Dee Gold Mining Company
Dee Gold Mining Company (FMSHRC WEST 85-131-DM): Discrimination complaint dismissed
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
George A. Jones alleged that Dee Gold Mining Company laid him off because he engaged in protected safety activities, including complaints about grinding shields, respirators, chemical hazards, and the mine's ball-mill lockout procedure. Judge Michael A. Lasher found that Jones engaged in protected activity and that management knew about it, but found no persuasive evidence that the layoff was motivated by those activities. The operator established that the reduction in force had been planned before the key safety complaints and that Jones's work performance and other unprotected conduct supplied legitimate reasons for selecting him. The judge rejected the discrimination claim and dismissed the proceeding.
Decision snapshot
- Governing provisions: 30 U.S.C. § 815(c), 30 U.S.C. § 815(c)(2), and 30 U.S.C. § 815(c)(3)
- Outcome: The Mine Act discrimination complaint was dismissed.
- Key point: Protected safety activity and management knowledge were not enough to prove retaliation when the operator showed a planned reduction in force and legitimate, nonprotected reasons for the layoff.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. DEE MINING
DDATE:
19870908
TTEXT:
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 85-131-DM
ON BEHALF OF MD 85-11
GEORGE A. JONES,
COMPLAINANT Dee Gold Mine
v.
DEE GOLD MINING COMPANY,
RESPONDENT
DECISION
Appearances: Marshall P. Salzman, Esq., Office of the
Solicitor, U.S. Department of Labor,
San Francisco, California, for Complainant;
Jay W. Luther, Esq., Chickering & Gregory,
San Francisco, California, for Respondent.
Before: Judge Lasher
This proceeding involves a discrimination complaint brought
by the Secretary of Labor on behalf of George A. Jones (herein
"Complainant"). The Secretary's complaint, as amended, alleges
that Complainant was discharged (laid off) for engaging in
protected safety activities in violation of Section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)
(1982). (FOOTNOTE 1)
The Secretary contends that Complainant Jones, a maintenance
employee in Respondent's ball mill at the time of his discharge,
was terminated because of protected safety activities occurring
primarily in the last month of his employment. Respondent
contends that as a result of a "Feasibility Capital Cost Study"
(herein referred to as the Kilburn Report) a reduction-in-force
(herein RIF and layoff) was called for and planned, and
Complainant, because of inferior work performance ("slow workman
ship", "productivity" and other problems) was one of two
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employees who were properly laid off in the RIF to bring the mill
maintenance crew down from a complement of 6 employees to 4 as
called for by the Kilburn Report (IIIÄT. 25Ä32).
Untimely Filing of the Secretary's Complaint. In raising
this threshold issue, Respondent contends that there was "a delay
of 5 months beyond the statutory maximum."
A chronology of most pertinent events was the subject of a
stipulation between the parties (Court Ex. 1; IÄT. 42Ä45). Based
thereon and other evidence the following sequence is found to
have occurred.
October 11, 1984 Complainant was terminated (IÄT. 45)
October 12, 1984 Complainant filed "an informal complaint"
with MSHA. Although not critical to this issue, I find that this
filing complies with the 60 day filing requirement for individual
miners contained in section 105(c) of the Act, even though such
complaint is not filed on a particular standard form provided by
the Secretary of Labor. November 13, 1984 Complainant filed a
"formal complaint" with MSHA on an MSHA form. December 5,
1984 The Secretary (MSHA) commenced its investigation of the
complaint. April 24, 1985 The Secretary's written
determination that a violation occurred was issued. July 1,
1985 The Secretary's Complaint was filedÄaccording to the date
stamp thereof in the official Commission file folder. The
parties' stipulation that such was filed on or about June 25,
1985, is rejected in view of the more precise information
reflected in the file.
It is clear that Complainant Jones was prompt with the
filing of his complaint with the Secretary. Respondent's bone of
contention is the Secretary's delay. In Secretary v. 4ÄA Coal
Company, Inc., 8 FMSHRC 905 (1986), the Commission delineated the
various obligations of the Secretary in processing discrimination
complaints:
"The Mine Act requires the Secretary to proceed with
expedition in investigating and prosecuting a miner's
discrimination complaint. The Secretary is required to
act within the following time frames: (1) The
investigation of a miner's complaint "shall commence
within 15 days" of receipt of the miner's complaint (30
U.S.C. 815(c)(2)); (2) the
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Secretary "shall notify" the miner, in writing, of his
determination as to whether a violation of section 105(c)(1) of
the Mine Act has occurred "[w]ithin 90 days" of receipt of the
miner's complaint (30 U.S.C. 815(c)(3)); and (3) if the
Secretary determines that there has been a violation of the Act,
"he shall immediately file a complaint with the Commission." 30
U.S.C. 815(c)(2). (Emphasis added throughout.) Finally, section
105(c)(3) of the Act specifically states, "Proceedings under this
section shall be expedited by the Secretary and the Commission."
30 U.S.C. 815(c)(3).
While the language of section 105(c) leaves no doubt
that Congress intended these directives to be followed
by the Secretary, the pertinent legislative history
nevertheless indicates that these time frames are not
jurisdictional "
**********
Related passages of legislative history make equally
clear, however, that Congress was well aware of the due
process problems that may be caused by the prosecution
of stale claims. See Legis.Hist. at 624 (discussion of
60Äday time limit for the filing of miner's
discrimination complaint with the Secretary). The fair
hearing process envisioned by the Mine Act does not
allow us to ignore serious delay by the Secretary in
filing a discrimination complaint if such delay
prejudicially deprives a respondent of a meaningful
opportunity to defend against the claim.
Accordingly, we hold that the Secretary is to make his
determination of whether a violation occurred within 90
days of the filing of the miner's complaint and is to
file his complaint on the miner's behalf with the
Commission "immediately" thereafterÄi.e., within 30
days of his determination that a violation of section
105(c)(1) occurred. If the Secretary's complaint is
late-filed, it is subject to dismissal if the operator
demonstrates material legal prejudice attributable to
the delay.
"Applying these principles to the present record, there
is no question that the Secretary seriously delayed in
filing the complaint. Nevertheless, the record before
the judge did not establish that the Secretary's delay
prejudiced 4ÄA. In the absence of this requisite
foundation, the judge erred in granting 4ÄA's motion to
dismiss."
Respondent's basis for dismissal of the complaint is set
forth at pages 38 and 39 of its post-hearing brief:
"In a great many cases, a delay of 5 months beyond the
statutory maximum would not cause prejudice. This case, however,
is different because of the critical nature of precise times.
Page 5
Thus, among the facts that have been helpful to Dee Gold's
defense have been the time of the decision to layoff Mr. Jones;
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the times at which certain incidents, particularly the
hydrostroke feeder and AR incidents were committed by Mr. Jones
in relation to the time that Mr. Nameth was placed in charge of
mill maintenance; the time at which it was decided that layoffs
would occur at all; the time at which the ball mill was in the
process of being repaired; (to a minor extent) the time at which
Mr. Nameth announced at the meeting of October 9 that layoffs
were to occur; and the dates upon which the events in the Jensen
memorandum took place. These are likely to be contested in one
fashion or another in the Government's brief, due to the
occasionally ambiguous and uncertain testimony of various
witnesses on the subject of precise dates, or timing. Where all
the pertinent dates in a case occur in a relatively short period,
it is much easier for prejudice to occur, and Respondent would
submit that it has occurred in this case. Had this Complaint been
brought 4 to 6 months earlier, recollections could have been more
quickly canvassed, and a better record prepared."
It is concluded that Respondent has not established that the
Secretary's delay prejudicially deprived it of a meaningful
opportunity to defend itself in this matter. There is no
allegation of any specific prejudice it sustained in pretrial
preparation or in the trial of this matter. The general
allegation that the memory of witnesses may have been impaired by
the delay is insufficient to meet the burden of establishing a
material legal prejudice; there is no articulation of the process
by which Respondent was prejudiced. It is also noted that the
delay of approximately 5 1/2 months here is significantly less
that thatÄ2 yearsÄinvolved in 4ÄA Coal Company, Inc., supra.
There being no basis in argument or in the record to conclude
that Respondent was materially prejudiced, its contention that
the complaint should be dismissed for untimely filing is
rejected. It should finally be mentioned that (1) a considerable
portion of the time which elapsed between the allegedly
discriminatory act and trial was accounted for by the extensive
pre-trial procedures and settlement negotiations engaged in by
the parties, and (2) Respondent, as will be shown within, on the
day it laid off Complainant was put on notice of possible
litigation and began taking steps to prepare therefor (See Exs.
JÄ2 and JÄ3).
General Matters
Respondent, Dee Gold Mining Company, was at all material
times a Nevada partnership engaged in gold and silver mining
(IIIÄT. 61).
Complainant, age 34 at the time of hearing, commenced
employment with Respondent on March 26, 1984 (Ex. RÄ2), as a mill
maintenance mechanic (IÄT. 69, 73, 75). His immediate supervisor
was Allen "Al" Jensen, mill maintenance foreman (IÄT. 70). Some
of Complainant's basic duties were repair, fabrication, welding,
pipefitting, crusher repair and pump repair (IÄT. 77, 82).
Various of these duties were performed on or about mills near the
mine which separated the gold ore from waste material.
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Complainant was laid off at the end of his day shift on the
afternoon of Friday October 11, 1984, the last day of his work
week (IÄT. 105, 106; IIIÄT. 114Ä116, 156). Thus, the total term
of Complainant's employment with Respondent was less than seven
months.
Sometime in May or June of 1984 Complainant received a
written evaluation from Al Jensen rating him as excellent in
every category (IÄT. 80Ä81). (FOOTNOTE 2) He received no other ratings
prior to his layoff.
While Complainant's work performance was commendable in the
beginning, it thereafter deteriorated. A decline in his speed and
attitude was noted by his immediate supervisor, Jensen, following
management's refusal to grant the mill maintenance crew's request
for a raise (IIIÄT. 132Ä134).
With respect to Complainant's attitude, Jensen testified
that: "he would throw things, get a little bit angry about not
having something to work with." Jensen also noted that
Complainant complained about changes in the work schedule about
this time, since he was building a house and that his hours began
to drop. The records on overtime show that the high point on
Complainant's overtime occurred in July, with 40 hours of
overtime, and dropped to half that in both August and September.
(See Exhibit RÄ2.) By contrast, during the same period Ingle
worked 66 hours of overtime in July, 56 hours of overtime in
August and 71 hours of overtime in September.
Mr. Jensen, following Complainant's termination, and in
accordance with usual procedures, filled out a Dee Gold standard
Payroll Change Notice Form, Joint Exhibit 1, which reflected his
views on Complainant's ability as of the date that he filled it
out, October 16, 1984. Complainant's "conduct" and "production"
were listed as "poor," while his "initiative" was listed as only
"fair." There were no "excellents" in the rating.
In the summer of 1984, the mill maintenance crew (FOOTNOTE 3)
consisted of Complainant, Wayne Overholser, Joseph P. Timko, Dick
Eisenbarth, Mike Ingle and Mitch Geyer. All but Geyer were "mill
maintenance mechanics". The sixth mill maintenance employee,
mechanic Wayne Overholser, worked for only part of the summer of
1984, before he transferred to the truck shop around September 1,
1984 (IIÄT. 21, 88, 122Ä124, 136Ä138; IIIÄT. 15, 42-43, 66).
Another employee, Kenneth Kohles, was promoted to and began
working in mill maintenance, on or about September 1, 1984 (Ex.
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JÄ8) before the layoffs (IIÄT. 110, 152; IIIÄT. 44, 65,
163Ä167). (FOOTNOTE 4)
Dick Eisenbarth and Joseph Timko were hired subsequent to
ComplainantÄTimko in June and Eisenbarth in July 1984 (IÄT. 82).
Ingles was hired before ComplainantÄon October 26, 1983 (IIÄT.
79); Geyer was hired before Complainant alsoÄon February 6, 1984,
but as a "helper" or laborer (IIÄT. 122); Geyer became a mill
maintenance employee in August 1984 (IIÄT. 125). Timko commenced
his employment with Respondent on June 11, 1984. Mr. Timko was
elected mill maintenance safety representative (spokesman)
sometime during the period JulyÄSeptember 1984 (IÄT. 124Ä126;
IIÄT. 141). Certain of Respondent's management was aware he held
this position (IÄT. 125Ä126). Mr. Timko was laid off on October
9, 1984 (IIIÄT. 109) shortly after a meeting on the same
dateÄwhich was called to discuss complaints (including safety
complaints)Äwas conducted with the mill maintenance crew by mill
superintendent Steve Nameth. (FOOTNOTE 5) Mr. Timko, like Complainant,
testified that he understood when he was hired that it was to be
a permanent position (IÄT. 122). Crew member Mike Ingle who was
favored over Complainant and Timko in the RIF, however, was told
when he was hired that there might be a layoff "after things were
going" (IIÄT. 99) and that Jensen told him he was "afraid to hire
too many people because of the layoffs" (IIÄT. 99).
Protected Activities
At some indeterminate time prior to the start-up of the mill
in September 1984, Complainant registered a verbal complaint to
his immediate foreman, Al Jensen, concerning not having a
grinding shield. Jensen replied that he would "put some on order"
(IÄT. 78).
Complainant also complained (1) to Larry Turner, Safety
Director, and Al Jensen, that he needed a respirator since he was
working with cyanide acid and gasses (IÄT. 79, 86Ä87) on or about
September 25, 1984 (IÄT. 87), and (2) about an acid plate (IÄT.
88Ä89).
Complainant engaged in various activities which Respondent
was aware of in connection with his dissatisfaction with
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Respondent's so-called "lockout" procedure at the ball mill.
Complainant initially appraised this problem as follows:
"A The first time that I was informed that they had an
emergency and Al Jensen said you've got to go into the
mill and fix a liner. I said fine, where do you want me
to put my lock on the motor? Al said well, we can't
lock the motor out and I said why is that. He said they
don't want to lock out the motor and you can lock out
the air clutch but I didn't like the way to find the
ball mill to lock out the air clutch as opposed to the
locking out the motors. If the chair for a person who
is working in the mill and air motor is still running
there is a possibility the clutch could engage by
itself, by outside means and the mill would turn.
Q. And what would happen if anyone was in the mill?
A. The person would be dead.
Q. What would kill him?
A. Fifty or sixty tons of steel balls that would crush
him to death.
Q. What did Al Jensen say when you told him you thought
the mill should be locked out?
A. He said he had to do what he was told.
Q. Who did he say told him that?
A. Nameth."
(IÄT. 89Ä90).
Thereafter, on or about September 25, 1984, Complainant
engaged in a conversation with Wayne Dillon, a safety
representative of the State of Nevada who had been conducting a
safety class at the mine, and Larry Turner, Respondent's Safety
Director, in which Complainant asked Dillon if Respondent's
mechanical lockout procedure was in compliance with State or MSHA
regulations. Complainant's account of this conversation follows:
"Q. And what did Mr. Dillon say?
A. He said absolutely not.
Q. What did Mr. Turner say?
A. Turner didn't say anything.
Q. Did you make any complaints to Mr. Turner about the
lock out procedure?
A. I told Mr. Turner Mr. Dillon is right here standing
beside you and he said the mechanical lock out or air
Page 10
clutch lock out is not acceptable.
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Q. What did Mr. Turner say in response to that?
A. He was dumbfounded; didn't say anything."
(IÄT. 91; IIÄT. 24Ä29).
Prior to October 1, 1984, Mr. Turner told Complainant that
Bob Morley, an MSHA investigator said it was "okay for Dee Gold
to have a mechanical lock out on the ball mill's air clutch."
(IÄT. 92). After this, on October 1, Complainant went to MSHA's
Reno, Nevada office and discussed the matter with Joe Frazier,
supervisor of mine inspectors, who Complainant understood was
Morley's "boss." Frazier, according to Complainant, stated:
"He said it was unacceptable to MSHA to have a
mechanical lock out only the air clutch. He said it was
a violation of standards. He read me the quotation in
the regulation that all energized equipment will be
de-energized before any worker will work on that
equipment."
(IÄT. 93; See also IIÄT. 30)
On Wednesday morning, October 3, 1984, Complainant advised
Mr. Turner that "a mechanical lock out was not acceptable
to the Reno office." Mr. Turner indicated that he would look into
it when he got the time (IÄT. 94, IIÄT. 32). Both on October 4
and October 5 Complainant asked Turner if he had called Reno and
Turner hadn't (IIÄT. 33). Complainant advised Joe Timko, the
miners' elected mill maintenance safety representative, that he
would not go into the ball mill under existing conditions (IÄT.
95Ä96). He also confirmed to Al Jensen that he would not enter
the ball mill (IÄT. 97). This constitutes a refusal to work
because of an asserted unsafe condition.
Complainant gave this account of a final safety complaint
which occurred on the morning of October 11, 1984, the afternoon
of which he was laid off:
"Q. Between the time of the Timko lay off and your lay
off did you make any safety complaints?
A. Yes, I did.
Q. When did you make any complaints?
A. I think I believe it was Thursday morning, the day I
was fired.
Q. When were you fired?
A. I was fired that afternoon.
Q. What was the nature of your complaint?
A. First thing in the morning Al Jensen told me to move
my welding table approximately ten feet to one side. I
objected immediately.
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Q. What was the basis for your objection?
A. Well it was a collection area. The floor had one
foot rise of concrete and would collect water and
slurry. I would have to be on the sump pump side of
slurry side which was a danger of electrocution was
always very dangerous.
Q. Who did you say you made a complaint too?
A. Al Jensen. He said this was what Steve Nameth wanted
and this is what he is going to get.
Q. Who informed you of your lay off on the eleventh?
A. No one actually informed me of my lay off.
Q. How did you learn about it?
A. Al Jensen had me do an emergency pipefitting job. He
set a pipefitting job where I had to put a water line
into the feed chute of the rod mill. When I was all
done with this job I went back to put time on my time
card and my time card was not in the slot. I went to Al
Jensen and said, well, where is my time card. I asked
and he said I could tell you in an hour and I asked him
if I was laid off.
Q. What did you then?
A. I went into Steve Nameth's office.
Q. What did you say to him?
A. Said I am the least productive employee? He said I
am.
Q. What did you say?
A. I said I am going to fight it even with my record
and evaluations I have in my record I am still not the
least productive employee.
Q. Did you say on what basis?
A. No. I just said I am going to fight it." (FOOTNOTE 6)
(IÄT. 106Ä107)
It is thus clear in the record and found here that
Complainant engaged in various safety activities which in the
abstract were of a nature sufficient to invoke the protection of
the Act. Respondent for the most part concedes, and the record
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in any event establishes, that Respondent's management were aware
of these various activities prior to Complainant's layoff on
October 11, 1984.
The record, however, also shows that none of Complainant's
safety complaints were received by his foreman or other of
management's personnel with overt resentment, hostility or other
discernible angry or anti-safety reaction. Also, during the
summer of 1984, all the mill maintenance crew members were making
complaints (IÄT. 157; IIÄT. 56, 88, 128, 149). No one seemed to
be making more complaints than any other (IIÄT. 88, 128, 140,
149). Furthermore, all of the mill maintenance crew refused to
enter the ball mill with the motor running (IIÄT. 141, 157, 161).
The October 9 Meeting.
After a rumor circulated that Mill Superintendent Steven J.
Nameth was to issue a company policy that the air clutch lock out
would be sufficient and all employees would abide by such policy
(IÄT. 97, 98), Complainant told Timko that "we should have a
meeting" with Arthur J. Schwandt, General Manager for the project
and Nameth's supervisor (IÄT. 98). Other maintenance employees
asked Al Jensen for such a meeting (IIÄT. 89).
The meeting was held sometime between 9 a.m. and 11:30 a.m.
in Steve Nameth's office (IÄT. 99, 141; IIIÄT. 101). The mill
maintenance crew at that time consisted of Complainant, Joseph P.
Timko, Dick Eisenbarth, Mike Ingle, Mitch Geyer and as previously
noted, Kenneth Kohles (IÄT. 99, 103, 141Ä142; IIÄT. 88, 162;
IIIÄT. 65, 166Ä167).
Joseph Timko, the safety representative, considered calling
a meeting with Al Schwandt but did not do so after he learned of
the "very close" friendship between Schwandt and Nameth (IÄT.
136Ä137). The meeting in any event was called by Nameth after he
was told by foreman Al Jensen that the men wanted a meeting with
Schwandt to discuss "complaints" (IIÄT. 98Ä100; IIIÄT. 99, 102).
Nameth reported the request to Schwandt who told Nameth "he was
busy" and told Nameth to conduct the meeting (IIIÄT. 100).
The meeting was held in Nameth's office (IIIÄT. 101) and was
attended by Nameth, Al Jensen, Complainant, Timko, Ingle and
Eisenbarth. Mitch Geyer and Kohles did not attend the meeting
(IIÄT. 129; IIIÄT. 100).
At the beginning of the meeting, Complainant said something
to the effect that the men would like Art Schwandt present at the
meeting (IIÄT. 91; IIIÄT. 135) and Steve Nameth indicated that
Schwandt would not be present but that he (Nameth) would give
Schwandt all the pertinent information from the meeting. Nameth
then opened up the discussion and Timko raised the subject of pay
raises (IIÄT. 36Ä37). Thereafter, work procedures and non-safety
subject matters were brought up and discussed (IÄT. 100; IIÄT.
37Ä42, 90; IIIÄT. 77).
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Thereafter, either Complainant or Timko, probably Complainant,
raised the question of the lockout procedure (IIÄT. 90; IIIÄT.
135).
Those in attendance at this meeting gave differing accounts
of it at the hearing. With the exception of Complainant, most of
their remembrances of it were sketchy, sometimes remarkably
contradictory, and for the most part lacking in detail. Other
than Complainant's version the most inclusive accountÄwith one
inaccuracy as to when the "lockout" discussion occurredÄwas that
of Nameth:
"The way I remember it, Jones started to speak. I
interrupted and said I have an announcement to make. I
said we were going to have a lay off that week.
Somebody spoke up and said, who is going to be laid
off. I said the least productive employee. They wanted
names or somebody said who and I don't think I
mentioned the name. Then Jones started complaining
about various things in the mill. I'll see if I can
remember some of them. He complained about wage rates,
he complained about work schedules, he complained about
a job he had done in the rock mill making some kind of
complaint. If I had done it his way we could have made
it in four days but my way took 16 days. He complained
about the use of the thickness of hard plates we were
using for wear plates and of course he complained about
the ball mill and rock mill lockout procedure. Before
he got to that, JonesÄnot Jones, I'm sorryÄMr. Timko
spoke up rebuking Jones and saying what's all this
about. I thought we were going to talk about lockout
procedures and well then, Jones started talking about
lockout procedure. He said it was not safe. It was
inadequate. We checked with Bob Morley and Bob Morley
said it was safe and we were legal. Jones then pulled
out a card, I've been to see Bob Morley's boss. He
mentioned the man's name, I think some district
director and I think his name was Frazier and Frazier
said it is not acceptable. I said I don't know anything
about that. It was Bob Morley who said it was
acceptable. Jones said here's his card, call him right
now and I said I would look into it. He saidÄkept
repeating, call him right now, call him right now. He
kept repeating and I said if you have nothing further
we better go back to work and the meeting broke up
about that time.
Q. Do you recall anything else about that meeting? Let
me withdraw that question. Was there a specific number
of people as being identified as people who would be
laid off at the meeting?
A. No.
Q. I couldn't quite hear when you were speaking and did
you say it was going to be the least productive
Page 15
employee or least productive employees going to be laid
off?
Page 16
~1642
A. It was plural.
Q. Did the lay off in fact take place that day?
A. Yes.
Q. Who was laid off that day?
A. Joe Timko.
Q. Was anybody laid off later that week?
A. Yes, George Jones was laid off two days later.
Q. Why was it Timko was laid off first and then Jones?
A. Well, the work Jones wasÄTimko was on was not
critical to the operation of the plant. Jones was
working on a pipeline that was critical." (IIIÄT.
77Ä79).
Nameth's version of the October 9 meeting is at variance
with the accounts of all others as to the time when he made the
announcement that there would be layoffs. According to Nameth, he
interrupted Complainant at the beginning of the meeting to say he
had an announcement to make, i.e., that there would be a layoff.
Nameth's rendition appears faulty in this one respect and I find
that the layoff announcement did occur after the "lockout"
discussion (IÄT. 103; IIIÄT. 155). Nevertheless, in all other
respects, Nameth's recollection of the October 9 meeting appears
more lucid and detailed than the others and not being in great
variance from Complainant's version it is accepted.
Before the "lockout" discussion, two other safety matters
were discussed, "face shields" and "hooks welded on a handrail"
(IÄT. 100Ä101; IIIÄT. 136). It is clear, however, that subjects
other than safety matters were also brought up, such as pay
raises, wage rates, work schedules, and work matters such as
plate welds, etc. (IIÄT. 36, 38Ä42; IIIÄT. 103, 136).
As noted above it appears that Complainant brought up the
lockout procedure issue, saying it was not safe. Nameth replied
that MSHA Inspector Bob Morley had said Respondent's lockout
method was safe at which point Complainant produced a business
card from his pocket and said he had gone to Morley's
bossÄFrazierÄwho said it was not safe. Nameth said he was not
aware of that (IIIÄT. 103Ä104). Complainant said "here's his
card, call him right now." Nameth said he would look into it and
Complainant kept repeating "Here's his card, call him right now."
According to Nameth, Respondent's safety director thereafter
contacted Frazier and after some procedural processing MSHA
determined Respondent's method was unsafe and that Respondent had
to lock out the motor (IIIÄT. 104Ä105).
Following the meeting, Nameth reported to Schwandt. Nameth
testified:
Page 17
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"A. Immediately after the meeting I went to Mr. Schwandt's office
and I stated that we could not terminate these people now as we
had previously planned and he said why not and I said because
they have gone to MSHA.
Q. What was said then?
A. He said we had planned to lay these people off
before they went to MSHA so let's go ahead with the
reduction in force." (IIIÄT.89).
Schwandt confirmed Nameth's account of this conversation
(IIIÄT. 36).
On October 9 after discussing the matter with Schwandt,
Nameth checked with Al Jensen to "find out what jobs Jones and
Timko were on". Nameth determined that Timko's job was not
critical to the operation to be completed that day and that the
job Complainant Jones was on was critical. He decided to let
Timko go that day and to let Complainant go at the end of his
work week on October 11 (IIIÄT. 110, 116).
Later in the afternoon of October 9, 1984, Nameth told
Jensen that Timko was to be terminated that day. Nameth was not
present when Timko was told by Jensen he was to be laid off
(IIIÄT. 109Ä114).
Following the layoffs (IIIÄT. 139Ä140), Nameth asked Jensen
to prepare a memorandum (Ex. JÄ2) with respect to Jones and Timko
which Nameth testified "was intended to be seen by myself and Mr.
Schwandt in case we had problems as we are having right now"
(IIIÄT. 80) and in anticipation of future litigation (IIIÄT. 95).
Schwandt also asked Nameth to prepare such a memo to describe the
incidents that led Nameth to believe Complainant Jones and Timko
should be discharged (Ex. JÄ3; IIIÄT. 80Ä81).
Respondent's Position.
Prior to the opening of the mine an engineering firm
(Kilburn) prepared an authentication of Respondent's preliminary
capital and operating budgets entitled the Kilburn Feasibility
Capital Cost Study and, as previously noted, referred to herein
as the Kilburn Report (IIIÄT. 23).
Excerpts from this Report were introduced into evidence as
Ex. RÄ1. Such reflect that a total crew of four, 2 mill
maintenance mechanics and two helpers, were contemplated as the
"proper number" for the mill when its construction was completed
and it came under "operating conditions." (IIIÄT. 23Ä25, 135)
More mill maintenance employees were needed and hired during the
period prior to the time the mill began operating (IIIÄT. 26, 31)
in approximately September 1984 (IÄT. 76).
Sometime around the end of August 1984, shortly after the
time Steve Nameth took over the supervision of the mill
Page 18
~1644
maintenance function, the Mine General Manager, Arthur J.
Schwandt, discussed with him the size of the mill maintenance
crew with the conclusion that the crew size should be four with
the possibility that they might get by with less and that two
should be laid off (IIIÄT. 26Ä29, 30, 31Ä34, 42, 90). In a
meeting in mid-September between Schwandt and Nameth it was
decided that Timko and Complainant would be the ones who would be
laid off in the reduction-in-force (IIIÄT. 29, 31Ä33, 34, 47),
the time of which would be contingent on the mill's "operation"
and was anticipated to be "around" the first week of October 1984
(IIIÄT. 48, 50Ä51). (FOOTNOTE 7) Al Jensen was in agreement that Timko
and Complainant were the two who should be laid off (IIIÄT. 80).
In this connection, Jensen, who himself had been laid off
and was not employed by Respondent at the time of the hearing,
testified:
"Q. In your view who were the least productive workers
of the group at the time of his determination?
A. I had three, George Jones, Joe Timko and Mike Ingle.
Q. In ranking among those three who would you have laid
off?
A. If I had to do it because George and Joe because
Mike Ingle was senior of the two.
Q. Now, inÄwhy was it you regarded Mr. Jones as one of
the least productive in the unit?
A. I think it had to do a lotÄseemed like he slowed
down, you couldn't prove this but it seemed like he had
slowed down an awful lot in his work; his temperament
had been very, very badÄcussing, throwing things
around.
Q. What was the reason that you gave him a poor conduct
in the general payroll change notice form?
A. Temper.
Q. Jones?
A. Oh, Jones. It was temper, getting mad at any little
thing." (emphasis added) (IIIÄT. 138)
After he took charge of the mill maintenance crew in August
1984, Mill Superintendent Nameth told the foreman, Al Jensen, to
tell the crew that "we were overstaffed and we were going to have
to cut two or three people off." He also told Jensen to "keep a
Page 19
~1645
close eye" so that they would get "rid of the least productive
people". (IIIÄT. 67). (FOOTNOTE 8) Around the time Overholser transferred
out of the mill maintenance crew (September 1, 1984), Jensen was
asked by the crew about the transfer and they told him they had
"a lot of work". Jensen told them that he "had been told we
already still have too many people now." (IIIÄT. 134, 148).
Complainant Jones was present at this time (IIIÄT. 134Ä135).
The decision to terminate Complainant as one of the two to
be laid off in the reduction-in-force was made by Mill
Superintendent Nameth with the approval of General Manager Arthur
J. Schwandt, in late August 1984 (IIIÄT. 90, 96, 117Ä119,
122Ä124, 156). The actual date it was determined that Complainant
would be laid off on October 11, 1984, was October 9, 1984
(IIIÄT. 122). At the time of the layoffs of Complainant and Timko
on October 9 and 11, 1984, respectively, Mr. Nameth was the
person in management's hierarchy who effectively decided to hire,
discharge and layoff employees in the mill maintenance unit
(IIIÄT. 60, 96).
In his testimony, Nameth described at length the reasons for
laying off Complainant Jones (and Timko) and the process by which
this decision was reached as follows:
"A. The AR plate where Jones put in more than was
necessary?
A. Yes.
Q. That would have been about the twenty-seventh or
twenty-eighth of August.
Q. How important was that particular incident to you in
reaching a conclusion?
A. The importance was that it was becoming apparent
that Jones wouldn't follow instructions. Also important
in the fact he wasted a lot of expensive AR plate.
Q. When did the incident with the two by four pieces
occur?
A. Sometime in July, early August.
Q. And how did you hear about that?
Page 20
~1646
A. The carpenter involved told me about it. The carpenter was
working for me. I believe at the time Jones was probably
reporting to Bernie Carter through Jensen.
Q. Were you in a position at that point to take any
disciplinary action?
A. I didn't. I found out about it a day or so after it
happened." (IIIÄT. 85Ä86).
**********
"A. He was apparently deliberately slowing down. He was
slow getting to the job. He always complained about
stuff he had to work with." (IIIÄT. 87).
**********
"Did you have authority to reduce the force on your own
authority?
A. Probably, I am sure I would have discussed it with
Mr. Schwandt.
Q. Did you discuss it with Mr. Schwandt?
A. Yes, I did.
Q. When was that?
A. The function was turned over to me on the
twenty-fifth. The following Monday would have been the
twenty-seventh and I wouldÄI'm sure I would have met
with him on the twenty-seventh.
Q. What was said during that meeting?
A. I mentioned the fact that we had too many people in
that department and told him of the other operations
that I had been on. He mentioned that there was some
kind of study by Kilburn that indicated we were
supposed to have four mechanics after the operation
started up.
Q. Were any people discussed as candidates for a
reduction in force?
A. Yes.
Q. Who was discussed?
A. Joe Timko and George Jones.
Q. What was said about them by each of you?
A. I mentioned the fact they looked like they were
Page 21
dragging their feet. They weren't giving us an honest
days work.
Page 22
~1647
There were several incidents which showed this. I think theÄI had
an incident with George Jones on the cone crusher discharge chute
where I told Al Jensen to put the discharge chute with no
instructions (sic) because we were going to encounter a lot of
clay and the chute should be without obstructions. George put the
plate in there with protective obstructions and to protect the
bolt heads. Somebody had to go back in there and cut them out.
That added a lot of time to that job.
Q. Did you mention this to Mr. Schwandt?
A. I don't remember whether I did or not.
Q. I am just trying to find out what you mentioned to
him during this meeting?
A. One of the things I mentioned to him, I could see
crackers put in the plant, put in the chutes. They
didn't put in wear plates and we had an incident with
George Jones where what he was instructed to do was
braze resistant plates. It's expensive. He had
instructions to put in the hard plate to a certain
length and he exceeded that and wanted it his own wayÄI
don't understand that level and when I
questionedÄGeorge doesn't know to follow instructions.
He likes to do things his own way.
Q. Did you tell that to Mr. Schwandt?
A. Yes, I did.
Q. Did you tell anything else to Mr. Schwandt
concerning these two employees or either of them in
this meeting you've just described?
A. You are talking about the meeting of the
twenty-seventh?
Q. I am talking about the meeting of the week of August
twenty-seventh.
A. Actual incidents, no, with the exception of the fact
that both Jones and Timko were very slow getting away
from the tool room. Where most of the other mechanics
would be off in 10 or 15 minutes to their jobs, Jones
and Timko very often would be there 30Ä35 minutes after
we started the shift.
Q. Now, did Mr. Schwandt have anything to say with
respect to either of those employees?
A. I think Mr. Schwandt made some comments about Joe
Timko's work. I don't think he said anything about Mr.
Jones.
Q. Do you recall whether he mentioned any particular
Page 23
Incidents with Timko?
Page 24
~1648
A. He mentioned it everytime he noticed Mr. Timko that he wasÄI
don't remember his exact words, but he wasÄbut that he was moving
in slow motion.
Q. Do you recall whether he said anything else on some
particular incident?
A. No, it was a long time back.
Q. Was there any decision made at that time to have a
reduction in force? How did the meeting conclude?
A. There was no question at that time we were going to
have a reduction in force. We had made a tentative
decision that it would be Jones and Timko but I decided
I would watch both of them and see if there was any
change in attitude and behavior.
Q. There were no incidents that occurred that week with
Mr. Jones?
A. Yes, there was an incident of the hydrostroke
cylinder. Mr. Jones and Mr. Timko were both assigned to
remove the hydrostroke cylinder because it had
malfunctioned. We had to take it apart to where it had
malfunctioned. It took Jones and Timko about eight
hours to remove that and replace it. I felt that was
much too long a time.
Q. Was that reported to Mr. Schwandt at anytime during
the week?
A. Sometime during the week, yes. I think it wasÄmay
have been Mr. Schwandt had walked by that job that
particular day and observed some of it.
Q. And who was involved inÄwith that particular job?
A. Mr. Jones and Mr. Timko. Somebody said that Mike
Ingle was there part of the time, but I don't recall
seeing him.
(IIIÄT. 68Ä72)
**********
Q. Did you have any subsequent meetings with Mr.
Schwandt on the subject of the reduction in force?
A. Yes.
Q. When?
A. Sometime during the week of September 16th or 17. I
believe 16thÄearly in the week.
Q. What was said during that meeting?
Page 25
A. I walked in his office and told him I wanted to
reduce these guys, let these guys go now.
Page 26
~1649
Q. What did Mr. Schwandt say?
A. Mr. Schwandt said we still have a lot of work to do;
don't cut your nose off to spite your face. Let's wait
a few more weeks.
Q. Had there been any event that took place other than
the hydrostroke cylinder that had brought you to that
conclusion or what was it?
A. In the case of Mr. JonesÄI'm sorry, Mr. Timko, had
done a job on me number four conveyor belt skirting. He
had fabricated the skirting, it was all wrong, had to
be redone. That was sometime during that period.
Q. What about Mr. Jones, did anything happen to him
other than the hydrostroke cylinder incident?
A. No specific things I can remember except for the
fact I observed them apparently working at a slow pace,
getting away from the tool room late, having coffee
breaks."
(IIIÄT. 68Ä73; See also IIIÄT. 117Ä118).
On cross-examination, Mr. Nameth reiterated his reasons for
selecting Complainant and Timko as the two mill maintenance
employees who should be laid off, and pointed out that his
decision was made before the "lockout" matter arose:
Q. " as of the twenty-seventh, what in Mr. Jones
conduct led you to conclude that he would be a
candidate for favor to be reduced in force?
A. His general conduct about dragging his feet, taking
a long time to leave the tool room to go to his job,
the cone crusher charge chute incident that I
describedÄthat was some of it.
Q. Now, how did you observe his general conduct the
fact that it took him a long time to leave the tool
shed? Were you standing there watching?
A. Their starting time was 6:30. I would come up to the
mill area about that time. I noticed other mechanics
were off on their jobs and Timko and Jones were still
in that area gathering up tools, getting ready to beÄto
go to a job.
Q. You didn't say anything to him?
A. I would deal with him through Mr. Jensen. I would
complain to Mr. Jensen about it.
**********
Page 27
~1650
Q. Now you as of the twenty-seventh felt Mr. Jones' performance
was unacceptable; is that correct?
A. Yes.
Q. You didn't feel it incumbent upon yourself to give
him a chance to improve himself?
A. Before I took over from Bernie Carter, since I was
going to have responsibility of that plant, I was out
in the field quite often where Jones and Timko were
working. I observed their work habits at that time but
I wasn't directly responsible for them at that time. I
formed conclusions. Even at that time I had suspicions,
yes. I talked to Al about their performance and their
performance did not improve from the day I took over.
It seemed to get worse but it wasn't all that good up
until that time.
**********
Q. When did you learn that Mr. Jones had refused to
enter the ball mill under the lockout procedure that
you had instituted?
A. You look for an exact date?
Q. Approximately?
A. It would have been about the twentieth or
twenty-first of September.
Q. And this was after you had already formed the
conclusion that he would definitely be terminated?
A. I would think so, yes. (IIIÄT. 90Ä94).
**********
Q. I believe you mentioned something about a two by
four that Mr. Jones had thrown on the floor?
A. No, it wasn't one two by fourÄa carpenter was
working at a table. He had cut a number of two by fours
for a job that he was doing and Mr. Jones came along
and asked him if he could have one or some of the two
by fours and the carpenter said no, I need all that
I've got. Mr. Jones in a fit of temper swept everything
off the table.
Q. And did this help you to reach a conclusion that he
should be terminated?
A. It didn't help Jones case any. (IIIÄT. 97)
**********
Page 28
~1651
Q. There was other evidence of Mr. Jones sweeping two by fours on
the floor?
A. No. There were other reports of Mr. Jones not being
able to get along with some of the other people around
there.
Q. Second hand reports?
A. Yes.
Q. But you never checked those out did you?
A. No, I didn't. (IIIÄT. 98).
CONCLUSIONS AND DISCUSSION
The Discrimination Formula.
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of production and proof to establish (1) that he engaged
in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797Ä2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.,
1981); and Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817Ä18 (April 1981). The operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that (1) it was also motivated by the miner's unprotected
activities, and (2) it would have taken the adverse action in any
event for the unprotected activities alone. The operator bears
the burden of proof with regard to the affirmatively defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936Ä38 (November 1982).
The ultimate burden of persuasion does not shift from the
complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Boich v.
FMSHRC, 719 F.2d 194, 195Ä96 (6th Cir.1983); Donovan v. Stafford
Const., Co., 732 F.2d 954, 958Ä59 (D.C.Cir.1984) (specifically
approving the Commission's PasulaÄRobinette test); and Goff v.
Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 1986).
In terms of the required prima facie case in discrimination,
Complainant clearly established the first elements thereof, i.e.
that he had engaged in protected safety activities and that
Respondent's management was aware thereof prior to the time he
was laid off.
Discriminatory Motivation
The first of the two salient issues posed here are whether
the adverse action (layoff) taken by Respondent against
Complainant was "in any part" motivated by Complainant's
Page 29
pro
Page 30
~1652
tected activities. Respondent contends that it was not so
motivated in either laying off two of the mill maintenance crew
or in selecting Complainant as one of the two to be laid off.
Respondent's second line of defense, the affirmative defense
provided under the Commission's discrimination formula, then
frames the second issue: Assuming arguendo that Respondent was in
part motivated by Complainant's protected activities, was it also
motivated by his unprotected activities and would it in any event
have laid him off for his unprotected activities alone.
Under the 1977 Mine Safety Act, discriminatory motivation is
not to be presumed but must be proved. Simpson v. Kenta Energy,
Inc. and Jackson, 8 FMSHRC 1034, 1040 (1986). Complainant, in
order to carry the burden of establishing discriminatory
motivation, seeks to have an inference thereof drawn from various
circumstantial factors. From gleaning and organizing these points
from this difficult record and briefs, several are set out and
discussed below. It is noted that three of these factorsÄwhich
are found to lack significant meritÄare listed in the amended
complaint and constitute part of the foundation for Complainant's
theory of discrimination.
(a) The Secretary argues that Complainant and Timko were
shown in the record and characterized by Jensen (IIIÄT. 150) as
the two biggest "complainers" and that these were the same two
Respondent selected to lay off.
I construe this characterization by Jensen to at least
include safety complaints as well as other work-related
non-safety complaints. Nevertheless, various other factors take
the edge off this particular argument. The other members of the
mill maintenance crew also complained of safety and other
matters, also refused to enter the ball mill to do repair work
unless the motor was locked out, specifically complained about
the lock out procedure, and had arguments ("discussions") with
Nameth.
As far as Timko was concerned, Nameth denied (IIIÄT. 127),
and it was not otherwise established, that he had knowledge that
Timko had been elected the crew's "safety representative." I thus
draw no carry-over inference that had it been established that
Timko was discriminated against, such discriminatory intent
should be attributed to Respondent's purposes in also laying off
Complainant. It is noted (1) that the Secretary's discrimination
case on behalf of Timko was settled and not litigated and (2)
that the record in this matter does not independently contain
sufficient evidence from which a determination can be made
whether or not Timko was discriminated against, or more
specifically, whether or not Respondent was discriminatorily
motivated in laying off Timko.
Respondent credibly established good and sufficient reasons
related to the work performance of Complainant for picking him to
be one of the two to be laid off in accordance with the Kilburn
Page 31
~1653
Report's staffing plan after the construction phase was completed
and the mill was operating.
(b) In the Amended Complaint, Complainant alleges that
Nameth became irritable at the October 9 meeting after the "lock
out" problem was raised and after it became apparent that
Complainant had gone to the MSHA office in Reno and complained
about Respondent's lock out procedure.
Nameth's demeanor at this meeting was the subject of
numerous descriptions, conflicting even among Complainant's own
witnesses, one of whom said that Nameth was irritable even when
he came into the meeting (IIÄT. 90). After careful scrutiny of
the record, I find no credible, probative evidence that Nameth's
demeanor at the October 9 meeting was any different than his
customary demeanor which the crew members described in such terms
as "belligerent", "hostile," "irritable", "angry," etc. (IÄT. 81,
90, 93, 134, 151). I find no reliable evidence and I am unable to
conclude that any irritability shown by Nameth during the October
9 meeting was traceable to or a reaction to the lock out
discussion or the expression of safety complaints. The record
demonstrates there is both consistency and reliability in (1)
Respondent's position and the testimony of its various witnesses
that the layoff decision was made between Schwandt and Nameth
some two to three weeks prior to this meeting, and (2) the bases
established by Respondent (heretofore discussed) for the layoff
of two crew members and Complainant and Timko in particular.
(c) Another factor urged by Complainant for inferring
discriminatory motivation is that there was no "advance notice"
announcement, communication or other specific notification to the
employees at any time that their employment was to be temporary
or that there would be a layoff at a future time (Complainant's
brief, p. 22).
Based on prior findings, I conclude that this contention has
no merit and should not be considered part of any basis for
inferring discriminatory motivation. Although Complainant
testified that he was not advised at the time of hiring that the
position was temporary, Ingle was so advised. Geyer testified
that there was a layoff rumor going around which is consistent
with Nameth's testimony that he told Jensen to tell the crew that
a cut of two or three mill maintenance employees would have to be
made. It is also consistent with Jensen's testimony that he told
the crew that he "had been told that we already still have too
many people." I do infer from this evidence that the crew was
aware that a layoff was coming prior to the October 9 meeting in
view of the small size of the crew and their poignant sensitivity
to employment concerns shown in the record.
(d) Complainant alleges: "As justifications for the alleged
early decision to terminate Jones and Timko, Nameth complained
that Jones had wasted a lot of expensive AR plate and that Jones
and Timko were slow in getting away from the tool room. In fact,
Page 32
~1654
Nameth complained that Jones and Timko would often remain from 30
to 35 minutes after the start of the shift (IIIÄT. 70). Both of
these complaints involved the wasting of company assets (either
money or time). It must be remembered that Jones and Timko,
although marked for termination as of the end of August, were to
remain on the job until sometime in October. It is inconceivable
that a manager could observe employees wasting half an hour at
the start of the shift, consider it important enough to be a
factor in a decision to terminate the employees, and never
complain or take any steps to see that it did not continue for
the next six weeks of their employment." (Complainant's Brief p.
18).
As with many of Complainant's assertions, I find little
merit in this contention. Nameth's failure to take direct
disciplinary or corrective action himself is consistent with
Respondent's intention of laying off employees in the near term.
Also Nameth testified that he was "sure" that he expressed a
complaint through Jensen about Complainant's and Timko's
tardiness (IIIÄT. 30, 91, 93). It is also apparent that shortly
thereafter in mid-September, Nameth asked Schwandt to trigger the
layoff immediately (IIIÄT. 73). According to Nameth, whose
testimony I find generally persuasive and reliable, Schwandt
replied: " we still have a lot of work to do; don't cut
your nose to spite your face. Let's wait a few more weeks."
(IIIÄT. 73).
Had ComplainantÄand TimkoÄbeen punitively discharged for
"wasting" company "time and money", this argument would have more
strength. However, with a layoff planned in the foreseeable
future, Nameth's actions are not inconsistent with Respondent's
general position, nor are they seen as demonstrating a
discriminatory frame-of-mind. By contrast, Complainant's work
performance here is seen as providing a business justification
for respondent's decision to select him for the layoff.
(e) Complainant argues that various work and staffing
decisions by Respondent were not "consistent with a business need
to reduce the number of maintenance employees." Various of these
points which are frequently general and not particularly
probative to begin with, are that:
(i) Kenny Kohles, an inexperienced 19Äyear old who had
been hired as a janitor in May 1984, was promoted to
the mill maintenance crew around September 1:
(ii) After the layoffs, the crew members who remained
were required to work considerable overtime;
(iii) An outside contractor (Western General
Contractors) was brought in to do maintenance work
which could have been performed by employees of Dee
Gold;
(iv) Complainant and Timko were the only two workers
laid off in 1984.
Page 33
The record reflects that Respondent did get by with two less
mill maintenance employees after the layoffs and after the mill
Page 34
~1655
began operating; that the complement of 6 crew members prior to
the mill start-up was reduced in accordance with Respondent's
Kilburn Report staffing plan (IIIÄT. 25, 27, 32) which was
conceived before Complainant (and Timko) were hired; that Kohles
was brought in to replace Overholser who requested a transfer out
of the crew because of "friction" and that such replacement kept
the size of the crew constant until such time as the layoff was
called for. Kohles, according to Schwandt, was a "very hard
working young fellow" (IIIÄT. 43) and was "proficient in heavy
equipment operation" (IIIÄT. 65).
Respondent also credibly explained that the reduction in its
mill maintenance force was called for even though there was no
reduction in other sections of the mine, and that such was due to
the fact that "we had more people than we had budgeted for"
(IIIÄT. 62). Respondent then established that it was "cheaper to
pay a premium for" overtime than to have extra workers due to the
cost of fringe benefits, such as health benefits (IIIÄT. 40, 41),
and that the work performed by Western General Contractors was
within the framework of its contract and not a diversion of work
from the mill maintenance crew (IIÄT. 153; IIIÄT. 37Ä39).
(f) Complainant contends the after-the-fact written
statements of Jensen (Ex. JÄ2) and Nameth (Ex. JÄ3) were prepared
as part of a pretextual business justification for the layoff of
Complainant and Timko. Here Complainant contends (Complainant's
Brief, p. 24):
It is only after the (October 9) meeting, after the
terminations and after Jones informs Nameth that he is
going to fight his termination, that Jensen is
instructed to write anything negative he can think of
relating to the employment history of Jones and Timko.
Likewise, the self-serving memorandum from Nameth to
Schwandt only occurs after Jones informs Nameth that he
is going to fight. This is almost a classic scenario of
an ex post facto attempt to fabricate a factual
justification for a prohibited action already taken."
There is no contentionÄin this argumentÄthat any of the
deficiencies of Complainant and Timko contained in the written
statements of Jensen and Nameth did not occur. The point sought
to be made is that such were fabricated and after-the-fact of the
layoffs and thus should be the basis for an inference of
discriminatory intent of animus. The response to this contention
appearing at page 14 of Respondent's brief is found to have
merit.
"JÄ2 was not a routine document, rather one prepared
for the purposes of the litigation. Specifically, it
was prepared by Mr. Jensen pursuant to Mr. Nameth's
request to list all of the problems that he, Jensen,
had experienced with Messrs. Jones and Timko.
Page 35
~1656
Mr. Schwandt asked Mr. Nameth to prepare, and to have Mr. Jensen
prepare, memoranda justifying Mr. Jones' termination This
memorandum was intended entirely for the internal purposes of Dee
Gold, and was not intended for distribution to third
parties The only reason the Government obtained it was
because it asked for it in its discovery and it was dutifully
produced. There is no suggestion in the record that the
memorandum was relied upon by any parties in terminating Mr.
Jones (although some of the incidents recounted in it are
pertinent); indeed, it is perfectly plain that it was made
following his termination."
I find nothing irregular, suspicious, or nefarious in the
fact that Respondent attempted to make a record for its own
purposes after the layoffs in anticipation of future litigation
(IIIÄT. 54Ä57). Respondent effected no pretense that such
statements were prepared prior to the layoffs. This contention is
rejected.
At page 16 of its brief, Complainant expresses a related
concern:
"There is no dispute that management was aware of
Jones' safety complaints during the month of September.
If, in fact, they had decided in September to terminate
Jones and were, in fact, fearful of "repercussions"
would it have not been logical to prepare these
memoranda at the time the decision was made and while
Jones was still employed? The timing of these memoranda
is additional evidence that the allegations contained
therein were pretextural justifications for decisions
made in October which had nothing to do with ability or
productivity."
The record firmly establishes that all members of the mill
maintenance crew had expressed safety and other complaints during
the summer of 1984 and were apparently not reluctant in doing so.
It appearsÄand the the probative evidence establishesÄthat
Respondent had acquired real reason to anticipate litigation
following both the October 9 meeting and the "I'll fight it"
conversation between Nameth and Complainant after Complainant was
laid off on October 11, 1984. The fact that Respondent did not
"document" Complainant's deficiencies earlier is not illogical
but it is consistent with the position Respondent has taken in
this matter that Complainant was laid off in a longÄanticipated
reduction-in-force, and was not punitively discharged for
unsatisfactory work performance or other reasons. An inference
that the timing of the obtaining of the Jensen and Nameth
statements is indicative of "pretextual justifications" will not
be drawn.
(g) As part of the mosaic from which Complainant urges the
inference of discriminatory motivation be drawn, Complainant
points out that approximately three months after he was hired,
Complainant Jones received a written evaluation rating him
Page 36
~1657
"excellent" in all categories and he received no subsequent
ratings or reprimands until his discharge.
Respondent credibly established and I have hereinabove found
that Complainant's performance deteriorated thereafter in various
respects. Respondent's evidence in this respect is reliable and
persuasive and its determination to select Complainant for layoff
is found to be reasonably attributable-by virtue of the
preponderant probative evidence-to the justifications asserted
and not to Complainant's protected activities.
(h) The most questionable circumstances raised by
Complainant arose out of the October 9 meeting and from which
Complainant maintains that the timing of the layoff announcements
reflects anti-safety or retaliatory animus. Thus:
a. the meeting was called for the purpose of discussing
complaints, including safety complaints;
b. safety complaints were indeed expressed at the
meeting, including the "lock out" problem, and;
c. after such, and Complainant's revelation that he had
reported the lock out problem to MSHA, Nameth announced
the layoffs;
(d) Nameth incorrectly testified that he announced the
layoffs before the lock out issue and Complainant's
revelation were brought up.
Respondent, however, credibly established that it had
previously planned the layoffs to take place around the time the
October (FOOTNOTE 9) meeting was held. Also, as previously shown,
Complainant's belief and contention that Respondent had not
previously planned, had no justification for, and had made no
prior indication to the crew as to, the reduction in crew size
was shown to be in error. Further, the quality of this record
does not provide any reliable or persuasive basis to conclude (a)
Nameth showed irritability at the meeting, or (b) even assuming
that he did, that it was a reaction traceable to the voicing of
any safety complaint or complaints.
Respondent, on the other hand, persuasively established that
the layoffs were planned long before Complainant was hired and
that there existed good and sufficient reason for the selection
of Complainant for the reduction.9 In addition, as previously
shown, various of the bases for Complainant's assertion of
discriminatory motivation, tenuous to begin with, did not stand
up well under scrutiny.
Page 37
~1658
In reaching the conclusion that the Secretary failed to establish
that Complainant's layoff was discriminatorily motivated,
consideration has been given to the fact that the record is
barren with respect to ancillary or background factors which
would reflect a disposition on the part of Respondent's
management personnel, singularly or collectively, to engage in
such conduct. A prior history of, or contemporary action
indicating, antagonism or hostile reaction to the expression of
safety complaints was not demonstrated. There was no evidence of
retaliation against other employees who had expressed safety
complaints either in the mill maintenance crew or other
departments.
The record in this proceeding contains no admissions or
other statements, oral or written, from the management personnel
involved indicating an anti-safety reporting animus. Indeed, the
record reflects that none of the employees were threatened or
subjected to retaliation for expressing safety concerns or, in
connection with the lock out issue, for not working inside the
ball mill.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510Ä11 (November 1981), rev'd on other grounds sub. nom.
Donovan v. Phelps Dodge Corp., 709 F.2d (D.C.Cir.1983); Sammons
v. Mine Services Co., 6 FMSHRC 1391, 1398Ä99 (June 1984). The
present record contains no direct evidence that Respondent was
illegally motivated, nor does it support a reasonable inference
of discriminatory intent.
Ultimate Conclusions.
It is concluded that Respondent's motivation in selecting
Complainant for layoff was for his several unprotected activities
and the business justifications asserted by its management
personnel, Schwandt, Nameth and Jensen, and that such decision
was justified. It is further found that the adverse action
complained of (layoff) was not in part discriminatorily
motivated. Thus, the Secretary failed to establish a prima facie
case of discrimination under Section 105(c) of the Act.
Even assuming arguendo that it were established by a
preponderance of the evidence that Complainant's discharge was
motivated in part by his protected activities, Respondent showed
by a clear preponderance of the reliable, probative evidence that
it was motivated by Complainant's unprotected activities and that
it would have taken the adverse action in any event for such. See
Gravely v. Ranger Fuel Corp., 6 FMSHRC 799 (1984).
Page 38
~1659
ORDER
Complainant having failed to establish Mine Act
discrimination on the part of Respondent, the Complaint herein is
found to lack merit and this proceeding is dismissed.
Michael A. Lasher, Jr.
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 The hearing was held during a period of four days, October
21, 22, 23, and 24, 1986. For each day of hearing there is a
separate transcript beginning with page one. Accordingly,
transcript citations will be prefaced with "I", "II", "III", and
"IV", respectively, in this manner "IÄT ", "IIÄT.
", etc.
~FOOTNOTE_TWO
2 Respondent contends that Complainant's work performance
deteriorated after this time.
~FOOTNOTE_THREE
3 The record with respect to the number and composition of
the crew was confused, possibly because of different employees
coming in and out of the crew.
~FOOTNOTE_FOUR
4 It thus appears that during the summer of 1984 and up to
the layoffs in October 1984, the mill maintenance crew by and
large did number six employees. This supports Respondent's
position that a layoff of 2 employees was called for to effect
compliance with the Kilburn Report.
~FOOTNOTE_FIVE
5 The October 9 meeting was a significant event in the
context of this proceeding and is discussed more fully within.
~FOOTNOTE_SIX
6 It is of some significance in this conversation
Complainant did not specifically protest that he felt he was
being laid-off due to his safety activities.
~FOOTNOTE_SEVEN
7 According to General Manager Schwandt, employees who were
to be laid off (RIF'd) in all cases were not given advance notice
(IIIÄT.37).
~FOOTNOTE_EIGHT
8 Although Complainant alleges, and various of the crew who
testified said, that the crew had no "advance notice" of the
layoffs, Nameth's testimony that he told Jensen that two or three
of the crew were to be "cut" is supported by the testimony of one
crew member (Geyer) that there was "hearsay going around" that
there was to be a reduction (IIÄT. 132). Also, as noted above,
Page 39
Ingle conceded he was told when he was hired that there might be
layoffs after things got "going" (IIÄT. 99). These two
evidentiary items lend support to Respondent's position.
~FOOTNOTE_NINE
9 In Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982) the
Commission pointed out: "Our function is not to pass on the
wisdom or fairness of such asserted business justifications, but
rather only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as
claimed."
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