ASARCO, Incorporated
ASARCO, Incorporated (FMSHRC WEST 85-161-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
Joe Arnoldi alleged that ASARCO discriminated against him in violation of section 105(c) of the Mine Act. The case concerned his removal from work at the Coeur Mine and the company's decision not to rehire him, with the parties disputing whether the actions were motivated by protected safety activity or by unprotected conduct. Judge John J. Morris found that Arnoldi did not prove discrimination and dismissed the complaint.
Decision snapshot
- Cited provision: 30 U.S.C. § 815(c)(1)
- Outcome: The discrimination complaint was dismissed.
- Key point: A miner must show both protected activity and a connection between that activity and the adverse employment action.
Full text (FMSHRC public release)
CCASE:
JOE ARNOLDI V. ASARCO INC.
DDATE:
19870603
TTEXT:
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~1015
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
JOE ARNOLDI, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEST 85-161-DM
v.
Coeur Mine
ASARCO, INCORPORATED,
RESPONDENT
DECISION
Appearances: Nathan S. Bergerbest, Esq., Cotten, Day, Doyle,
Washington, D.C.,
for Complainant;Fred M. Gibler, Esq., Evans, Keane,
Koontz, Boyd, & Ripley, Kellogg, Idaho, for
Respondent.
Before: Judge Morris
Complainant Joe Arnoldi brings this action on his own behalf
alleging he was discriminated against by his employer, ASARCO,
Incorporated, in violation of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.A. 801 et seq.
The applicable statutory provision, Section 105(c)(1) of the
Act, now codified at 30 U.S.C.A. 815(c)(1), in its pertinent
portion provides as follows:
No person shall discharge or in any other manner
discriminate against or otherwise interfere
with the exercise of the statutory rights of any miner
because such miner has filed or made a
complaint under or relating to this Act, including a
complaint notifying the operator or the operator's
agent, or the representative of the miners of
an alleged danger or safety or health violation
or because such miner has instituted or caused
to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner on behalf of himself of others of any
statutory right afforded by this Act.
After notice to the parties, a hearing on the merits was
held in Spokane, Washington commencing on December 2, 1986.
The parties filed post-trial briefs.
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Applicable Case Law
In order to establish a prima facie case of discrimination
under Section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish that (1) he
engaged in protected activity, and (2) the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797Ä2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.1981);
Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 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 not in any part motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner it nevertheless may defend affirmatively by
proving that (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 affirmative 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
Constr. Co., 732 F.2d 954, 958Ä59 (D.C.Cir.1984) (specifically
approving the Commission's PasulaÄRobinette test). The Supreme
Court has approved the National Labor Relations Board's virtually
identical analysis for discrimination cases arising under the
National Labor Relations Act. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397Ä403 (1983).
Summary of the Evidence
Complainant's Evidence
Wendell Kunst, William Arthur, MSHA Inspector James Arnoldi,
Joe Arnoldi and Kim Bradshaw testified for complainant.
On March 18, 1985 WENDELL KUNST had been assigned to stope
277 at level 3100. His co-worker, also a production miner, was
Bob Chavez. Complainant Joe Arnoldi (sometimes hereafter referred
to as Joe, or Mr. Arnoldi) served as the nipper. Joe gets
supplies for the miners and operates the hoist in the raise (Tr.
14Ä16, 33, 336). A nipper's performance is important to the
efficiency of the mining operation (Tr. 16). Joe had done a good
job for the miners on other occasions (Tr. 16). They never found
him "goofing off" and his work never adversely affected their
production (Tr. 17).
On March 18 the miners left Joe at the tugger, about 60 feet
above the stope, with instructions to await their call for the
skip (Tr. 18, 19, 21). They didn't call for it. Kunst didn't see
Joe sleeping that morning nor did he know one way or another if
he was sleeping (Tr. 18Ä20).
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Kunst saw Michael Lee (mine manager) and William Arthur (shift
boss) that morning. Lee and Arthur didn't ask if Joe was sleeping
or unresponsive to their needs (Tr. 19, 30, 31).
It is important for the nipper to stay alert at all times
(Tr. 20). Kunst thought the tugger was safe. But it was in close
proximity to the haulage train (Tr. 21, 22). A miner can tell
when a train approaches (Tr. 23).
WILLIAM ARTHUR, shift foreman at the Coeur Mine, didn't see
Arnoldi sleeping on March 18 (Tr. 25). Arthur further identified
a document filed with the Idaho Industrial Commission. The
document stated that the shift boss and mine superintendent both
observed Joe Arnoldi asleep at the top of 277 (Tr. 25Ä28). In
fact, Arthur indicated that Arnoldi's eyes were open when he saw
him (Tr. 28).
Arthur had been walking about six or seven feet behind Lee
as they approached the 277 stope. They were checking to see if
the miners were doing the work safely and if they needed material
(Tr. 29). When Arthur first saw him Arnoldi was six feet from the
tugger sitting down or leaning against a rock or some burlap.
He then heard Lee tell Arnoldi that he wasn't supposed to be
sleeping on the job (Tr. 30, 35, 55). Lee had no conversation
with Arthur before he took Arnoldi out of the mine except to ask
if such action was justified (Tr. 31). To take a miner to the top
usually means he's going to be fired (Tr. 32). Arthur didn't
recommend to Lee that Arnoldi be fired or suspended (Tr. 32, 33).
Arthur had been interviewed by MSHA special investigator
Lopez. He kept one copy of the interview and turned one over to
Andre Douchene, the mine manager (Tr. 37, 40). Arthur did not
indicate to the company attorney, Fred Gibler, that he did not
want to verify the accuracy of the MSHA statement. However, Mr.
Gibler represented such was Arthur's position (Tr. 38, 56). Lopez
did not followup with Arthur (Tr. 57).
In February 1985 MSHA inspector Jim Arnoldi and Don Downs
issued ASARCO a loose ground citation. The cited area was under
Arthur's jurisdiction (Tr. 39, 57). Mine manager Douchene
attempted to fire miners Ernie Myles and Bob Magoon because of
the citation (Tr. 40). Douchene wanted them fired because they
had disregarded his directions to bar down the slab. Joe Arnoldi
was the nipper for Magoon and Myles (Tr. 40, 58). Douchene cooled
down when he learned Arthur had told them not to further bar down
the loose ground (Tr. 41, 58). Jim Arnoldi and Downs also
inspected the 277 raise, on the 3100 level (Tr. 59).
The tugger at the 277 raise, 3100 level is mounted on a 10
x 10 and it hoists timber and supplies in the raise. It has 700
feet of cable (Tr. 42, 43). When the tugger is raising the skip
the operator would be watching either the wire drum or the skip
(Tr. 44, 45). Arthur has observed Joe Arnoldi operating the
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tugger while standing on the 10 x 10 cap (Tr. 45). Arthur has
seen other miners operate the tugger in a similar fashion (Tr.
45). The cap is behind the timber and the haulage train track
(Tr. 46). Some tuggers were mounted on the other side of the
timber. This particular tugger was mounted between the haulage
train track and the timber because there was already a tugger
bench mounted there (Tr. 46). The clearance between the train
track and the tugger measures 30 to 32 inches (Tr. 46). When a
miner is operating the tugger it would be 20 inches from the back
of his foot to the train track. The train itself extends about 10
inches so the clearance is about 7 to 10 inches when the train
passes (Tr. 47, 48).
Arthur didn't consider this a safety hazard because the
operator probably didn't stand there when the train went by. By
moving one step either direction the tugger operator would be out
of the way (Tr. 47, 48).
The slusher, weighing 400 to 500 pounds, is the heaviest
item hoisted by the tugger (Tr. 48). If a train were to come
through while lifting the slusher the nipper would be expected to
set the brake and move aside (Tr. 49). The nipper could see
lights on the five car train for 100 feet or more (Tr. 49).
However, a curve obstructs the motorman's visibility of Arnoldi's
location (Tr. 49, 50). If the engine was pushing the train the
motorman would be 40 to 50 feet back towards the rear of the
train (Tr. 50). Usually there is a miner, called a swamper, who
rides on the second car of the train (Tr. 51).
A nipper can usually see the train with his side vision (Tr.
54). There are no special safety rules directing the motorman to
stop and be certain that the nipper is busy at the 34Ä277, 3100
level (Arnoldi's work station) (Tr. 54).
When the train is in motion it rings a bell. But the exhaust
fan near Arnoldi's work station might drown out such noise (Tr.
54). Neither Joe Arnoldi nor any other miner ever complained to
Arthur about the height of the tugger or its distance from the
track (Tr. 59). During a work shift a nipper would operate the
tugger, at the most, an hour and a half (Tr. 60). An exception
would arise when the operator was raising a crib. That operation
might take all day (Tr. 60).
Arthur has never had any problems with nippers getting out
of the way of trains (Tr. 61).
On March 18 the train motor was not running. The train was
sitting at the top of 277, right at the tugger (Tr. 61).
Witness Arthur identified his handwritten statement from his
notebook (Exhibit E). Arthur didn't talk to Lee or Andre Douchene
before writing his notes (Tr. 64).
On the morning of March 18th the temperature at Arnoldi's
work station was 75 to 80 degrees (Tr. 66). Arnoldi's position
was a good place to sit (Tr. 66). Arnoldi's area was reasonably
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clean that day.
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Other than for Lee's statement Arthur does not have any reason to
believe that Joe Arnoldi was sleeping that morning (Tr. 68).
MSHA INSPECTOR JAMES ARNOLDI has been assigned to the
Spokane Coeur d'Alene, Idaho field office for ten years. He is
well respected by a large majority of his fellow inspectors (Tr.
70Ä72).
MSHA's lead inspector is normally permanently assigned to a
mine and he normally issues the citations arising during any
inspections (Tr. 73). The "second" inspector could also write
citations. If they both observed a violation the lead inspector
would write the citation (Tr. 73). Inspector Arnoldi was not the
lead inspector for ASARCO's Coeur unit (Tr. 74). Don Downs had
that position (Tr. 75). Most of the time Inspector Downs was
alone when he inspected the Coeur mine (Tr. 75).
In 1984 Inspector Arnoldi had conducted hoist inspections at
the mine (Tr. 76). In February 1985 Inspector Arnoldi's
supervisor assigned him to the Coeur mine as the second inspector
(Tr. 75, 76). The next MSHA inspection commenced February 5 and
concluded February 21 (Tr. 76).
Inspector Arnoldi's status was questioned at the mine and,
in front of shift bosses and manager Carole Ward, Downs stated
that Arnoldi was just his XXXX secretary and he was there to take
notes (Tr. 77, 116, 117). Inspector Arnoldi complained to his
supervisor about Inspector Downs' comments (Tr. 78).
During the inspection in February 1985 Inspector Downs
issued three citations. Inspector Arnoldi participated and
concurred with Downs that the citations should have been issued
(Tr. 79, 80). An S & S citation was issued for loose ground on a
hanging wall (Tr. 80). Bradshaw and Bill Arthur were also present
(Tr. 80). The two miners involved in this incident were initially
fired for this willful violation. Joe Arnoldi was, in effect, an
MSHA informant concerning this event (Tr. 81). Inspector Arnoldi
advised Downs that the loose ground violation was more serious
than they had initially anticipated (Tr. 82). There was a second
loose ground citation (Tr. 82). ASARCO did not dispute the S & S
loose ground citation but the company disputed the non S & S
loose ground citation (Tr. 86).
Inspectors Downs and Arnoldi attended the closeout
conference with company representatives Andre Douchene and Kim
Bradshaw (Tr. 83). Douchene was also the elected miner's
representative (Tr. 83, 84). Inspector Arnoldi had told some of
the miners that they could elect their own miner's representative
from within the ranks of the miners (Tr. 85). In discussing the
non S & S citation Inspector Arnoldi pointed out that the ground
fractures had no oxidization around them. Douchene then got
redfaced and puffed up he said that "you may be the law but I'll
show you who the law is around here". He then stormed out the
door (Tr. 87). In two or three minutes he returned and stated
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"All I need is one letter to get rid of you around here."
Inspector Arnoldi told him to write the letter (Tr. 87). He also
stated he was there under supervisory orders and he didn't care
to be at the mine (Tr. 87). Douchene then stated that the
inspector was involved in a conflict of interest with his family
working there. In addition, Douchene stated "You have too much
[family] here to XXXX around too much" (Tr. 87, 88).
MSHA's conflict of interest policy, set for in Exhibit C3,
does not prohibit an inspector from inspecting a mine where a
relative works (Tr. 89, 91). Joe Arnoldi was his only blood
relative at the mine. However, by marriage there are two
stepsons, two brothers-in-law, nephews and an uncle. There were
enough relatives to be concerned about retaliation (Tr. 92, 123).
Joe is the only relative working at the Coeur unit with the last
name of Arnoldi (Tr. 92).
The inspector told his supervisor about Douchene's remarks
(Tr. 92, 93).
On March 19, 1985, the following day, MSHA was intending to
inspect ASARCO's hoist at the Galena mine three miles from the
Coeur mine (Tr. 93, 94). In arranging this inspection Inspector
Arnoldi called Douchene and told him they would inspect the
hoist. Then ASARCO's schedule would be "straightened out for the
year" (Tr. 95). The inspector denied there was anything to
straighten out on the hoist inspection (Tr. 95). In that
conversation Douchene didn't tell Inspector Arnoldi that Joe was
suspended, [or was about to be suspended]. Inspector Arnoldi
hadn't seen his son for a week (Tr. 95).
Later that afternoon Mike Lee called Inspector Arnoldi and
said he wanted Joe to come to the mine as soon as possible (Tr.
97). The next night Inspector Arnoldi learned that Joe had been
fired (Tr. 97). Inspector Arnoldi did not immediately connect his
son's discharge with his official inspection activities (Tr. 97).
The hoist inspection at the Coeur unit was cancelled due to
a hoist malfunction at a different mine (Tr. 98).
Joe advised his father that Douchene had told him to
"rustle" every day and keep rustling and he'd get his job back
(Tr. 99).
Sometime in May Inspector Arnoldi wrote a statement (Exhibit
C4). At that point he believed ASARCO was discriminating against
another relative, Steven White (Tr. 100). This particular
incident involved an injury to White coupled with Douchene's
directive that White return to work or be terminated (Tr. 100,
101, 135).
Inspector Arnoldi claimed that Andre Douchene intimated him
in violation of the U.S. Criminal Code (Tr. 103). If the
inspector had inspected the tugger at the 34Ä277 raise 3100 level
he would have issued a citation due to the fact that there was
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only ten inches between the tugger and the railroad car (Tr. 104,
138). Joe told his father about this unsafe condition (Tr. 139).
The inspector probably didn't tell Joe to put the complaint in
writing. The inspector did not inspect it himself (Tr. 139, 140).
Inspector Arnoldi has inspected the Coeur mine a dozen times
in a three year period (Tr. 104, 105). Except for the February
1985 inspection, Carole Ward was the unit manager. Joe Arnoldi
was originally hired by ASARCO after his father had a discussion
with the manager (Tr. 105Ä108). Inspector Arnoldi did not solicit
Ward for a job for his son (Tr. 144). Ward knew Mr. Arnoldi was
an MSHA inspector because he had been there several times (Tr.
108). In 1982 or 1983 other MSHA inspectors conducted the regular
inspections at the mine (Tr. 108).
Inspector Arnoldi has reviewed MSHA's conflict of interest
policy at least annually (Tr. 124). He had not told his
supervisor that he had seven or eight family members at the Coeur
mine (Tr. 125). But he told his supervisor that he didn't feel
comfortable going there. The MSHA supervisor knew he had many
relatives working at the mine (Tr. 125, 126, 142). Inspector
Arnoldi didn't feel there was a conflict of interest to
investigate a mine where relatives work (Tr. 141, 142).
About noon on March 19, 1985 Inspector Arnoldi called Mr.
Douchene and advised him of a hoist inspection. At that time
prior notice of such an inspection was an accepted practice. The
prior notice permitted the operator to have its ropemen and
electricians available (Tr. 126, 127).
On May 15th, when he wrote his explanation seeking criminal
penalties against Andre Douchene, Inspector Arnoldi knew the
company claimed Joe had been caught sleeping. But nothing appears
in the statement to that effect (Tr. 128Ä130; Ex. C4). The
inspector's son claimed he had not been sleeping and the operator
took a contrary view (Tr. 131). In his statement Inspector
Arnoldi also wrote that he thought Douchene's statements at the
closing conference were made in jest. But he meant he hoped he
was only jesting. Since Douchene was "immediately" angry
Inspector Arnoldi didn't believe he was merely jesting (Tr. 131,
132; Ex. C4).
Inspector Arnoldi agrees that it is not a safe practice to
sleep in the raise (Tr. 138).
The witness believed that Andre Douchene carried out his
threats by terminating his son (Tr. 143).
In 1981 MSHA inspectors were passing out miner's rights
booklets at the mine (Tr. 85). The MSHA manual instructs the
inspector to notify miners of their rights and the booklet serves
that purpose (Tr. 86).
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It was Andre Douchene who ran the inspectors off the site for
distributing the rights booklet (Tr. 85, 110Ä112). No citations
were written as a result of that incident (Tr. 113). When he was
recalled as a witness Inspector Arnoldi changed his testimony and
indicated that Dave Lewis, and not Andre Douchene, was the ASARCO
manager at the time of the pamphlet incident (Tr. 365Ä366, 371).
Larry Nelson, the supervisor of the local MSHA office, in a
written memorandum, stated the MSHA pamphlets could be
distributed (Tr. 366, 367; Ex. C23).
JOE ARNOLDI is now employed as a downhole driller and he
resides in Michigan (Tr. 147, 148). In his current employment he
has received no warning slips or complaints about his job
performance. He also works overtime at his present job (Tr. 148).
The witness was employed by ASARCO from April 19, 1981 to
March 20, 1985. In the instant case he seeks reinstatement (Tr.
149). Before moving to Michigan he worked for the U.S. Forest
Service for a month and for an asphalt company for a few weeks
(Tr. 150).
In high school Joe's highest grade in English was a "D". He
also failed the course on one occasion. After quitting high
school he worked in the oil fields and elsewhere. He eventually
received a general education diploma (Tr. 151).
At ASARCO his entry level job was that of a mucker. He was
later promoted to nipper motorman (Tr. 152). He also filled in
stopes and worked with the repair crew (Tr. 152). His pay was
based on production (Tr. 153).
ASARCO maintains a warning slip procedure. A miner is
terminated if he receives three such slips in a 90 day period.
Joe has received nine warning slips (Tr. 153, 190).
On August 7, 1981 he received, deservedly, a warning slip
for carrying explosives on a battery locomotive (Tr. 154, 191).
On April 18, 1983 he received a slip for failing to follow
orders and for unsatisfactory work. He stated why he didn't
deserve this warning (Tr. 154, 230).
On April 27, 1983 he was injured on the job when struck in
the left wrist by rocks falling down the raise (Tr. 154, 155,
214, 215; Ex. C5). Joe told his supervisor, Charlie Castelli, he
wasn't going to get under the raise in these circumstances. His
supervisor then issued a warning slip for poor work (Tr. 155,
156, 191). This incident was discussed at a safety meeting on May
25, 1983 (Tr. 157; Ex. C6).
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Mr. Arnoldi suffers from allergies. His condition was diagnosed
at age 7 (Tr. 158, 159; Ex. C7). He has continued to receive
treatment while employed by ASARCO (Tr. 160, 194). He always
presented a doctor's release when he returned to work. A failure
to present a doctor's release will result in an unexcused
absence. ASARCO's health fund paid the medical bills (Tr. 161,
195, 196). When the allergies are really severe Joe did not go to
work. He believes the concern about his allergies renders it
unsafe for him to be on the job (Tr. 161, 162).
Mr. Arnoldi received two unexcused absences in the 30 day
period before August 11, 1983. At that time he was visiting his
doctor for his allergy condition (Tr. 162). The ASARCO health
plan also paid for those visits (Tr. 163). Because he had a
doctor's excuse he didn't think he should have received the
absences (Tr. 163, 226).
On October 14, 1983 he received a warning slip and a five
day suspension for allegedly sleeping on the job. Joe denied he
was sleeping. He protested to Andre Douchene on the third day.
Douchene put him back on the job the following day (Tr. 169, 170,
200). Ron Maehl's diary entry of October 14Ä83 explains the
reason for the layoff (Tr. 170; Ex. C12). This warning slip was
not deserved (Tr. 227).
Mr. Arnoldi couldn't recall if he deserved the warning slip
of May 22, 1984. But he thought it was "okay" because Andre
Douchene had said they were allowed to miss two days a month (Tr.
198, 199).
On May 22, 1984 a warning notice for hauling a chain and
motor was not deserved because he was a passenger on the motor.
However, he did not protest the notice; it only makes things
worse to complain (Tr. 199, 200).
On July 27, 1984 the witness received a warning slip for two
unexcused days off in a 30 day period. The absence was because of
allergies. He believed that warning notice was deserved (Tr. 164,
197, 227, 229).
On August 16, 1984 he received a slip for three days
unexcused absences which was partially duplicative of the prior
warning slip (Tr. 164, 197). The diary of Michael Lee explains
the August 16th warning (Tr. 164; Ex. C9). The diary indicates
that Mr. Arnoldi did not show up for work on July 20, July 27 and
August 15th (Tr. 166). He had a justifiable excuse since he was
under a doctor's care and suffering from, and being treated for,
allergies on these dates (Tr. 166, 167, 221, 229; Ex. C10).
On December 4, 1984 he received a warning notice for failing
to report for work on November 16 and December 3 but he thought
he might have been on vacation (Tr. 168, 169; Ex. C11).
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Joe's father is MSHA Inspector Jim Arnoldi, who inspected the
Coeur unit in February 1985 (Tr. 171, 172). As a result of that
inspection co-workers Magoon and Myles told Joe Arnoldi they had
been fired. Also Douchene was mad because ASARCO had been cited
for loose ground (Tr. 172, 173). Joe related this information to
his father (Tr. 173, 206). Joe was aware of his miner's rights
but Magoon and Myles were not (Tr. 205, 206).
On March 18, 1985 Joe arrived at work about 6:35 a.m. (Tr.
173). The shift starts at 7 o'clock (Tr. 174). He was nipping at
the 277 raise for Chavez and Kurst. The miners instructed him to
await their signals (Tr. 174, 175). After some preliminary work
he sat down behind the tugger. The temperature was 90 to 95
degrees and he felt a little faint. The fan had been turned off
(Tr. 175, 207).
While sitting five or six feet from the tugger Bill Arthur
and Mike Lee walked up. Lee said "caught you sleeping". Joe
didn't tell Lee that this was the second time he'd been caught
sleeping. Lee asked Joe what I had done for the weekend. [Joe had
attended a St. Patrick's Day party in Butte, Montana] (Tr. 176,
207). After talking about the weekend, Lee and Arthur went down
the raise. Lee subsequently reappeared and said he was going to
bring Joe out for sleeping (Tr. 177). Lee also indicated he was
going to talk to Douchene. Joe didn't see Douchene that morning.
About ten minutes later Lee told Joe he was temporarily
suspended. Lee also asked Joe of an address where he could
contact him (Tr. 177, 178). Two days later, on March 19th, Lee
requested that Joe come to the mine (Tr. 178). Lee then fired
him. He was given his paycheck but no vacation check. Joe
believed he was fired in retaliation for his father's MSHA
activities (Tr. 179). His termination notice read "absolutely no
rehire" (Tr. 375).
The following day Joe contacted Douchene and was told to
keep on rustling and he'd hire him back like he did Bob Elisoff.
Joe didn't tell Douchene or Lee that he wasn't sleeping on
the morning of March 18th. He believed that being aggressive
would not get his job back.
He rustled by asking Lee or Douchene every morning at the
main office for 55 or 60 days if they were hiring. He was not
reoffered a job at the Coeur unit (Tr. 180, 181, 375, 377). He
was treated fairly except towards the end (Tr. 182).
After being fired Joe filed for unemployment benefits with
the State of Idaho. In filling out the state forms he couldn't
write well and he couldn't write the reason why ASARCO
discriminated against him. The reason he wanted to put down was
that he was discriminated against because of his dad's MSHA
inspections. He also wanted to state he was not sleeping. The
papers he filed are accurate (Tr. 205; Ex. RÄA). Instead of
putting down his reasons why he was fired he put down ASARCO's
reasons, i.e., that
Page 13
~1025
he had been caught sleeping at the 277 raise (Tr. 183, 200Ä203,
230, 231; Ex. RÄA). The State of Idaho held he was ineligible for
unemployment benefits and he later told that his appeal time had
lapsed (Tr. 213, 218).
In his complaint filed with MSHA he alleged that his
complaints about the tugger caused him to be fired. The complaint
was that he couldn't operate the tugger comfortably and he could
not see over the drum to observe the skip (Tr. 184, 185). Joe had
been instructed not to operate the tugger when the train was in
the area. But he could not hear the train or see its trip lights
(Tr. 85, 186). Ninety percent of the time the swamper stayed back
at the raise to pull down the muck (Tr. 186). There was no means
of communicating with the train motorman who is 50 to 60 feet
back from the front when he is pushing the train. Joe complained
about the height of the tugger as well as its proximity to the
haulage train track. His complaints were directed to Bill Arthur
and also discussed in a safety meeting. He also told his father
that the tugger was too high and too close to the tracks. His
father said he wasn't inspecting in that area and he recommended
that Joe talk to Bill Arthur.
Arthur thought the tugger was fine. To compensate for the
height of the tugger Joe stood on a piece of timber set between
the tugger and the track. He thought this was dangerous since the
fifth wheel could hang up and derail the train (Tr. 186Ä188,
207Ä209). There were a few times when Joe was busy with the
tugger and had to jump out of the way of the train (Tr. 188).
When he was a motorman Joe complained about the condition of
the brakes and the controllers on the locomotive. He wrote up
this condition on December 21, 1982 and the following days (Tr.
189). The motors were fixed on December 28, 1982 (Tr. 189). Joe
does not claim that the 1982 incident caused him to be fired (Tr.
190).
Joe did not know what happened at the February 21, 1985
close out conference but his father told him about it and said he
should "watch his back" (Tr. 212). He learned about the
conference about the time he filed his report with MSHA's special
investigator Lopez (Tr. 212).
KIM BRADSHAW, the company's safety engineer, works with the
Coeur and Galena units. He is in charge of training and safety
(Tr. 244, 322). The unit manager and mine superintendent set
safety policy for the Coeur unit (Tr. 245).
Bradshaw attended a closeout conference on February 21,
- MSHA Inspectors Jim Arnoldi, Don Downs, and Emmett Sullivan
were present. Andre Douchene, the Coeur manager, was also present
(Tr. 247). The conference had concluded and Arnoldi said he would
be inspecting the mine; further, he said to Andre that if they
had better management they wouldn't have a problem. Andre took it
in jest, laughing and smiling. He replied "You may be
Page 14
~1026
the law but we will see who the law is around here (Tr. 248Ä252).
The further thrust of the statement was that a letter would
prevent Jim Arnoldi from inspecting the mine (Tr. 253). The
comment about the letter followed after Jim Arnoldi stated that
Downs was going to be moved and that he would be the next
inspector (Tr. 254). Bradshaw was not involved when Joe Arnoldi
was fired 26 days later (Tr. 254, 255, 331Ä336).
Bradshaw conducts and keeps minutes of his safety meetings
(Tr. 255, 325, 326). His notes would summarize any problems (Tr.
256). On October 25, 1983 miner Chavez commented that the boss
was sleeping. Bradshaw didn't distinctly remember taking the
complaint to management (Tr. 258). Nor did Bradshaw know if the
comment was investigated (Tr. 258, 259). The company policy
concerning sleeping on the job was discussed at safety meetings
(Tr. 259; 263, 264; Ex. C17). The company policy prohibits
sleeping in the mine. Punishment for sleeping could include
warning slips, time out, or being brought out of the mine (Tr.
261, 265). Bradshaw has probably told miners they would be
suspended if they were caught sleeping (Tr. 262).
Joe Arnoldi expressed concerns about safety. Particularly,
he thought a swamper should ride in the second to last car (Tr.
265). Swampers are not assigned to every haulage train in the
Coeur unit (Tr. 266).
Joe also complained about the incident in which he was
injured. The miners were instructed at the next meeting to watch
out for nippers below (Tr. 267). Joe also complained about trip
lights. The lights are on the trains at the mine (Tr. 269). At a
safety meeting on February 15, 1983 the interaction of miners and
haulage trains was discussed (Tr. 270, 271; Ex. C19).
Bradshaw has received MSHA training and he was familiar with
30 C.F.R. 57.905 concerning train movements (Tr. 272, 273).
Neither on March 18, 1985 nor at any other time did Joe
Arnoldi express any concern about the proximity of the tugger to
the train track, or about its height (Tr. 273, 328). Bradshaw
measured the distance from the back of his foot to the train
track at 19 inches. It was 30 inches from the track to the
tugger. The train extends out on both sides of the track some 8
to 12 inches (Tr. 275Ä277). Arnoldi's work station was situated
between the tugger and the train track. The tugger could only be
operated from this position. In sum, the distance between the
back of the nipper's foot and the moving train would be seven
inches (Tr. 277). Trip lights, warning bells, miners' cap lamps
are designed to warn people of the train's movements. Trains that
pass the 34Ä277 raise at the 3100 level are pushed (Tr. 278).
There were two curves, one 30 degrees and the other 40 degrees.
On the 40 degree curve Bradshaw hadn't tested it but he believed
the motorman, 47 or 48 feet back, could not see Arnoldi at his
work station (Tr. 279Ä281). A nipper at this location, if he was
looking, could see the trip light when the train was rounding the
Page 15
~1027
40 degree curve (Tr. 282, 286). If people were engaged in normal
activity they probably would not hear the train (Tr. 282, 283).
The noise level at this location, excluding the train, was
measured at 70 dBA. A nearby auxiliary fan, which operated
continually, was measured at 85 dBA. The tugger exhaust runs
about 100 dBA (Tr. 284). The noise from the tugger would override
the train noise. The bell on the train is 75 dBA (Tr. 285). In
sum, the noise from the tugger and the fan would prevent a miner
from hearing the train. Accordingly, neither the bell nor the
light were effective in warning people with certainty that the
train was coming at the 34Ä277 raise, 3100 level (Tr. 286). The
company has never been cited for the tugger nor for a train
coming close to a nipper (Tr. 329, 341).
Joe should be able to see the illumination of a cap light.
While the motorman wears the same cap light as any other miner
Joe would probably not be able to tell if it was a train or
another miner approaching (Tr. 286Ä289). The motorman should be
able to see the illumination from Joe's light (Tr. 289). The
intense part of the head light is directed ahead but there is
also illumination to the side (Tr. 291).
ASARCO has safety procedures for haulage trains but no
specific rules relating to Joe's work station (Tr. 291, 292). The
safety manual states that the motorman must stop until everyone
is in the clear (Tr. 292). Bradshaw had not heard any complaints
concerning the train at Joe's work station (Tr. 292, 293). There
are "slow down" signs at air doors but no such signs on the
curves at 34Ä277 raise, 3100 level (Tr. 293). The safety meetings
never discussed the hazards at 34Ä277 raise, 3100 level (Tr. 294,
295). The safety manual does not discuss any hazards at that
location nor is there any company policy or speed restriction
relating to the location (Tr. 295, 299). Bradshaw had never
instructed any motormen to get out and be sure that no miner was
operating the tugger at the 34Ä277/3100 location before moving a
train past that area (Tr. 297). Nor was that discussed at the
safety meetings. There are some areas in the mine where you would
not want to operate the train at full speed. The safety manual
stresses that the motor must be under control at all times (Tr.
298). The motorman knows where to slow down (Tr. 299).
Trains infrequently derail at the Coeur unit. Such
derailments are usually caused by loose track or muck (Tr. 300).
ASARCO does not have its own heat standards in the mine. The
ventilation system, generated by fans, automatically runs at all
times (Tr. 302).
In 1984 the Coeur mine accident/incident rate was about 1.4
(Tr. 304). MSHA usually investigates any nonfatal accidents at
the mine (Tr. 306, 307).
Page 16
~1028
When Joe started in 1981 he was instructed of his rights under
the Mine Act (Tr. 308, 309). But he was not given a copy of the
MSHA booklet because there is no such legal requirement (Tr.
309). Management did not want the Miner's Rights booklet
distributed for that reason (Tr. 309, 310). After 1981 Bradshaw
did not distribute the booklets as part of the miners'
orientation (Tr. 310). In teaching the newly hired miners
Bradshaw reviews a typed copy of the booklet (Tr. 311).
On March 18, 1985 Andre Douchene had been elected as the
miners' representative by two ballots. There are 150 miners at
the mine (Tr. 314).
On December 8, 1981 MSHA inspectors Alvin Fischer and Donald
L. Myers handed out MSHA booklets (Tr. 317, 318). One of the
booklets were turned over to the then unit manager, David L.
Lewis (Tr. 318). After an investigation it was concluded that it
was not MSHA's responsibility to distribute the pamphlets. Lewis
then wrote to Russell, the MSHA subdistrict manager for the Coeur
mines (Tr. 318, 319). A conversation followed with the inspectors
and Lewis directed them to stop such distribution (Tr. 319; Ex.
21). On February 24, 1982 the then Assistant Secretary of Labor
for Mine Safety and Health confirmed that the practice of
distributing such pamphlets was "not representative of any
official MSHA policy" (Tr. 347, 348; Ex. U).
Respondent's Evidence
MSHA Inspector Donald F. Downs, Mike Lee and Andre Douchene
testified for respondent.
DONALD F. DOWNS, an MSHA inspector for over 12 years, is
assigned to the Coeur d'Alene office (Tr. 383).
He first began inspecting ASARCO in 1984. There have been 12
quarterly inspections (Tr. 385). He couldn't recall definitely if
he inspected the tugger at the 277 raise, 3100 level (Tr. 386,
413). Downs has talked to Joe at his worksite but Joe has never
expressed any concerns about the tugger (Tr. 387, 388). No
citation was ever issued regarding the tugger (Tr. 388, 412; Ex.
C27). Inspector Jim Arnoldi, who accompanied the witness in
February 1985, never suggested a citation should be issued
concerning the tugger (Tr. 388). Generally, at a close out
conference, the parties review the just concluded inspection. At
this conference, on February 21, 1985 Jim Arnoldi announced that
he would be the next inspector. Downs denied that. Douchene said
he wasn't going to have him (Arnoldi) there because he had too
many relatives and he had a conflict of interest (Tr. 390). He'd
just write a letter and get rid of him (Tr. 391, 391). As they
walked out the door Arnoldi said to Douchene that "If you was a
good manager, you wouldn't have this problem". Douchene also
stated to both inspectors that "You may be the law but we'll see
who the law is around here". Downs replied that they were
Page 17
~1029
"both the law" (Tr. 390, 414). There could have been some
profanity but that is quite common at a close-out conference (Tr.
392).
Downs did not consider the statements made by either man at
the close-out conference to be threats (Tr. 394). Jim Arnoldi
never took it as a threat (Tr. 394).
Hecla Mining Company had at one time written to Downs'
subdistrict manager complaining he was "coming down too hard"
(Tr. 393, 394, 440).
Downs denies ridiculing Jim Arnoldi in front of ASARCO
employees; nor had he ever done anything to hurt his feelings
(Tr. 394, 395).
In the inspector's opinion it is not a safe practice for a
nipper to be asleep on the job (Tr. 96). Inspector Downs observed
Joe Arnoldi on one occasion when he thought he was asleep (Tr.
396, 397). He never reported this incident to his supervisors, or
anyone, nor did he enter it in his notes.
Don Myers, another MSHA inspector, told Downs that he had
observed Joe sleeping during working hours (Tr. 397, 432, 433}.
He learned this before Joe was fired (Tr. 398).
In cross examination, Downs agreed he had refused to answer
interrogatories filed by complainant in the case (Tr. 399). But
complainant's counsel never sought to talk to him (Tr. 437). The
Solicitor advised Downs that he could talk to ASARCO's attorney
and testify as to any factual matters (Tr. 400, 432; Ex. C25).
Downs considered Andre Douchene a business type friend
rather than a personal friend (Tr. 434). Around May 1985 Downs
gave a written statement to MSHA's special investigator Lopez
(Tr. 405).
In February 1985 Downs was the lead inspector at the ASARCO
mine. The second inspector, as compared with the lead inspector,
could write a citation if he saw a violative condition. Downs
could not recall inspecting a mine with Jim Arnoldi before
February 1985 (Tr. 410). At that inspection the two inspectors
were together for only one week of the 12 week inspection (Tr.
412).
Andre Douchene may have turned red and gotten angry with Jim
Arnoldi when he said the citation was deserved (Tr. 418). Downs
didn't put Douchene's statements in his official report. He
didn't think either party meant them (Tr. 418).
Downs didn't know if Douchene ever wrote a letter about Jim
Arnoldi. Downs believed that mine managers can influence the
assignment of mine inspectors (Tr. 420). Downs has no family
working at the Coeur unit (Tr. 421).
Page 18
~1030
Jim Arnoldi told Downs that Joe had been fired (Tr. 422). He
didn't suggest at that time that Douchene was carrying out his
threats although it occurred 26 days later (Tr. 422}.
In March 1985 the MSHA hoist inspection team consisted of
Jim Arnoldi, Moose Guttramsen and Arnold Peterson (Tr. 423, 424).
Downs was aware that Jim Arnoldi called Andre Douchene to
schedule a hoist inspection on March 19, 1985 (Tr. 425, 462).
Downs was also aware that Joe got a phone call to come up to the
mine (Tr. 426).
Witness Downs didn't believe that MSHA's manual suggested
that it would be a conflict of interest to inspect a mine where
an inspector's relatives worked. Nor was there a conflict to
inspect a mine owned by a company by whom the inspector had been
formerly employed (Tr. 430).
The Coeur unit has had two fatalities: one occurred when the
mine was under construction (Tr. 439). The witness discussed the
unit in relation to the national average (Tr. 439, 440).
MIKE LEE, 30 years of age and experienced in mining, served
as ASARCO's mine superintendent (Tr. 442, 443, 499, 500). His
duties include safety and production (Tr. 444). He usually
averages five hours underground each day. There are approximately
150 employees at the Coeur unit (Tr. 445). The mine has 17 stopes
plus three development crews and 40 contract miners.
When Lee came to the Coeur mine Joe Arnoldi was swamping,
motoring and nipping. Occasionally he did some fill-in mining.
Lee would see Joe about once a week when inspecting the work
areas (Tr. 446). A nipper would probably run the tugger all day
long (Tr. 448). If the nipper is sleeping the stope miners are
not getting the service they need (Tr. 448, 449).
Employees at ASARCO receive warning slips for absenteeism,
breaking safety rules underground, and unsatisfactory work (Tr.
449). The first such warning is usually verbal; warning slips
follow. Whether a worker is terminated depends on his offense
(Tr. 450).
Lee has personally disciplined Joe with warnings and notices
about his job performance (Tr. 451).
On August 16, 1984 Joe was given a warning slip and two days
off for excessive absenteeism (Tr. 451, Ex. F, G, H). He was
warned to straighten up his absenteeism problem (Tr. 452). Joe's
work performance was "pretty poor" (Tr. 453, 454). Fellow
employees also complained and stated they didn't want to work
with him.
Joe did not bring his allergy condition to Lee's attention
(Tr. 454). Company policy requires a worker to report that he
will be off prior to the start of any shift. When returning he
Page 19
~1031
should have a doctor's release (Tr. 454, 455). Lee doesn't look
through employees' medical records (Tr. 456). The absenteeism
policy is posted as well as discussed with the employees (Tr.
456). If the worker misses two shifts within 30 days he would
receive a warning notice (Tr. 457).
On March 18, 1985, in the course of their regular
inspection, Lee and Bill Arthur went to the top of the 277 raise
on the 3100 level (Tr. 458, 459). Lee was in the lead and he had
to walk around a motor parked on the station side. As he moved
past the drift post he observed Joe Arnoldi leaning back on holey
boards stalked in the form of a chair. His closed eyes, deep
breathing, open mouth and perfectly still position caused Lee to
conclude that Joe was sleeping. Lee went within a couple of feet
and he woke him up by flashing his light in his eyes. Joe sat up
with a start (Tr. 459, 460, 501, 502). Lee said something like
"It's a long time from lunch time to be sleeping." Joe replied
"Yeah, I know that" (Tr. 460). Lee then told Joe not to do
anything while he checked the crew below. He would then return to
talk. Lee didn't tell the miners about Joe because he didn't
think it was their concern. At the time they were pulling a sand
line and that didn't require any materials (Tr. 462).
When they climbed back out Lee told Arthur he had caught Joe
sleeping. He asked Arthur if he was justified in "taking him
out." Arthur concurred; Joe would not necessarily be fired but he
could be in very serious trouble (Tr. 463, 464). As Lee and Joe
discussed the matter Joe acknowledged that he wasn't supposed to
be sleeping. Further, he had been caught sleeping before. Lee
then told Joe he had no choice except to take him out of the
mine.
Lee then escorted Joe to his office (Tr. 464, 465, 467). Lee
had Joe sit in his office while he talked to Andre Douchene (Tr.
465). Lee and Douchene discussed Joe's work record, discipline,
efforts at rehabilitation, etc. Lee strongly recommended that Joe
be terminated. Douchene disagreed; he thought it best to put him
on indefinite suspension and mull it over to make sure they were
making the right decision (Tr. 465). Lee then told Joe he was
suspended. He was also told he may or may not get his job back.
Lee also indicated he'd contact him so he wouldn't have to come
to the mine every day. Joe said to contact him through his father
(Tr. 466Ä467).
Lee's notes reflect that he didn't care if Joe slept on his
lunch break (11:00 a.m. to 11:30 a.m.) but he was sleeping at
7:45 a.m. (Tr. 466, 467). A lot of miners had complained that Joe
was always sleeping (Tr. 557, 558).
At the end of the shift Lee and Douchene again discussed the
situation and decided they'd sleep on it (Tr. 468, 470).
Page 20
~1032
On October 14, 1983 Ron Maehl was the Coeur mine superintendent.
His diary on that date reflects that Joe was suspended five days
for sleeping underground (Tr. 468, 469, 582, 583; Ex. I). The
diary also indicated that on August 11, 1983 Joe was advised that
all of his grace periods were over (Tr. 469, 470; Ex. J).
The following day, March 19 at mid-morning, Lee and Douchene
discussed Joe's past record and related matters. Douchene decided
he should be terminated (Tr. 470, 471). The decision to fire him
had nothing to do with the fact that his father was an MSHA
inspector (Tr. 472).
Lee was not aware of Joe's contention that some of the
warning slips he had received were not deserved (Tr. 471). On
Tuesday afternoon Lee contacted Inspector Arnoldi and asked him
to have Joe come into the office. Inspector Arnoldi replied "I'm
going to inspect your XXXX hoist today" (Tr. 472). The inspection
did not come about. Joe appeared at the mine on the morning of
the 20th (Tr. 473). At that time Lee and Joe reviewed the
situation. Lee then advised him he was terminated immediately. At
the conference Joe did not claim any of the work notices were not
justified. Three or four times after that he came up rustling
(Tr. 474). Several times he talked to Lee and other times with
Douchene (Tr. 475). Lee filled out a termination statement for
Joe writing on it "absolutely no rehire" (Tr. 476; Ex. C24). The
notation was Lee's personal feelings because Joe was such a poor
worker. Lee didn't tell Joe to rustle but what he wrote is not
inconsistent with a suggestion to rustle because they are obliged
to state that the same opportunities exist for everyone (Tr.
477). Lee has made similar notations on five to ten termination
notices (Tr. 477). The company has not rehired anyone when such a
notation was made.
Lee knew the company contested Joe's claim for unemployment
compensation benefits filed with the State of Idaho (Tr. 478).
Lee didn't think the company would rehire Joe in view of that
claim (Tr. 479).
With his memory refreshed by hearing prior witnesses Lee
restated the events at the close-out conference of February 21st
(Tr. 479, 480, 491, 492Ä494, 498). [The witness, in his
deposition, stated he did not remember the details at the
conference (Tr. 491Ä496) ]. However, he testified that at the
conference Inspector Arnoldi said he was going to inspect the
plant and shut it down. Douchene said Arnoldi had too much family
working there. Lee considered this a typical close-out
conference. He thought the statements were made in jest; neither
man was threatening the other (Tr. 482).
The inspection in February 1985 and the close-out conference
of February 21 were not factors in the decision to terminate Joe
Arnoldi (Tr. 482).
Page 21
~1033
Lee had never discussed with Joe the height of the tugger or its
proximately to the tracks. He could not remember Joe making any
complaint at the safety meetings (Tr. 483).
It is unsafe for a nipper to sleep on the job (Tr. 484,
485).
At ASARCO the shift boss has authority to give a worker two
days off (Tr. 486). Any leave in excess of two days had to be
approved by Lee or Douchene (Tr. 486).
Joe would not necessarily be advised when the trains were to
operate past his work station (Tr. 504).
The Coeur policy guide states the company absenteeism policy
(Tr. 508; Ex. C29). The policy requires that an absence be
excused (Tr. 509Ä513).
Lee's diary entry of December 13, 1984 reflects an incident
involving safety. The individuals involved were Arthur Lee and
Buss Lomas (Tr. 523, 524; Ex. C30).
In the absence of Douchene, Lee could probably fire someone
at the mine. If Douchene was gone he would check with Fred Owsley
(Tr. 536).
On March 22, 1985 Lee wrote a draft of ASARCO's response to
Joe's application for unemployment benefits (Tr. 538, 539; Ex.
C32). The report states that Bill Arthur as well as Lee observed
Joe sleeping at the top of the 277 raise (Tr. 539). Apparently
Arthur had not observed Joe sleeping (Tr. 540). Lee had not
checked the records of other employees to see how previous
sleeping incidents had been handled (Tr. 541).
On October 9, 1983 Coeur employee Paul Stull was given a
warning slip for sleeping (Tr. 541; Ex. C33). R.J. Maehl was the
superintendent at that time (Tr. 542). The slip said he had
already been warned once (Tr. 543; Ex. C34). Stull had been
warned verbally by Maehl, Douchene, Korst (general mine foreman)
and Charlie Castell (shift boss) on separate occasions previously
(Tr. 543, 544). It was explained to Stull that the next warning
would mean termination (Tr. 544).
Lee carefully tracks absenteeism at the Coeur unit (Tr.
545). Stull worked 21 weeks at the mine but his record does not
indicate any disciplinary action (Tr. 547). In 21 weeks the area
supervisors found it necessary to warn Stull about sleeping four
times and Ron Maehl caught him sleeping a fifth time (Tr. 547).
The termination slip for Stull says Maehl would want him
re-employed. The reason he left was to attend school (Tr. 548);
Ex. C36). Ron Maehl may have just suspected Stull was sleeping
(Tr. 549). It is not fair to compare Paul Stull's record with Joe
Arnoldi's record. Arnoldi's record is worse (Tr. 587).
Joe was given a warning slip on April 18, 1983 for failing
to follow orders and unsatisfactory work (Tr. 551). This was
Page 22
~1034
given to Joe for his failure to follow an order to work in an
unsafe place (Tr. 551). An additional warning slip was issued for
carrying explosives on top of a battery locomotive (Tr. 551). The
hauling of a chain saw and motor was also a safety rule violation
(Tr. 552).
Joe was issued only one unsatisfactory work and failure to
follow orders during this time at the Coeur. However, Lee had
general knowledge that Joe was not a good worker (Tr. 552, 553).
Joe Arnoldi was treated differently than other employees because
he was given a second chance (Tr. 587).
Corey Weikel has not been fired by ASARCO although he had a
number of warning slips from January 1983 to the end of March
1985 (Tr. 558, 559). On August 11, 1983 Corey, who eventually
turned into a good hand, was suspended for five days. He was also
told that if he abused the company policy he would be terminated
(Tr. 559, 560, 571). Two weeks later he was back on the job.
Maehl again talked to him about his overall work attitude,
attendance record and other matters.
Corey received a warning slip and two days off on June 22,
1983 for absenteeism (Tr. 561; Ex. C38).
On August 11, 1983 Corey received a warning slip for tearing
out an air door (Tr. 589, 652).
It is not valid to compare Corey's work record with Joe
Arnoldi's record. Corey was a good hard worker (Tr. 589).
On June 22, 1983 Ron Maehl's diary reflects he came on Randy
Arthur on a bedboard and in a bewildered state. When asked what
he was doing he replied he was "just sitting". Maehl said Randy
Arthur had no "gippo" attitude, suggesting that he lacked get up
and go (Tr. 563, 564). The diary entry further states that he
cannot or will not work unless prompted (Tr. 564).
On August 10, 1983 Randy Arthur received a warning slip for
failing to follow orders (Tr. 564).
On December 23, 1983 another warning slip was issued to
Randy Arthur for riding a timber truck (Tr. 564, 565). Arthur was
not terminated (Tr. 565). At one point Ron Maehl removed Arthur
from his contract job. This move would reduce his wages from $150
to $250 a day to $95 to $100 a day. Somewhere in 1984 he bid back
into the stope job (Tr. 566). If Lee had caught Randy Arthur
sleeping, coupled with everything else, he would have fired him
(Tr. 566). Arthur had a serious diabetic problem (Tr. 567). It is
not valid to compare Joe Arnoldi's record to Randy Arthur (Tr.
590).
Tom Benson received a warning slip for being absent on July
22, 1983. On August 31, 1983, Maehl's diary states that Benson
had a "sluggish attitude" at work. On October 31, 1983 Maehl
Page 23
~1035
told Benson he would be fired if his work performance didn't
improve (Tr. 568). On November 22, 1983 Lee issued a verbal
warning to Benson for tardiness (Tr. 568, 569). A discussion
about tardiness followed on December 27, 1983 because Benson's
conduct of arriving "at the whistle" was barely acceptable. On
February 8, 1984 Lee gave him an unexcused absence. He had not
called in (Tr. 569). On September 26, 1984 Benson was promoted to
stope miner (Tr. 569, 570). Benson eventually became a pretty
good worker (Tr. 570, 590).
Ron Maehl threatened employees a lot (Tr. 570). In Lee's
view sleeping is a complete and blatant disregard of the
employer. It further shows a total lack of responsibility on the
part of the employee (Tr. 571).
When Ron Maehl caught an employee sleeping he would sign off
on a termination slip indicating that the man could be a rehired
(Tr. 573).
James Leischner received four warning slips in one year. On
January 19, 1983 he also received a two day suspension for
absenteeism. On March 21, 1983 a warning slip was issued for
leaving powder and primers in a raise. On July 14, 1983 he
received a warning slip for hauling explosives on a motor (Tr.
574). Following this, on December 30, 1983 there was a warning
slip for hoisting powder and primers (Tr. 574, 575). Leischner is
still working there. The company does not have a set policy that
a certain number of warning slips mandates termination (Tr. 575).
Lee's diary of May 30, 1985 mentions Joy Neal and L. Lyle
(Tr. 576). Lee had observed Joy sitting on the station smoking a
cigarette. She was told she was paid to work, not sit (Tr. 576).
She later quit working at the mine (Tr. 577).
For the period Commission Judge Kennedy ruled as relevant
(January 1, 1983 to March 31, 1985) ASARCO issued 94 warning
slips (Tr. 578). During the same period Delmar Howard, Larry
Nellsch, Earl Crabtree and Bob Elisoff, were fired by ASARCO.
Elisoff was later rehired (Tr. 578, 579).
Delmar Howard and Larry Nellsch were in jail and unavailable
for work (Tr. 580; Ex. P, Q). Both of these men received fewer
warning notices than Arnoldi. Both were terminated for
absenteeism. Lee would rehire them (Tr. 593Ä596). The witness
discusseed Larry Nellsch's warning slips (Tr. 594, 595).
Earl Crabtree was fired for absenteeism. Bob Elisoff was
fired for various reasons (Tr. 580). Elisoff rustled for a long
period of time and was rehired (Tr. 581).
Exhibit CÄ38 is a fair representation of the warning slips
that are generally issued for the reasons stated (Tr. 582).
Page 24
~1036
It is important, for various reasons, for the company to know
ahead of time whether a worker will be absent from work (Tr.
583).
Occasionally a warning slip is not signed by the issuing
supervisor; nor is it necessary for the employee to sign the slip
(Tr. 583, 584).
In 1981, at the Galena mine, Lee fired Jim Reed for
sleeping; in addition, he fired two workers in July 1986 for the
same offense. None of the three workers had prior warning notices
(Tr. 587).
Even though an "absolutely no rehire" notation is written on
a termination slip a man can be rehired if he can show the
company that he has changed (Tr. 591).
Workers were hired at the Coeur unit after Joe Arnoldi was
terminated (Tr. 599).
ANDRE DOUCHENE is currently employed by Round Mountain Gold
Corporation. Previously he worked for ASARCO starting as an
engineer and attaining the position of manager of the Coeur unit
(Tr. 602). As the unit manager he is responsible for the entire
mine. He reported to Fred Owsley, general manager for the
division (Tr. 603). Douchene has the final authority in hiring
and firing employees (Tr. 603, 604). He did not normally become
involved in disciplining unless an employee claimed he was
treated unfairly (Tr. 604).
Joe Arnoldi was employed at the Coeur before Douchene
arrived. At some point Douchene learned that Joe's father was an
MSHA inspector (Tr. 604, 605). Inspector Arnoldi abated some
citations but he was principally the hoist inspector until
February 1985. At that time he became as part of the inspection
team (Tr. 605).
Inspector Arnoldi had not written a citation while Douchene
was at the Coeur. MSHA inspected the mine on a quarterly basis.
Douchene would see Joe about three days out of each week. Joe's
duties as a nipper included supplying the miners in the stope
with materials. Nippers are there for efficiency as well as
safety (Tr. 606, 607, 642). Joe and Douchene never discussed the
tugger nor did Joe make any safety complaints about the tugger.
Other workers also operated the tugger at the 277 raise, 3100
level (Tr. 607, 609). However, Joe did complain and he was upset
about an incident when he was hit on the wrist when a rock came
down the raise. The incident was brought up at a safety meeting
and workers were warned about letting material fall down the
shaft (Tr. 608). Douchene attends about half of the six separate
monthly safety meetings. Except for the one instance at no time
did he hear Joe express any safety concerns (Tr. 609). Joe was
not a member of the safety committee.
Page 25
~1037
Douchene was the elected miners' representative at the Coeur
unit. He was concerned this could be a conflict of interest but
no conflict ever arose. If a conflict had occurred Douchene would
have stepped down as the miners' representative (Tr. 610, 641,
642). The miners could always vote him out of the position (Tr.
611). He was never really comfortable with such an appearance of
impropriety (Tr. 652, 656). On one occasion as the miner's
representative Douchene signed a variance document concerning a
manway opening and raise (Tr. 652, 653).
Douchene recalled that Lee came into the office and said
he'd caught Joe sleeping underground (Tr. 611). This was within
an hour after the crew had gone underground (Tr. 612). Douchene
didn't talk to Joe that morning (in his deposition he stated
otherwise).
Lee and Douchene discussed Joe's past record for a minute or
two (Tr. 612, 668). Both men knew Joe had received a lot of
warning slips and had been disciplined for sleeping. Joe was then
suspended without pay pending further investigation. Lee and
Douchene discussed Joe later that day, after Douchene had
obtained his file folder (Tr. 613, 673, 674). No decision was
made at that time. The following day Lee and Douchene went over
Joe's record. They decided they had done all they could to try to
get Joe to become a good employee. He was discharged (Tr. 615).
Specifically they considered the fact that he'd been caught
sleeping twice, his past record, and his absenteeism. Apparently
their talks had not "sunk in" (Tr. 615).
Concerning the first sleeping incident Ron Maehl had wanted
to discharge Joe but Douchene refused because he hadn't brought
Joe out from underground. Ron gave him five days off. Later that
week Joe returned and stated he'd learned his lesson. He also
objected to the way they woke him up. Apparently Ron had pitched
a small pebble at his chest. Douchene agreed the five day
suspension was too severe so he let him come back the following
day. But the three days of discipline stood (Tr. 616).
About four or five days after he was fired in March 1985 Joe
came back and said he thought he'd learned his lesson. Douchene
disagreed. He further denied that they had blackballed him (Tr.
617, 618). Joe asked if he could rustle and Douchene replied
affirmatively. There were three or four meetings. Joe would ask
if a job was available and Douchene would state there was none.
If Joe had convinced Douchene that he had in fact changed then he
would have rehired him despite the "no rehire" notation on the
termination notice (Tr. 618, 619). There was no further
conversation with Joe as to why he was terminated (Tr. 619).
Joe never advised Douchene that his prior warning notices
were not justified (Tr. 619).
Douchene participated in the close-out conference in
February 1985 but not the inspection. Three citations were
dis
Page 26
~1038
cussed at the conference. One loose ground citation was designed
as S & S (Tr. 620). The citation involved Magoon and Myles (Tr.
621). The previous day Douchene had observed the slab and he told
the two men to bar it down. When the citation followed Douchene
called the men into Lee's office and asked them if they knew the
nature of insubordination. Discussion followed and Myles
explained that Bill Arthur had told them that it wasn't necessary
to further bar down the slab (Tr. 621). Subsequently, Douchene
told Arthur that he (Arthur) was wrong about the slab.
Douchene frequently argued about citations at the close-out
conferences (Tr. 622). After the February 1985 conference was
over Douchene asked Downs who was to be the new inspector. Jim
Arnoldi said he was to be the new inspector. Douchene didn't take
him seriously. Douchene replied, with profanity, that he had a
lot of family up there and would be a conflict of interest for
him to be there (Tr. 623, 624). It's possible Douchene could have
said something like "You may be the law, but we'll see who the
law is around here" (Tr. 659). Douchene mentioned writing a
letter. If Arnoldi had become inspector he would have talked to
Larry Weberg (Arnoldi's supervisor) about it (Tr. 624, 659). He
didn't remember the exact sentence but he agreed the gist was
"You've got too much family working here to XXXX around too much"
(Tr. 659, 660). By writing a letter Douchene meant that the
company could file an official complaint. He did not then intend
to do that.
As they were going out the door Inspector Arnoldi made a
statement about poor management and the company wouldn't have to
worry about safety inspectors if it had better management.
Douchene did not take anything Arnoldi said as a threat (Tr.
625).
Douchene was probably grinning when he made the statements.
Jim Arnoldi was also grinning; this was his typical badgering and
the give and take at a close-out conference (Tr. 627).
Inspector Arnoldi has eight to ten relatives at the Coeur,
about ten percent of the work force (Tr. 626). None of the
Arnoldi relatives at the Coeur unit are on the management level
(Tr. 709).
When the decision to terminate Joe was made a month later,
the close-out conference was not a factor. Douchene and Lee, in
deciding to terminate Joe, did not discuss the fact that his
father was an MSHA inspector (Tr. 627).
On March 19, 1985, Inspector Arnoldi was the only MSHA hoist
inspector. On that day he told Douchene that he was coming to
inspect the hoist and "straighten him out". The decision had
already been made to terminate Joe but his father was not told
about it (Tr. 628, 667). In deciding to terminate Joe, Douchene
did not look at anyone else's record and such a comparison would
not be valid (Tr. 629). Joe was the only one caught sleeping
twice. Douchene and Lee had talked to Joe and tried to get him to
become a good employee (Tr. 630).
Page 27
~1039
Paul Stull was a temporary employee hired by Fred Owsley (Tr.
631). Douchene didn't catch him sleeping nor did he specifically
warn him about sleeping (Tr. 632, 633; Ex. C34).
It is not valid to compare Joe Arnoldi with Paul Stull
because Joe was a permanent employee. Stull didn't make a bed,
lay down and go to sleep (Tr. 633).
Exhibit C3 sets forth MSHA's conflict of interest standards.
In Douchene's opinion there was a conflict of interest because of
Inspector Jim Arnoldi's family at the mine (Tr. 634, 639, 644).
He could be influenced in either direction, either too harsh or
overlooking matters. Joe Arnoldi was hired by Carole Ward at his
father's request (Tr. 635, 644, 645, 648). Jim Arnoldi came to
the Coeur unit quite a bit unofficially. At times he asked about
Joe and inquired why he hadn't been put to mining (Tr. 635).
Douchene indicated Joe didn't have a good enough work record (Tr.
635, 636).
Douchene was familar with the contest procedures. A lot of
Inspector Downs' citations were justified (Tr. 643).
About two weeks after the February 1985 inspection Larry
Weberg, Jim Arnoldi's supervisor, came to the Coeur. When asked
if he had a problem with Jim Arnoldi inspecting the mine Douchene
indicated he had a lot of family there (Tr. 650, 657). Douchene
did not write a letter to MSHA (Tr. 658).
In 1984 the Coeur unit reached a high of 11 citations (Tr.
664).
Douchene has never fired anyone "on the spot" without due
consideration (Tr. 678).
When he spoke to Inspector Arnoldi on March 19 he did not
mention that they were considering terminating Joe (Tr. 678,
679).
The decision to terminate Joe was made before Inspector
Arnoldi called to schedule the hoist inspection (Tr. 679). The
decision had been made the morning of the 19th and the paper work
was already in process (Tr. 680). It is not company policy to
notify relatives of an employee's position with the company (Tr.
680).
There were four additional hourly employees terminated
between January 1, 1983 and March 31, 1985 (Tr. 683, 684). Larry
Nellsch and Delmar Howard were terminated because they were
absent from work (Tr. 684). Bob Elisoff and Earl Crabtree were
terminated for excessive absenteeism (Tr. 685; Ex. C42). During
the relevant period no employee was fired except for absenteeism.
Each individual is handled as an individual (Tr. 686). Crabtree
started with ASARCO in 1967. He was fired. He was again employed
at the Galena mine from April 23, 1969 to August 21,
Page 28
~1040
1973 (Tr. 689, 690). He was again fired. Subsequently, he was
hired at the Coeur on August 7, 1984 and fired in October 1984.
Crabtree received ten slips for absenteeism (Tr. 690). Joe
Arnoldi did not have as many slips for absences as did Crabtree
(Tr. 691). The company has a printed policy concerning absences
(Tr. 692; Ex. C29). Crabtree was discharged for four unexcused
absences in a 60 day period (Tr. 694). The last sleeping incident
involving Joe Arnoldi was "the straw that broke the camel's back"
so far as Joe's discharge was concerned (Tr. 695).
Elisoff was fired on April 7, 1983 by Ron Maehl and Buss
Lomas (Tr. 697). He was rehired when he convinced Douchene that
he had changed. He rustled every day for maybe two months (Tr.
698, 699). After he was rehired Elisoff received some warning
slips, including one for unsatisfactory work and one for
excessive absenteeism (Tr. 702, 703).
Elisoff is still working at the Coeur (Tr. 703).
The decision to terminate Joe was based on his work record
and the whole business (Tr. 704). During the relevant period 22
employees other than Joe received warning slips for
unsatisfactory work, failure to follow orders, and non-safety
related conduct. The 22 remain employed by ASARCO (Tr. 704). Paul
Stull, the other employee allegedly caught sleeping, did not
receive disciplinary days off and was not terminated (Tr. 705).
Douchene wasn't sure if Stull was sleeping or not but he warned
him for sitting down on the job (Tr. 705).
The disciplinary system at Coeur includes verbal and written
warnings (Tr. 706). The lowest level is a verbal warning and the
highest level is termination (Tr. 707). Douchene didn't know if
Joe rustled every day (Tr. 700). After March 20, 1985 Joe told
Douchene that he wanted his job back (Tr. 701). Douchene was
never convinced that Joe was serious about getting his job back
(Tr. 702).
Evaluation of the Evidence
In view of the Commission's rulings concerning section
105(c) it is necessary to initially determine whether complainant
was engaged in a protected activity and whether respondent took
adverse action against him for such activity.
It is clear that certain activities in which complainant
engaged were protected under the Act. He complained about the
positioning of the tugger and its proximity to the train track.
However, there is no evidence that respondent took any adverse
action for such complaints. MSHA Inspector Jim Arnoldi never
inspected the tugger. He merely told Joe to discuss it with Bill
Arthur. In turn, Arthur did not think it was a problem. MSHA
Inspector Downs inspected complainant's work place but no
complaints were made to him about the tugger.
Page 29
~1041
The complaints about the position of the swamper on the train and
the trip lights were protected activities but again no adverse
action was taken by the company. His safety complaints when he
was struck by rocks falling down the raise were protected. But
this occurred April 27, 1983, almost two years before he was
discharged. No adverse action resulted from that incident and, in
fact, it was discussed at a safety meeting and the miners were
instructed to avoid such hazards.
The pivotal issue focuses on whether complainant was
sleeping on March 18, 1985. A conflict in the evidence exists on
this point.
On that particular date Lee and Arthur were on their rounds.
Lee, who was in the lead, approached complainant and saw him
leaning on a stack of boards. His eyes were closed and he was
breathing deeply with his mouth open. He was perfectly still. Lee
woke him. Complainant did not deny that he was sleeping. In fact,
complainant himself concedes that he didn't tell Lee or Douchene
that he wasn't sleeping.
Subsequently, on March 21, complainant filed for
unemployment benefits with the State of Idaho. In his printing on
the form he related the events of March 18 stating in part that
he was "waiting fore (sic) my crew to start work I fell asleep
olny (sic) for five min (sic) and . . . Mike Lee woke me up"
(Exhibit RA).
At the hearing complainant seeks to explain the State of
Idaho statement. He states he couldn't write well. He wanted to
state on the form that he was not sleeping. He also wanted to put
down that he was discriminated against because of his father's
MSHA inspections. Instead, he put down respondent's reasons why
he was fired (Tr. 183, 200Ä203; Ex. RA).
Contrary to complainant's assertions I conclude that the
statements he made to the State of Idaho were accurate and not
false, as he himself conceded at the hearing (Tr. 231, 233).
His claim that he lacks writing skills is not persuasive. A
review of the hand printed exhibit (Ex. RA), in my view,
accurately set forth complainant's position. Although there are
some spelling errors in the text the expression is clear and
reasonably articulate.
Sleeping is not a protected activity; accordingly, it
follows that respondent did not discriminate against complainant.
If complainant had established that he was terminated in
part because of protected activity, I would nevertheless conclude
that respondent was motivated by complainant's unprotected
activity and would have taken the adverse action for such
unprotected activities alone, i.e., for twice falling asleep on
the job. Therefore, I conclude that complainant has not
established that respondent discharged or otherwise discriminated
against him in violation of section 105(c) of the Act.
Page 30
~1042
Arnoldi's post-trial brief asserts that he has established his
prima facie case. He particularly relies on the fact that a miner
is entitled to have federal mine inspectors conduct their
inspection free of any retaliation, citing Mackey v.
Consolidation Coal Company, 7 FMSHRC 977, 978 (1985).
Specifically complainant refers to the close-out conference of
February 21, 1985. At the conference it is essentially
uncontroverted that Andre Douchene, the unit manager, made the
statements set forth in the evidence. However, I find from the
credible evidence that some profanity as well as "give and take"
regularly occurs at the close-out conferences at respondent's
mine. Further, Douchene didn't take Jim Arnoldi's statements as a
threat (Tr. 625, 627). Inspector Downs did not consider any of
the statments to be threats (Tr. 394). Inspector Arnoldi's
written statement of May 15th indicates that he also thought
Douchene's statements were made in jest (Tr. 131, 132; Ex. C4).
Mike Lee likewise thought the statements were made in jest (Tr.
482). Kim Bradshaw likewise concurs in this view (Tr. 254).
The evaluation made by these four principals
contemporaneously with the event constitutes persuasive evidence
that respondent did not intend to discriminate against
complainant.
Complainant further argues that the evidence supports an
inference that he was fired in retaliation for safety complaints
or based on the belief that he was an MSHA informant.
I disagree. Such a view of the evidence is speculative. Even
assuming that complainant was an informant there is no evidence
that respondent took any adverse action for such activity.
Complainant also argues that Douchene felt MSHA Inspector
Arnoldi should not be assigned to the Coeur unit because of the
number of relatives at the mine; further, it is plausible to
believe that Douchene feared the quality of information that
could flow from relatives to an MSHA inspector.
I reject this argument. Plausibility cannot establish a
violation of the discrimination section. I agree that Commission
precedent holds that adverse action against a miner making safety
complaints to MSHA violates the Act. This is so even though
management is wrong in its belief that the miner made such
complaints as in Moses v. Whitley Development Company, 4 FMSHRC
1475 (1982). In the instant case it is true that complainant
claims to have been an MSHA informant.
This view arises from the incident when Joe Arnoldi spoke to
his father about the two miners, Magoon and Myles. The two miners
had been threatened with termination for failing to bar down a
loose slab.
I do not see how this incident establishes discrimination,
or an intent to discriminate, against Joe Arnoldi. Even if one
Page 31
~1043
assumes ASARCO knew of complainant's statement there is no
persuasive evidence that the company took any adverse action
against him. The Magoon/Myles incident started the day before the
MSHA inspection. On that day Douchene directed the two men to bar
down a loose slab. They apparently began to do so and their
supervisor (William Arthur) told them to terminate their
activity. The following day an MSHA citation was issued for the
same slab. Douchene then called Magoon and Myles into his office.
He asked them if they knew the nature of insubordination.
All of these events had occurred before complainant made any
statments to his father. Complainant relates that "after the
shift was over I talked to Bob Magoon and Bob told him that they
were fired and he [Andre Douchene] was mad because he got wrote
up for something that he thought he shouldn't have gotten wrote
up for" (Tr. 172).
In sum, the Magoon/Myles incident does not establish that
respondent discriminated against complainant.
Complainant further contends that the company admits it was
motivated to terminate him by virtue of his work record as a
whole, citing the transcript at 614. Complainant then argues that
his work record includes a refusal to work in an unsafe place.
Further, his severe allergy condition rendered it unsafe for him
to work.
Complainant has overemphasized a portion of the evidence.
The person who made the ultimate decision to fire complainant was
Andre Douchene with Mike Lee's strong recommendation. Douchene
testified that he and Lee discussed complainant's warning slips
and they both knew he had been disciplined for sleeping. The
following day Lee and Douchene went over complainant's record.
They decided they had done all they could to try to get
complainant to become a good employee. Specifically, they
considered his adverse work record which was documented. He'd
been caught sleeping twice, and he had received numerous warning
slips (Tr. 615).
Complainant's additional contention is that his allergies
caused him to believe, in good faith, that it would be hazardous
to his health for him to work in the mine. In support of his
position complainant Atkins v. Cyprus Mines Corporation, 8 FMSHRC
460, 474 (1986).
These arguments are misdirected. As a threshold matter
complainant did not refuse to work because of his allergy
problems. The cited case is not controlling.
Complainant also argues that respondent refused to rehire
complainant in retaliation for his protected activities and for
the filing of his discrimination complaint.
Page 32
~1044
The evidence shows that Douchene and Lee told complainant that he
could rustle in an effort to get his job back. He did so.
Complainant testified he was treated fairly well, except towards
the end of the rustling period.
I reject complainant's argument. He was discharged because
he was sleeping on the job, an unprotected activity. On this
record the filing of his discrimination complaint played no part
in the refusal to rehire him. The reference to the hiring and
firing of Robert A. Elisoff fails to establish that respondent
discriminated against complainant. This is so because complainant
was discharged for an unprotected activity. Respondent is not
obliged to rehire him. But it can permit him to rustle in an
effort to be re-employed.
Complainant's post-trial brief also attacks the credibility
of Lee, Downs and Douchene. While there are some discrepancies in
respondent's evidence (as well as complainant's evidence) I
generally find respondent's evidence to be credible.
Complainant argues his overall work record did not merit his
discharge and he was treated less favorably than others.
The function of the Commission is to determine whether
discrimination occurred in violation of section 105(c).
Disparities in discipline can be strong evidence of
discriminatory motives. But it is not the function of the
Commission to generally weigh a miner's work record if no
protected activity is established.
For the foregoing reasons the complaint filed herein should
be dismissed.
Briefs
The parties have filed detailed briefs which have been most
helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to the
extent they are inconsistent with this decision, they are
rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
this decision the following conclusions of law are entered:
1. The Commission has jurisdiction to decide this case.
2. Complainant did not prove that he was discriminated
against in violation of Section 105(c).
3. Respondent did not discriminate against complainant in
violation of the Act.
Page 33
~1045
Based on the foregoing findings of fact and conclusions of law I
enter the following:
ORDER
The complaint herein is dismissed.
John J. Morris
Administrative Law Judge
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