Thaxter
informed that, in the wake of the citations that were issued after the hazard
complaint and MSHA’s requirement that the violations had to be posted, someone
“put red dots beside three names and the three persons on that crew felt that
they were being singled out, they were being targeted so they complained about
it.”  Tr. 847.  The dots were next to the names Leon, Esquibel and White, each
a member of the C crew.  Tr. 848.  The C crew worked opposite the B crew, which
was a crew associated with the citations issued by the inspector during his
complaint investigation.  Tr. 849.  However, Thaxter did not look into who put
the dots beside the names, unlike the muffin caper, a matter apparently of a
different order. [27]  
She did meet with each of the crews after the “dot” incident.  Also, following
the hazard complaint, supervisor Cory Mills complained that someone had written
on his car, using a finger, “you’re next.”  Tr. 847.  Thaxter was also present
at the close-out meeting with the MSHA inspector, following the complaint
investigation.  Tr. 885.

As
alluded to above, it is fair to say that, in the Court’s estimation, Thaxter’s testimony
did not shed any additional useful information regarding the central issues in
this case.  Rather, in large measure, it was a regurgitation of things others
had told her, such as Mitchell’s recounting of the employees’ interviews
regarding the six bottles of beer.  Tr.858-59. Thaxter contended that Estella,
during his appeal before her, asserted that the alcohol policy was “stupid” and
that it did not make sense.  Tr. 864.

The
Court finds it highly unlikely that Estella would assert such a claim, given
that his goal was to be re-employed.  Assessing Estella’s intelligence, as the
Court did during his testimony, he certainly had enough wisdom to avoid
attacking Newmont’s alcohol policy when trying to become re-employed.  Further,
though this was brought out by Respondent’s counsel, when questioning Thaxter,
it must be recalled that Estella was discharged for allegedly being untruthful,
not for any alcohol violation.  Tr. 868.  After Thaxter stated that Estella
failed to take responsibility “for being there when the alcohol was being
bought, having knowledge of it, being  -- recognizing that we do have a
policy,” the Court observed at the hearing that “a given individual could deny
what was alleged about what transpired, but at the same time one could still,
seems to me, be opposed to a policy without that, therefore, translating into
some sort of indirect admission that that's what happened.” [28] Tr.
869.

Thaxter
learned of the alcohol investigation about midday on the date of the occurrence,
and that the D crew was involved.  Tr. 909.  She also knew that Mr. Estella was
involved and that Mitchell, Blaskovich and Wells were involved with the
investigation.  She also knew that Heese was the reporter of the incident.  Id . 
Accordingly, it is quite clear that Thaxter was informed of the incident from
the start.  As alluded to above, the Court commented that Thaxter’s role in
this matter was quite limited, as it was restricted to the appeals process. 
Though the Court concluded that Thaxter’s answers and demeanor demonstrated
that she was first and foremost a company person, her disposition had been
tainted even before the pro-forma appeal began, as she had already heard
Mitchell’s and Blaskovich’s view of the matter about Estella’s denying that he
knew of the alcohol.  That said, even in that limited role, based on her
testimony as a whole, Thaxter certainly cannot be viewed as any sort of an
independent mind in the appeals process.  Even with her predisposition, her
objectivity, or lack thereof, is not of concern, as the Court must make the
critical credibility determinations.  Apart from the Court’s conclusions about
Thaxter, her own admission about her involvement in such employee appeals is
instructive.  She was asked, “Have you ever reversed an appeals hearing at your
level,” she answered, “No.”  Tr. 924.               

Complainant’s
Rebuttal Evidence:

Testimony of Tana
Holland

Tana
Holland, girlfriend of Estella, was called as a rebuttal witness for the
Complainant.  Tr.  949.  Holland’s primary topic pertained to her involvement
in the letter sent to the unemployment office, the entire subject of which is a
side issue, and which has been discussed previously and resolved by the Court. 
As with witnesses Cole and Thaxter, the Court finds that, as a tangential
witness, Ms. Holland’s testimony was of minimal import to this case.  In any
event, Holland stated that in the spring of 2015 Estella voiced safety concerns
to her about the Phoenix mine.  Estella never told her that he had called MSHA
until the day he was sent home (i.e. suspended) from work.  Tr. 954.       

Holland
typed up Estella’s and Soto’s statements for unemployment benefits. 
Essentially, Holland claimed that between Estella’s and Soto’s confusing
statements to her and her trying to edit that information and make it
comprehensible for the typed version she was creating, errors were made.  Tr.
956-59.  Soto and Estella had handwritten notes.  She was typing from what they
had written for her.  Tr. 969.  Exhibit P 6 is Soto’s statement to
unemployment, as typed by Holland, while R 5 is Estella’s statement.  Tr. 957,

960.  Within the statement that Holland prepared is the sentence, “I admitted
to hearing Marcos [Soto] ask if we could stop by his house to drop off the
cooler with beer in it.”  Tr. 961, Exhibit R 5.  However, though typed, Holland
stated that was an error, “[b]ecause [Estella] never said anything about
knowing about the beer in the cooler.”  Tr. 962.  Holland typed both R 5 and P
6.  Tr. 966.

Rebuttal
Testimony of Gene Estella

Complainant
Estella was then recalled, for rebuttal purposes.  Asked about the third appeal
level, Estella stated that he brought a paper with him to that appeal as “the
only thing that [he] knew of why [he] was terminated was on that piece of
paper.”  Tr. 978.  At that meeting he asked Thaxter why he was being
terminated; he wanted a written copy of the reason for Newmont’s action.  That
paper, which Thaxter read, contained what unemployment was told as to the
reason for his termination.  The letter from unemployment stated that Estella
was terminated for “off the job behavior that adversely affected the company.” 
Tr. 981.  Estella denied that he ever raised a claim that he was discriminated
because of his Native American heritage, noting that no one even knew his
heritage.  Tr. 986. 

Mine Act Discrimination Claims

This
discrimination complaint was brought under section 105(c)(3) of the Mine Act,
alleging a violation of section 105(c)(1), which states, in relevant part:

No person shall discharge or
in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner [or] representative of miners . . . because such
miner [or] representative of miners . . . has filed or made a complaint under
or related to this chapter, including a complaint notifying the operator or the
operator's agent at the coal or other mine of an alleged danger or safety or
health violation in a coal or other mine.

30
U.S.C. § 815(c).

Where,
as in this case, the Secretary has decided not to bring case on behalf of the
miner, Section 105(c)(3) of the Mine Act provides that if the Secretary of
Labor determines that a violation of section 105(c)(1) has not occurred, “the
complainant shall have the right . . . to file an action in his own behalf
before the Commission, charging discrimination.”  30 U.S.C. § 815(c)(3). 

As
the Commission stated in Jaxun v. Asarco , “[t]he Mine Act, the
Administrative Procedure Act (‘APA’), and the Commission’s Procedural Rules
permit a Complainant to proceed with an action under section 105(c)(3) of the
Mine Act without representation.”  Jaxun v. Asarco, LLC , 20 FMSHRC 616,
620 (Aug. 2007).

The
legal framework for assessing discrimination claims brought under the Act is
well-established and clear.  A complainant may establish a prima facie case by
showing “(1) that he engaged in protected activity, and (2) that he thereafter
suffered adverse employment action that was motivated in any part by that
protected activity.”  Pendley v. FMSHRC , 601 F.3d 416, 423 (6th Cir.
2010).  The complainant bears the ultimate burden of proving these elements by
a preponderance of the evidence.  Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3rd
Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co. ,
3 FMSHRC 803 (Apr. 1981).

Protected
activity often takes the form of complaints made to the operator or its agent
of an “alleged danger or safety or health violation.  30 USC § 815(c)(1).  Often,
the Court will be called upon to consider indirect evidence of a discriminatory
motivation for the adverse action.  The Commission has stated that “[d]irect
evidence of motivation is rarely encountered; more typically, the only
available evidence is indirect.”  Sec’y of Labor on behalf of Chacon v.
Phelps Dodge Corp. , 3
FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds , 709 F.2d 86 (D.C.
Cir. 1983).  Where direct evidence of motivation is unavailable, the Commission
has identified several indicia of discriminatory intent, including, but not
limited to: “(1) knowledge of the protected activity; (2) hostility towards the
protected activity; (3) coincidence in time between the protected activity and
the adverse action; and (4) disparate treatment of the complainant.”  Turner
v. Nat’l Cement Co. of Cal. , 33 FMSHRC 1059, 1066 (May 2011) (citing Chacon ,
3 FMSHRC at 2510).  When considering indirect evidence, the Court may draw
reasonable inferences from the facts.  Id.

An
adverse action is any “act of commission or omission by the operator subjecting
the affected miner to discipline or a detriment in his employment
relationship.”  Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp. ,
6 FMSHRC 1842, 1847-48 (Aug. 1984).  An adverse action must be material,
meaning that the harm is significant rather than trivial.  In determining
whether adverse action has occurred, the Commission applies the test
articulated in Burlington North v. White .   Burlington N. &
Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006); see also Sec’y of
Labor on behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1931
(Aug. 2012).

If a
complainant establishes the required elements, the burden shifts to the
operator to rebut the prima facie case by showing “either that no protected
activity occurred or that the adverse action was in no part motived by
protected activity.”  Driessen v. Nev. Goldfields, Inc. , 20 FMSHRC 324,
328 (Apr. 1998).

An
operator who cannot rebut the prima facie case may still raise an affirmative
“mixed motive” defense by proving that the adverse action was motivated only in
part by protected activity, and it “would have taken the adverse action for the
unprotected activity alone.  Haro v. Magma Copper Co ., 4 FMSHRC 1935
(Nov. 1982).  The operator must prove this defense by a preponderance of the
evidence.  Id ., see also Pasula , 2 FMSHRC at 2799-800.  When
evaluating an affirmative defense, the Court follows the two-step analysis
outlined by the Commission in Chacon v. Phelps Dodge .  Sec’y of Labor
on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508 (Nov. 1981).  The
first step of the Chacon analysis directs the Court to determine whether
“the justification is so weak, so implausible, or so out of line with normal
practice that it was a mere pretext seized upon to cloak discriminatory
motive.”  3 FMSHRC at 2516.  If the Court finds that the justification is not
pretextual, it then moves to the second step, which is a “ limited
examination” of the justification’s substantiality, and assesses the narrow question
of “whether the reason was enough to have legitimately moved that operator” to
engage in the adverse action.”  Id . at 2516-17.  At no point in this
analysis is the Court sitting in judgment of the merits or demerits of the
operator’s business decisions.

Further
Discussion [29]

By
way of summary of the foregoing, the Court finds that Esquibel was a credible
witness and that he did disclose that Estella was one of those who called MSHA
about Newmont’s safety issues.  Those safety issues were essentially confined
to the copper/leach operation.  Apart from, and independent of, that finding,
given the particularity of the location of the safety complaints, Newmont had
to have been quite aware of the pool of employees who could have made the call
to MSHA from the beginning.  From there, it did not take rocket scientists to
narrow the list of likely callers.  It was logical to deduce that Estella, the
lead in the C crew, one of the best crews at the copper/leach operation, would
have been suspect.  Fortune came to Newmont when Dayne Heese, the safety
manager at Newmont’s Phoenix mine, espied Soto purchasing beer at about 5:00
a.m. that morning of June 17, 2015 at the Midway Market.  Although Heese and
other Newmont employees sanctimoniously described how all employees had
a duty to “speak up” under the company’s “vital behaviors” program, Heese was
considered exempt from that policy.

To
be clear, the Court rejects Heese’s claim that he presumed that Watson, Soto,
and Estella were just as likely to be on a convivial jaunt together that
morning, rather than on their way to work.  As set forth above, Heese was
plainly not a credible witness.  In contrast, the Court also found Wells, Soto
and Estella to be credible in their testimony.  The Court finds that Estella
did not know of Soto’s beer purchase until after Soto disclosed it to him,
following the first round of the three employees’ interrogation. 

The
Court also wants to make it clear that it is not substituting its judgment for
that of Newmont’s in terms of the punishment it meted out for Estella’s alleged
lie to it.  First, as just mentioned, the Court, weighing the credibility of
the various witnesses, has found that Estella did not know of the beer purchase
when first interrogated by Newmont.  Therefore, it finds that he did not lie to
Newmont. 

Second,
it is undisputed that Soto, immediately owning up to his mistake, was not
seeking reinstatement.  Moreover, Newmont’s reaction of firing three employees,
not just Soto, did not wash and Newmont itself recognized that it had to come
up with a second reason in order to fire Estella.  The Court cannot help but
observe that the mine’s reaction to the event, as evidenced by the repeated
interrogations, the drug/alcohol testing, the parade involved with the visit to
the “crime scene,” the search of the car and the destruction of the six pack of
beer in the trunk, was out of proportion to the event.  More was clearly
driving those involved with the infraction – a six pack of beer, completely
unconsumed, in a car trunk at the mine parking lot, which lot was some distance
from the actual work location – simply does not add up as a rational reaction. 

Thus,
as none of the men were found to have alcohol in their bloodstream; with the
alcohol technically on the property, but not at the work station, nor in their
lockers, management’s response was not reasonable and inexplicable on its face. [30]  
The alcohol in the trunk provided a convenient pretext to apply a sledgehammer,
where a tack hammer would’ve been anticipated. [31]  

A
number of additional observations are made with regard to Newmont’s claim that
it fired Estella based on its claim that he lied about his knowledge of the
beer. [32]  
Newmont’s reaction to the six pack of beer issue was so disproportionate that
they cannot have been motivated only by Estella’s presumed dishonesty in regard
to that situation.  Thus  the Court finds, with ample testimony to support its
conclusion, that the safety complaints were the real source of its undue
reaction.  Finding beer only, and little of it, and located only in the car’s
trunk, there was a patently disproportionate reaction by management, a reaction
which was irrational and inexplicable by itself, especially considering the
punishment meted out.  Accordingly, while it is not for the Court to substitute
its judgment as to the proper punishment for a claimed lie, the Court can
observe if the claimed reason simply isn’t plausible.  The Court so finds that
to be the case – Newmont’s claimed reason does not add up.  Rather, the presented
reason was pretextual.  The underlying reason for the mine’s irrational
decision to fire the three employees was the MSHA inspection initiated by miner
complaints.

The
Court also notes that Mitchell’s first claim, that Soto was under suspicion of
being under the influence of alcohol, turned out to be empty.  Then, Newmont
had to formulate new charges.  Following the first round of interrogation,
Mitchell then advised that they were going to check Soto’s lunch box and his
locker to see if there was anything that should not have been there.  Newmont found
nothing improper there either.  In addition, following the interrogation of the
three employees, Wells was told to go through the fridge and the cupboards and
the trash cans to look for any beer cans for evidence, but again nothing was
found.  Further, the Court notes that Soto immediately admitted that he had
brought the beer and told Newmont right then that neither Estella nor Watson
knew of the beer, when he had had no time to concoct a story.

The
flavor of Mitchell’s testimony, as well as that of Heese and Blaskovich, was
that they were dealing with an armed robbery.  Security was partnered and
called to standby at the gate: “to ensure that nobody was making themselves --
I guess, gaining access or leaving property with the alcohol, just to ensure
that alcohol wasn't being transported right there and now that we know there is
a potential that it could be on-site.”  Tr. 679.  Those actions were completely
out of proportion. 

The
Court considered certain aspects of this case to be confounding on both sides. 
For example, Soto’s choice to buy beer on the way to work, instead of picking
it up on his way home, was somewhat illogical.  Nonetheless, it does not follow
that the Court considered his responses to be untruthful.  As to Newmont’s side
of the case, management did not articulate a predictable discharge policy, nor
apply its internal policies in a coherent and reasonable way.  For example, on
the issue of whether alcohol is a fireable offense, Heese did not know if the
employee handbook so stated that to be the case.  Tr. 562.  Instead, he
expressed that any offense could lead to termination, depending on the
circumstances.  Id .  Referencing Newmont’s employee policies, contained
in Exhibit R -11, the Court noted that the Policy

lists
all these things.  But it doesn't tell [the Court] anything that [it has] seen
yet -- maybe [Newmont] will educate [the Court] on this -- about fireable
offenses.  [The policy] just says, don't do this, don't do that.  It doesn't
[identify] grounds for discharge.  . . .  but it doesn't make that next step
and say, “By the way, if you do X, Y and Z, you're fired.”

Tr.  172. 

Newmont’s
actions did not add up in terms of any reasonable application of the Corrective
Action Procedures from the employee handbook.  The handbook does provide that
the disciplinary actions include the following:  recorded verbal warning,
written warning, final warning, and termination.  However, it also states that
the level of corrective action for any violation, including attendance, will
depend on all of the circumstances involved, including the severity of the
misconduct, willfulness, history of corrective action, and any other
considerations.  Clearly that standard was not applied. 

There
are other holes in Newmont’s story.  Finding Soto truthful, Mitchell can’t
simultaneously claim that Estella’s version amounted to a lie, as his version
was consistent with Soto’s.  Estella simply didn’t know of the beer. 
Blaskovich asserted that Estella’s offense was dishonesty during the first
round in which he was questioned.  Even if this were momentarily accepted by
the Court as an accurate recounting, (which to be clear, it is not so accepted),
under the Respondent’s claim, Estella’s rapid acknowledgement counted for
nothing – termination was still imposed.

As
to the side-issue of Exhibits R 5 and P 15, which are, essentially, the same
document, in which Estella stated that he admitted to hearing Marcos ask if
they could stop by his house to drop off the cooler with beer in it, Estella
then explained that he made that remark during the second meeting with his
employer on June 17, 2015.  Tr. 358.  While Respondent energetically points to
that language in Estella’s unemployment letter, the Court finds that it is not
as definitive as suggested.  This is because at the start of his letter Estella
effectively denied knowing of the beer, stating that he “did not notice what
[Soto] had purchased due to the fact that [he, Estella] was looking for [his]
badge” which was needed for entry to the mine gate.  Ex. P 15.

The
inculpating remark only occurs in the context of the second interrogation, when
he was asked if he wanted to change his story.  While the Court does not wish
to insult Estella, neither he nor his girlfriend (who typed up the letter for
him) could be described as wordsmiths and their education level was modest, a
fact displayed in their respective testimony.

As
noted, Respondent made much of the Newmont employee handbook and that Estella
was aware of it and signed an acknowledgement of receiving a copy of it.  The
Court was not impressed by it, especially as it was applied to Estella and, for
that matter, to Watson.  The only clear violator of the alcohol policy was
Soto, who immediately admitted to the violation.  But it cannot be denied that
the admitted violation was on the low end of the spectrum for that violation,
as it was beer, a small amount of it at that, and which was untouched by anyone. 
Newmont’s reaction to the six bottles of beer, destroying it because God only
knows what havoc could’ve ensued if it was left in the car’s trunk in the
parking lot, evidences that it was motivated by more than the beer.  Of course,
Estella was not charged with the alcohol violation, but rather for, according
to the mine’s telling of the story, not admitting initially to knowledge of the
alcohol but then, again by Newmont’s account, admitting to such knowledge
during the second interrogation, which occurred shortly after the first
interrogation.  For this alleged lie, Newmont opted to go immediately to the
ultimate sanction, firing, bypassing its own handbook’s provision providing for
other possible sanctions being imposed. 

Further
demonstrating that something beyond the infraction was motivating Newmont, it
fired Watson for being the driver.  But Watson was not driving a getaway car,
he was simply the hapless driver that day, which Newmont presumed to have
knowledge of the beer.  No claim was made that Watson had lied – even Newmont
never made that claim.  Instead, it presumed that as the driver he had to have
known of the beer, though there is no dispute in the record that he never
entered the market that morning.  That Newmont decided to fire all three
employees demonstrates that it was acting for reasons other than the pretext
presented. 

At
the end of the day, what was going on is clear.  The mine had just experienced
an MSHA visit, an inspection which was not part of the semi-annual statutorily
mandated inspections, but which was prompted by one or more safety complaints. 
The number of management persons involved with that complaint-prompted
inspection was large, and the meetings following it were numerous.  Further,
the inspection did not absolve Newmont, but cited it for the complaints that
were lodged and for which it acknowledged culpability for the cited violations. [33]  
Clearly, Newmont was quite displeased over the complaint, the ensuing inspection,
and the outcome of that inspection.  It took the beer in the trunk opportunity
to retaliate against employees suspected of complaining, and to exact a severe price
from them, while simultaneously sending a clear message to any other employees
at the mine about what happens to those who call MSHA. 

CONCLUSION AND ORDER

For
all of above stated findings of fact, together with the Court’s associated
reasons and analysis, the Court finds that Newmont unlawfully discriminated
against the Complainant, Gene Estella, for engaging in protected activity and
thereby interfering with his statutory rights, in violation of §105(c) of the
Act. 

The
Court directs Newmont to permanently reinstate the Complainant to his former
position at Phoenix Mine together with any back pay and interest due and with
all entitled benefits.  All references to the termination of Mr. Estella, and
the reasons asserted therein, are to be removed from his personnel file.

Within
ten days of this Decision, the Phoenix Mine shall post the decision along with
a visible notice on a bulletin board at the mine that is accessible to each and
every employee, explaining that Newmont has been found to have discriminated
against an employee, that such discrimination will be remedied, and that it
will not reoccur in the future.  The notice shall also inform all employees of
their rights in the event they believe they have been discriminated against.

Pursuant
to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a copy of this decision will
be sent to the office of the Regional Solicitor having responsibility for the
area in which Newmont’s Phoenix Mine is located so that the Secretary may take
the actions required by the rule.

Damages

A
successful complainant is entitled to be made whole for the entire period of
his unemployment, plus interest.  See Local Union 2274, District 28, UMWA v.
Clinchfield Coal Co ., 10 FMSHRC 1493 (Nov. 1988)(“Local 2274”).  When a
discrimination complainant's claim is granted, Section 105 (c)(3) of the Act
provides that the administrative law judge may grant “such relief as it deems
appropriate.” [34]

Accordingly,
the parties are ORDERED TO CONFER within 21 days of the date of this
decision for the purpose of arriving at an agreement on the specific actions
and monetary amounts that will constitute the complete relief to be ordered in
this case.  If an agreement is reached, it shall be submitted within 30 days of
the date of this decision.

If
an agreement cannot be reached , the parties are FURTHER ORDERED to
submit their respective positions, concerning those issues on which they cannot
agree, with supporting arguments, case citations, and references to the record,
within 30 days of the date of this decision.  For those areas involving
monetary damages and relief on which the parties disagree, they shall submit
specific proposed dollar amounts for each category of relief.  In the rare
event of factual disputes requiring an evidentiary hearing, the parties should
submit a joint request.

The
Court retains jurisdiction of this matter until the specific remedies to which
Gene Estella is entitled are resolved and finalized, at which time a final
decision will be issued.  Accordingly, this decision will not become final
until an order granting any specific relief and awarding any monetary damages
has been entered.

SO ORDERED.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Debra M. Amens,
Esq., Amens Law, Ltd., P.O. Box 488, Battle Mountain, NV 89420

Laura Beverage,
Esq., Jackson Kelly PLLC, 1099 18th St., Suite 2150, Denver, CO 80202

[1] Fellow
copper/leach employee Shane Watson was also terminated by Newmont.  While not
strictly in front of the Court, because Watson did not file a discrimination
complaint after his firing, the circumstances involved with Watson’s
termination are instructive in demonstrating Newmont’s pretextual excuse for
his firing. 

[2] The citations
were admitted into the record.  The Court expressed that this testimony would
be considered in the context of “setting the stage” for what was going on at
the mine.  Tr. 31.   Esquibel recognized Citation No. 8779858 as one of
the posted violations.  Issued June 2, 2015, it involved an access gate that
was unlocked although that was not one of the matters he called MSHA about. 
Tr. 28, referencing Ex. P-1.  Next was Citation No. 8779859, also issued June
2nd.  It involved “Miners [who] were observed entering the moving machine --
machine part area of the stripping machine without locking out and tagging out.” 
Tr. 30, referencing Ex.  P 2.  Esquibel saw miners doing that and he did call
in a complaint to MSHA about this.  Next, was Citation No. 8779860, Ex. P 3,
also issued June 2, 2015, involving the tank house fire alarm system, which
Esquibel identified as another of the safety issues about  which he called
MSHA.  He added that Estella and Kyle [White] told him that they were going to
call MSHA about this issue too.  Tr. 32.  Next was Citation No. 8779862, which
was issued on June 3, 2015.  This was not one of the safety issues called in by
Esquibel.  It involved a failure for a number of miners not having received
task training.  Tr. 33, referencing Ex. P. 4.  Considering this context, the
Court finds that there is no question but that an anonymous complaint or
complaints were made to MSHA, that MSHA investigated the mine as a result of
those complaints, and that citations were issued pursuant to its investigation.

[3] Though counsel
in their questioning tended to refer to key players by their first names, the
Court employs the last names for them, including Steve Blaskovich, Rocky
Mitchell, Dayne Heese and Javier Esquibel.

[4] The mine was
also dealing with another problem – the theft of some copper.  Tr. 57.

[5] As part of
Complainant’s effort to establish that he did call MSHA to make safety
complaints, Monica Sampson testified.  Tr. 97.  The Complainant has dated her
mother for the past nine years.  Ms. Sampson worked most recently as a laundry
folder and, before that, as a housekeeper at a motel.  Tr. 98.  Mr. Estella
asked her how he could make an anonymous phone call and she told him about
using the “*67” feature on a cell phone.  She added Estella told her that he
needed to make an anonymous call to MSHA to report a safety violation.  Tr.

100.  She let him use a track phone she possessed and, in her presence, he
called MSHA.  However, she wasn’t sure what was being said, as Estella made the
call in another room.  Tr. 101.  He then gave the phone back to her.  An
unseemly admission, Ms. Sampson stated that she “found” a phone at her former
motel job which had been left in a room and that it was a simple track or
“flip” phone.  She maintained, after asking other housekeepers, that they
advised if the phone was less than $30 in value, she need not turn it in to
lost and found.  Tr. 99, 104.  This occurred over the Memorial Day Weekend. 
Estella later confirmed to her that he made the call to MSHA.  Tr. 102.    

[6] Soto was asked
by Respondent’s Counsel, “when you got in the car with Shane and Mr. Estella,
did you say you needed to drop the cooler with the beer in it at your house?” 
Tr. 169.  But Soto, was clear in his response, replying, “I didn't say beer.  I
just said, "I need to stop at my house to drop off the cooler.”  Tr.
169.  

[7] The
confrontation over the beer in the car’s trunk occurred on June 17th  Tr. 144,
and Ex. P-6.  Exhibit P-6 was also used to note that Soto’s termination
occurred on June 24th.  Tr. 145.  Exhibit P-6 was admitted for the limited
purpose of establishing those dates. 

[8] Though the
Court views the following as inconsequential to the issues to be resolved, it
is noted that during cross-examination, Soto agreed that, following the MSHA
inspection of June 2nd, he had to have task training and that he signed papers
acknowledging that such training was received.  Tr. 153.  Although Respondent’s
counsel asserted that MSHA did not issue a citation for lack of task training
on the stripper machine, Soto responded that the mine did receive a citation
for lack of training on equipment, but he did not know specifically what type
of equipment was involved.  In addition, Soto also informed counsel that he had
operated the stripping machine before receiving training on it, although he
admitted that he was familiar with the machine’s operation before receiving the
training.  Tr. 154.  Soto affirmed that he and Estella would usually carpool to
work and that Watson would join them periodically.  Though not at all in
controversy, as a point of fact he agreed that the A crew worked opposite the D
crew and the C and B crews worked opposite one another.  Tr.156-157.  

[9] The Court is,
in no way, passing judgment on the appropriate discipline to be imposed in these
circumstances — that authority lies with Newmont.

[10] The Court did
not consider much of the cross-examination of Wells to be significant to the
issues to be decided.  The information derived from it is recounted here only
for the sake of completeness and to show that the Court considered the
testimony and then decided that it was not significant.  That cross-examination
involved the following:  When Wells was asked during cross-examination if he
was surprised to learn that Estella had called MSHA over a safety complaint,
the Court interjected, asking the witness if he knew that such calls were made
on a hotline to protect the person from being identified and that at times the
caller remains anonymous even to MSHA.  Tr. 248-49.  The Court then pressed
further, asking the witness if it was equally plausible that, because of the
hotline system’s design, Estella could have called the number 10 times and he
never would have learned of such calls.  Wells agreed.  Tr. 249.  Counsel for
Respondent pressed the point, however, that Wells did not believe that his
performance as Estella’s supervisor would ever give Estella a reason to make
such a call.  (i.e. that Wells was unresponsive to Estella’s safety concerns and
therefor would have a need to bypass him and call MSHA. )  Similarly, Wells
expressed his opinion that Blaskovich was responsive to safety concerns, though
he didn’t work there for very long.  Tr. 250.  However when the Court inquired
further, Wells’ answer was more nuanced about Blaskovich’s reaction to safety
issues, stating there were times when he did not accede to a safety concern. 
Wells agreed with the Court’s summary of his view of Blaskovich and his
addressing safety issues that “there were times in your interaction with him
when he was responsive, but if I understand your testimony there were some
other times when he didn't agree and, therefore, didn't act upon your issues?” 
Tr. 251.  Wells agreed that the mine has a “continuous improvement process” and
agreed that suggestions for such improvements had been made using that
process.  Id .  As to the June
17 incident with the alcohol in the car investigation, Wells agreed that
alcohol is strictly prohibited and that it so states in the handbook.  Tr.

252.  Further he agreed that the drug and alcohol policy is reviewed annually
with the miners.  Tr. 253.  Wells also agreed it was his understanding that  “the
information that had been provided by Mr. Heese about what had happened that
morning at the Midway Market.”  Id .  In a similar reaction, the Court
ultimately considered much of the subject matter on re-direct not to be
especially valuable.  It too is recounted here as a matter of completeness:  On
redirect, Wells was asked about his relationship with Mike Peasnall, who was a
supervisor on the C crew.  Peasnall stopped being the supervisor of that crew a
few months after the June beer issue.  Tr. 260.  Estella’s attorney asked some
questions about the fire pump issue, and Wells explained “We've had some kick
on for no reason.  We've had some that leak constantly.  We've had the jockey
pump, which is a pump that maintains pressure on the line where it would not
shut -- it would run and stop running and stop running instead of just maintain
pressure because there was probably a leak somewhere.  We've had them locked
out for various reasons during different pumps or sometimes all of them.” 
Estella’s attorney then asked, “So when they are locked out what is the fire
suppression system that is available to the operation?”  Wells responded,
“There isn't,” and that nothing occurs, although at one time they did have a
water truck come over.  Tr. 267.  This was stopped, because water would not be
effective to deal with that type of fire.  Tr. 268.  Wells never heard directly
from anyone that a miner had called MSHA; all his information about that
subject was secondhand.  Tr. 271. 

[11] Only Pages 1
and 2 from P 19 were admitted at that time; those pages also include a
reference to Ex. 4 and Ex. 5 on bottom right corner, but those numbers do not
relate to this decision and the exhibit remains identified as Ex. 19.

[12] When Estella
made his statement to the employment division, he was not represented by legal
counsel.  Nor did Estella’s attorney handle any of his employment appeal before
that division.  Tr. 404.  R’s Ex. 5.

[13] Estella
recognized the document, but believed that, unlike Exhibit 15, the version of
the document that he submitted had his signature on it.  Estella was then shown
Ex. R 5, which is the same as P15, except that the latter does have Estella’s
signature on it.

[14] As has already
been noted, these are essentially the same document.

[15] Estella was then
asked about Esquibel’s testimony that he provided Estella’s name to the MSHA
inspector.  Tr. 382.  Estella agreed that Wells continues to work at Newmont
and that nothing bad employment-wise has occurred against him.  Tr. 383.  The
point of this question, obviously, is that Esquibel has not been terminated. 
Of course, no infraction has been made by Esquibel.  In addition, this case is
about Estella’s discrimination complaint. 

[16] The Court
reaches the same conclusion regarding the sentence in Ex. R 5 stating the
Newmont thanked him for being honest.  Tr. 407.  Estella’s “honesty” was
qualified in that his honesty was intact in both rounds of questioning, the
difference being that by the second round he had new information, as provided
by Soto after the first questioning.

[17] Even Blaskovich
testified that he wasn’t so sure that “articulate” would describe Estella.  Tr.

622. This has relevance to the conflicting assertions made by Estella in his
     unemployment claim and his discrimination claim.  Nor could he say that Estella
     was quick to understand new procedures, but rather he understood and would pick
     things up.  Thus, he agreed it would take Estella a little while for him to
     fully understand new procedures.  Tr. 622-23. 

[18] As the Court
remarked at hearing, it views Estella’s claim as encompassing his consideration
of whether he could continue working in the mining community, close-knit as it
is, if he became known as a worker who is likely to call MSHA.  Tr. 424.

[19] Heese has been
a minister since October 2000.  He did not attend any divinity school. 
Self-study is the basis for his title.  Tr. 547.  He explained that “the title
minister was bestowed “through our church by my senior pastor, previous senior
pastor and the church board, and [he] also had to go through a process with
Calvary Chapel Association.”  Tr. 548. 

[20] Heese stated
that, prior to the 2015 incident, the last time the mine had more than the
usual two inspections per year was in 2012.  Tr.  531.  Further, the last time
he had dealt with a hazard complaint was in 2008.  Therefore it is fair to
observe that these events have been rare for Heese.  Tr. 532. 

[21] Heese admitted
that, as senior manager of health and safety, he would be immediately informed
of an MSHA hotline complaint and that he would be very much involved if MSHA is
coming to the mine for a 103(g) inspection.  In fact, he would be the mine’s
lead person for such an inspection.  Tr. 550.  Consistent with that, Heese
admitted that he was involved as the lead person when Inspector Stull came to
the mine and also when Inspector Jackson came to the mine regarding the
discrimination complaint.  Tr. 551. 

[22] It is noted
that Blaskovich’s version is less inculpatory than the story Heese presented in
his hearing testimony, in that in this telling Estella did not remain with Soto
in the store, as Heese contended.

[23] “Speak up,” the
reader will recall, is a mantra of Newmont’s selectively applied “vital
behaviors.”  Blaskovich’s perspective absolved Heese of any concomitant
responsibility to speak up, and of Heese’s leadership role as part of mine
management.  Accepting for the sake of argument that Heese’s version was
credible, he too could have changed the outcome of the whole event and, as part
of the leadership credential that comes with a management position, with more
forceful effect. 

[24] Apart from the
instance cited to demonstrate termination for lying, it will be recalled that
problems adhering to lockout procedures surfaced again in this case, prompting,
among other safety concerns, the anonymous call to MSHA.

[25] Regarding the
testimony of Mr. Cole, generally, the Court noted that “with no offense to

Mr.
Cole I consider him to be a secondary player in this process.  He comes in sort
of late to the process.”  Tr. 815. 

[26] Though it is of
no moment, the Court can only conclude that Cole was mixed up when referring to
Watson’s appeal, as he contradicted himself within his own remarks, stating at
first that Watson “said he knew about the drug and alcohol .  He didn’t
think he was on company property because he wasn't inside the gate.  I pointed
out to him that he crosses onto company property about a mile and a half before
the employee parking lot and there is a sign stating no firearm, drugs or
alcohol just at the entrance to the employee parking lot.  I also did point out
to him that having the alcohol, he didn't feel that it was -- that he was at
fault because he didn't know the alcohol was in his car.  I said it's
your car, you're in control of it.”  Tr. 802-03. 

[27] See page 36
regarding the muffin matter.

[28] To make that
point clear, the Court elaborated that, “for instance, to personalize it, I
could be against a policy.  I could say that I think it's ridiculous, hypothetically,
that the company has a policy that says you can't even bring alcohol in the
trunk of your car, even though there is no intent to consume it until you leave
the property at the end of the day, just to store it in your car.  I could be against
that policy without having any sort of conflict about what happened at the
market.  Being against the policy does not, therefore, what I'm expressing,
equate with knowledge about what happened at the market . . . .that does not
translate into meaning ah, he not only was against that policy, but then he
also -- that means indirectly because he was against the policy he knew there
was alcohol being brought to the vehicle.”  Tr. 870.

[29] The Court fully
considered the parties’ post-hearing briefs.

[30] Newmont’s
emphasis over the employee handbook, when it was never in dispute that Estella
received it when hired and acknowledged such knowledge and receipt of it,
amounts to a distraction.  Tr. 366-68, Ex. R 8.  Estella was not accused of
violating Newmont’s alcohol policy.  Tr. 366.

[31] While
Respondent elicited from Estella that he had a good relationship with Wells
and  Blaskovich, and that he had no problems with Cole and didn’t really know
Thaxter, all intended to show that those individuals had no ax to grind with
him, nor he with them, for the reasons already articulated, the MSHA
complaint-induced inspection disrupted whatever may have appeared on the
surface in the parties’ prior relationships with one another.  

[32] As noted,
Newmont’s inquisition-style questioning produced nothing vis-à-vis Estella,
finding no alcohol in his lunchbox, nor in his locker, and nothing in his body
system via the drug and alcohol testing.  Although Estella did express that, in
his opinion, it was Heese’s responsibility to say something about the beer
while at the market, it should also be remembered that it was not Estella’s
beer, nor was it Estella’s car.  Therefore the only thing Newmont had against
Estella was the claim that he lied about his knowledge of the beer in the trunk
and for that claimed lie, it decided to discharge him.

[33] On December 15,
2016 the Court sent an e-mail to the parties about the following issue:

Thaxter
was shown MSHA mine data retrieval information and that it tracks citations,
orders and safeguards for each mine.  Tr. 893.  There was an issue of an
inadequate foundation for the admission of the document, which Estella’s
counsel represented was derived from MSHA’s website.  Tr. 892-96.  The Court
ruled on the question of admissibility and whether the document was
self-authenticating, as follows, permitting Complainant’s counsel “within two
weeks to give me authority for the admission of this, but first I will have you
state on the record exactly what [the] documents [are] . . . [and to provide]
the reason that [the information] is important.”  Tr. 897-98.  With that
ruling, per the Court’s instruction, Complainant’s counsel identified the
proposed exhibit’s purpose “to show that the number of citations that the
Phoenix Mine had in 2015 were a large number compared to other the other
Newmont sites, which also would have been visible internally at Newmont, and
second, it was also a large number of citations and a large penalty that was
assessed in comparison to the last ten years within the

Phoenix
operation.”  Tr. 898.  Proposed, (Provisional)  Ex. P 27.  The parties
responded to the Court, with Newmont advising that it did not continue to
object to judicial notice of the exhibit which includes various Newmont mines
from MSHA’s data retrieval system, but that its acquiescence did extend to
Complainant’s summary of that data.  Complainant noted Respondent’s position in
its response, while noting that it did not use the data from the exhibit in its
post hearing briefing.  The Court did not consider the exhibit as significant
in resolving the issues in this case.

[34] The cited
section provides, in pertinent part, “if the charges are sustained, granting
such relief as it deems appropriate, including, but not limited to, an order
requiring the rehiring or reinstatement of the miner to his former position
with back pay and interest or such remedy as may be appropriate. . . Whenever
an order is issued sustaining the complainant’s charges under this subsection,
a sum equal to the aggregate amount of all costs and expenses (including
attorney’s fees) as determined by the Commission to have been reasonably
incurred by the miner, . . . for, or in connection with, the institution and
prosecution of such proceedings shall be assessed against the person committing
such violation. . . Violations by any person of paragraph (1) shall be subject
to the provisions of sections 818 and 820(a) of this title.”  30 U.S.C.
§815(c)(3).  Medical expenses, if any, that would have been covered, are within
the ambit of this relief.