Secretary of Labor o/b/o Gabossi v. Western Fuels-Utah Inc.

Plain-English summary

Joseph Gabossi complained that Western Fuels-Utah's underground reporting structure created unsafe conditions and violated state law, and the company later discharged him. The ALJ found that the discharge was lawful because Gabossi's complaints were not protected Mine Act activity. The Commission held that safety-related complaints about the reporting structure were protected under section 105(c)(1), reversed the ALJ's decision, reinstated the discrimination complaint, and remanded for additional findings. The ALJ was directed to consider whether Western Fuels rebutted the discrimination case and to examine the events surrounding Gabossi's probation and discharge.

Decision snapshot

• Cited standards: 30 U.S.C. § 815(c)(1)
• Outcome: The ALJ's decision was reversed, the discrimination complaint was reinstated, and the case was remanded.
• Key point: A miner's safety complaint can be protected Mine Act activity even when it is also connected to a state-law concern about mine-management responsibilities.

Full text (FMSHRC public release)

+CCASE:
MSHA (JOSEPH GABOSSI) V. WESTERN FUELS-UTAH
DDATE:
19880815
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, DC
                            August 15, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of JOSEPH GABOSSI

   v.             Docket No. WEST 86-24-D

WESTERN FUELS-UTAH INC.

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

              DECISION

BY THE COMMISSION:

 In this case Commission Administrative Law Judge John J.

Morris held that Western Fuels-Utah, Inc. ("Western Fuels") did
not violate the Federal Mine Safety and Health Act of 1977,
30 U.S.C. $ 801 et seq. (1982) ("Mine Act"), in discharging
complainant Joseph Gabossi. 9 FMSHRC 1481 (August 1987) (ALJ).
Gabossi had complained to Western Fuels and to the State of Colorado,
Division of Mines, that the underground reporting structure at the
Deserado Mine created unsafe working conditions, and that it violated
Colorado state law. Judge Morris concluded that the firing was lawful
because Western Fuels was motivated by Mr. Gabossi's clashes with mine
management over the underground reporting structure in effect at
Western Fuels' Deserado Mine and that his complaints did not fall
within the protective umbrella of the anti-discrimination provisions
of section 105(c)(1) of the Mine Act, 30 U.S.C. $ 815(c)(1). 1/ We
disagree.

1/ Section 105(c)(1) provides:

Page 2

     No person shall discharge or in any manner

discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
Act because such miner, representative of miners or
applicant for employment has filed or made a complaint
under or related to this Act, including a complaint
notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or

Page 3

~954
Because Gabossi's conflict with Western Fuels regarding the
Deserado Mine's underground reporting structure was safety related,
a fact acknowledged by the judge, we conclude that Gabossi engaged
in activity protected by the Mine Act. Accordingly, we reverse the
decision of the judge and remand the matter for further proceedings
consistent with this decision.

                 I.

Gabossi began working for Western Fuels on October 1, 1982.

From that time until he was discharged on January 30, 1985, he served
in a dual capacity of mine foreman and underground coal production
superintendent at the Deserado Mine located in Rio Blanco County,
Colorado. At the time Gabossi began working for Western Fuels John
Bootle was the mine manager. Gabossi testified that, under Bootle, he
coordinated the underground maintenance activities with the activities
of his production crew. Tr. 16-17, 119. In June of 1983, Raja
Upadhyay replaced Bootle as mine manager.

 On June 29, 1983, Upadhyay issued an organizational memorandum

setting forth the responsibilities of the Deserado Mine's four
superintendents. Exh. R-1. Pursuant to that organizational
memorandum, Gabossi was in charge of underground coal production
while Gordon Burnett was in charge of underground maintenance.
Although the record is unclear as to whether Gabossi still coordinated
the activities of the maintenance and production departments following
the issuance of this organizational memorandum, Gabossi testified that
from that time until February of 1984 matters became "progressively
worse" between himself and mine manager Upadhyay. Gabossi stated that
on February 14, 1984, Upadhyay informed him that he "wasn't to
interfere with maintenance in any way." Tr. 151-52.

In June of 1984, A.B. Beasley replaced Burnett as the

maintenance superintendent. Beasley and Gabossi described their
relationship as stormy. Tr. 20, 430. In that regard, Beasley had
instructed

  health violation in a coal or other mine, or because
  such miner, representative of miners or applicant for
  employment is the subject of medical evaluations and
  potential transfer under a standard published pursuant
  to section 101 or because such miner, representative
  of miners or applicant for employment has instituted or
  caused to be instituted any proceeding under or related
  to this Act or has testified or is about to testify in

Page 4

 any such proceeding, or because of the exercise by such
 miner, representative of miners or applicant for employment
 on behalf of himself or others of any statutory right
 afforded by this Act.

30 U.S.C. $ 815(c)(1).

Page 5

~955
maintenance foreman Art Cordova to stop reporting his underground
instructions with Upadhyay and was told by the mine manager to follow
them. Tr. 273. In September or October of 1984, Upadhyay gave
Gabossi his own "breakdown" mechanic for each production shift but
preventative underground maintenance remained under the control of
maintenance superintendent Beasley. Tr. 23.

Gabossi's and Upadhyay's relationship continued to deteriorate.

According to Upadhyay, in September, 1984, he and Gabossi had a heated
discussion concerning disability payments to maintenance foreman
Cordova. Tr. 468-69. Upadhyay testified that Gabossi "got real hot,
upset, and left the office." Tr. 469. Upadhyay further testified that
it was then that he decided to fire Gabossi. Id.

On October 1, 1984, Gabossi told Upadhyay that he no longer

wanted to be in charge of the mine when Upadhyay was away. Tr. 493.
Also, during the first week of October 1984, Upadhyay traveled to
Washington, D.C. to meet with his supervisor Lloyd Ernst. Upadhyay
delivered to Ernst a handwritten memorandum requesting Ernst's
permission to fire Gabossi. Tr. 469 70. Although Upadhyay stated
in the memorandum that Gabossi is a "good miner, [who] takes his work
very seriously and gets 100% work out of his employees", Upadhyay also
stated that Gabossi "can't work with others,' that Gabossi is "very
intimidating and tries to get his way in everything," that he "creates
problem[s] with the union employees," and that his loyalty to Western
Fuels is "nil or negative." Exh. R-5. Upadhyay testified that
although he recommended that Gabossi be fired, Ernst chose Upadhyay's
alternative suggestion that Gabossi be assigned more hours underground
in the hope that he would become frustrated with his job and quit.
This plan was set in motion upon Upadhyay's return to the Deserado
Mine. Tr. 471, Exh. R-5.

On November 6, 1984, Gabossi telephoned Boyd Emmons, District

Coal Mine Inspector for the State of Colorado, Division of Mines.
Tr. 27. Both Gabossi and Inspector Emmons testified that during their
November 6 conversation, Gabossi expressed his concern about mine
safety as a result of the underground reporting structure at the
Deserado Mine. Gabossi also told Emmons that he was concerned about
losing his state foreman certification should an accident occur
underground because of the reporting system. Emmons' response was
that as mine foreman Gabossi was responsible under section 34-24-101
of the Colorado Revised Statutes for all underground operations.
Tr. 92. 2/ Although Gabossi did not

2/ Section 34-24-101(2) of the Colorado Revised Statutes provides:

Page 6

      The mine foreman shall have full charge of all

inside workings and of all persons employed therein,
in order that all the provisions of articles 20 to 30
of this title, insofar as they relate to his duties,
shall be complied with, and so that the regulations
prescribed for each class of workmen under his charge
shall be carried out in the

Page 7

~956
file a written safety complaint with the state Division of Mines,
he did ask Inspector Emmons to send him a letter setting forth his
responsibilities as mine foreman under Colorado state law. Tr. 27-29,
92-96.

The November 9th Incident

 On Friday, November 9, 1984, Gabossi showed mine manager

Upadhyay the letter that he had received from Inspector Emmons
relating to his mine foreman duties under state law. Gabossi
testified that he presented the letter to Upadhyay after Upadhyay had
given him the additional responsibility of supervising an underground
computer technician, as well as placing him in charge of surface belts
running from the mine to the silos. Tr. 30. Gabossi stated that as
soon as Upadhyay read Emmons' letter, Upadhyay "instantly got mad and
told me that if I didn't like it, to quit...." Gabossi added that it
was "quite a heated discussion." Tr. 31.

Upadhyay agreed with Gabossi that the November 9 incident was a

"big blowup" but testified that he was not presented with Inspector
Emmons' letter until after Gabossi had asked whether Western Fuels
intended to keep its promise to buy his house were he to leave the
company, and after Gabossi had called him the "worst mine manager" for
whom he had ever worked and had told him that he belonged in a "caste
system." Upadhyay added that, in any event, the letter from the
Colorado Division of Mines merely recited the relevant Colorado state
law that he and Gabossi had previously discussed. Tr. 472-74.

Gabossi's Probation and Discharge

 Upadhyay testified that on Sunday, November 11, 1984, he called

his supervisor, Lloyd Ernst, and again asked Ernst's permission to
fire Gabossi. Ernst suggested that Gabossi be placed on probation.
The next day, Upadhyay orally informed Gabossi that he was being
placed on probation indefinitely. The primary reason given by
Upadhyay for this action was Gabossi's inability to get along with
other members of the management team. Tr. 475-76. While Gabossi
admitted that Upadhyay told him that he was being placed on probation
for not getting along with other senior staff members, Gabossi also
stated that Upadhyay was "madder than hell" that he had contacted the
Colorado Division of Mines. Tr. 32, 34. Gabossi received his letter
of probation on November 16, 1984. The letter read, in pertinent
part:

 Your willingness to work harmoniously under the

Page 8

organization structure put into effect by Western
Fuels has been negative. You have repeatedly
objected to the idea of Maintenance Superintendent
being responsible for underground maintenance.

 You have demonstrated your inability to work

  strictest manner possible.

Exh. C-1.

Page 9

~957
harmoniously with other division heads and employees
at the Deserado Mine.

Exh. C-3.

Gabossi testified that from November 12 to January 21, 1985,

Upadhyay was "very cool, but civil" to him. Tr. 42. On January 21
(just 9 days before he was fired) Gabossi reported to Upadhyay that
one of maintenance superintendent Beasley's crew was falsifying
permissibility inspection logs. Id. Gabossi further testified that
he had little communication with Upadhyay from January 21 to
January 30, 1985, when he was discharged. Tr. 42-43.

Upadhyay testified that he had decided once again to seek

permission from upper management to fire Gabossi after being informed
on January 29, 1985, by maintenance superintendent Beasley that
Beasley was leaving Western Fuels in part because of his inability to
work with Gabossi. Tr. 485. Upadhyay additionally testified that
inasmuch as he had lost maintenance superintendent Burnett and was
about to lose Beasley because of Gabossi's poor attitude, he decided
to seek Gabossi's termination to prevent his also losing the next
maintenance superintendent. Tr. 486. Upadhyay then contacted senior
management in Washington, D.C. and received permission from Ken Holum,
the company's General Manager, to fire Gabossi. Id.

Gabossi and Upadhyay had another "heated argument" when Gabossi

was given his termination notice on January 30, 1985. The termination
notice reads in part:

Western Fuels-Utah, Inc. at the Deserado Mine needs
to have employees who can act together as a team,
especially now in view of our small workforce. Your
efforts have not been directed towards that end. For
this reason, your employment shall be terminated at
Western Fuels-Utah, Inc. effective immediately.

Exh. C-2.
II.

Following Gabossi's discharged, the Secretary filed a

discrimination complaint on his behalf with this independent
Commission. The administrative law judge held in favor of Western
Fuels and dismissed Gabossi's complaint. We granted the Secretary's
petition for discretionary review of the judge's decision.

Page 10

The judge below concluded that Gabossi had complained to Western

Fuels management about the underground reporting structure because of
his concerns over safety. 9 FMSHRC at 1504. The judge also concluded
that Gabossi "was fired because of his continuing and extensive
conflict with mine management over the company's failure to coordinate

Page 11

~958
underground mining activities." Id. Nevertheless, despite
acknowledging that Gabossi's complaints concerning the company's
underground reporting structure were "safety related," the judge held
that those complaints were not protected under the Mine Act. 9 FMSHRC
at 1505. The judge states that, "In short, [Gabossi's] unprotected
activity, insofar as the federal Act is concerned, was his continual
clash with management over the reporting structure." Id. The judge
found that Gabossi's complaints were unprotected because neither the
Mine Act nor the Department of Labor's Mine Safety and Health
Administration's regulations contain a provision on a mine foreman's
duties corresponding to section 32-24-101(2) of the Colorado Revised
Statutes. 9 FMSHRC at 1505. See n. 2, supra. 3/

We hold that the judge erred in concluding that Gabossi's

complaints to mine management regarding the Deserado Mine's
underground reporting structure did not constitute activity protected
under the Mine Act. In that regard, we note that the record amply
supports the judge's determination that Gabossi's complaints to
Western Fuels about the underground reporting structure were safety
related. Gabossi testified that he had complained to Upadhyay about
10 to 15 times concerning the underground coordination problems
between the production and the maintenance departments, but was told
that maintenance was "none of his business." Tr. 22, 25-26, 143, 182.
Gabossi was particularly concerned about ventilation changes made by
the maintenance department which he believed could jeopardize the
safety of the production crew. Tr. 21-22, 179-80.

Section 105(c)(1) of the Mine Act specifically prohibits

discrimination against a miner who has "made a complaint under or
related to this Act, including a complaint notifying the operator ...
of an alleged danger or safety and health violation." 30 U.S.C.
$ 815(c)(1) (emphasis added). The fact that Gabossi's safety concerns
may have been related to the Colorado statute does not make his
objections regarding the Deserado Mine's underground reporting
structure any less a safety complaint under the Mine Act.

In light of our finding that Gabossi's complaints to mine

management were protected under the Mine Act and in light of the
judge's conclusion that Gabossi was fired because of his "continuing
and extensive conflict with mine management over the company's failure
to coordinate underground mining activities," the Secretary may have
established a case of unlawful discrimination. Secretary on behalf
of David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of

Page 12

Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981). It remains to be determined whether, on the basis of
this record, Western Fuels successfully rebutted the Secretary's case
or

3/ The judge, however, did find that Gabossi's contacting the Colorado
Division of Mines and his presentation of State Inspector Emmons'
letter to mine manager Upadhyay constituted activity protected under
the Mine Act. 9 FMSHRC at 1505.

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~959
affirmatively defended against it. Pasula, supra; Robinette, supra.
See also, Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983). Accordingly, we remand this case for the judge to
make additional findings of fact and to analyze those findings in
accordance with applicable case law. Furthermore, to the extent
appropriate for the disposition of this case, on remand the judge
should consider the November 9, 1985 incident involving Gabossi and
mine manager Upadhyay, Gabossi being placed on probation subsequently,
and the events surrounding the discharge of Gabossi on January 30,
1985.

 For the reasons set forth above, the judge's decision is

reversed, the complaint of discrimination is reinstated, and the case
is remanded for further proceedings consistent with this decision.