Cyprus Plateau Mining Corporation

Plain-English summary

Ernie L. Bruno alleged that Cyprus Plateau Mining discharged him because he reported float coal dust and stopped a shuttle car to water the entry. Judge John J. Morris found that the complaint was filed more than four years after the discharge and that the delay materially prejudiced the operator because key decision-makers were no longer available. Reviewing the merits, the judge assumed that Bruno's safety-related actions were protected activity, but found no evidence that the decision-makers knew about them or that they motivated the discharge. The judge also found that the operator would have discharged Bruno for his unprotected fight with a coworker. The complaint and proceedings were dismissed.

Decision snapshot

• Cited provisions: 30 C.F.R. § 75.400 and 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination complaint and proceedings were dismissed.
• Key point: A delayed discrimination complaint may be dismissed for material prejudice, and the merits still failed where the discharge was shown to stem from an unprotected workplace fight.

Full text (FMSHRC public release)

~1649
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

ERNIE L. BRUNO, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEST 88-157-D
v. DENV CD 88-07
CYPRUS PLATEAU MINING
CORPORATION, Starpoint No. 2 Mine
RESPONDENT

                             DECISION

Appearances: Gregory J. Sanders, Esq., Kipp & Christian,
Salt Lake City, Utah, for Complainant;
Kent W. Winterholler, Esq., Parsons, Behle &
Latimer, Salt Lake City, Utah, for Respondent.

Before: Judge Morris

 This case involves a discrimination complaint filed pursuant

to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801, et seq.

 The applicable portion of the Mine Act, Section 105(c)(1),

in its pertinent portion provides as follows:

Discrimination or interference prohibited; complaint;
investigation; determination; hearing

       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 health violation in a
       coal or other mine .... 30 U.S.C.   815(c)(1).

~1650
After notice to the parties a hearing on the merits was held in
Price, Utah on September 13, 1988.

 Complainant filed a trial brief and respondent filed a

posthearing brief.

                      Applicable Case Law

 The general principles of discrimination cases under the

Mine Act are well settled. In order to establish a prima facie
case of discrimination under Section 105(c) of the Act, a
complaining miner bears the burden of production and proof in
establishing that (1) he engaged in a protected activity, and (2)
the adverse action complained of was motivated in any part by
that particular activity. Secretary on behalf of 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
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April
1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. 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) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).

                             Issues

 The issues are whether the complaint herein was timely

filed; whether complainant was engaged in a protected activity at
the time of the alleged discrimination and whether the operator
would have taken adverse action in any event against complainant
irrespective of any protected activity.

~1651
Filing of Complaint

 The discharge of Ernie L. Bruno, on December 12, 1983,

generated two lawsuits. The initial lawsuit was filed in the
State of Utah District Court some 19 months after the
termination. Bruno had instructed his attorney to get his job
back because "he was judged on a different basis than anyone
else". Bruno's claim was denied in the Utah trial court as well
as on appeal (Tr. 43, 44, 76, Ex. R-5).

 After talking to another miner Bruno learned for the first

time that he had a right to file a complaint with MSHA. Such a
complaint was filed and after its investigation MSHA concluded
that no violation of Section 105(c) had occurred. Bruno filed a
statement disagreeing with MSHA and on March 28, 1988, he filed a
pro se complaint with the Commission. The basis of his complaint
was that he had been fired for being in a fight. Specifically, he
had been treated differently than any other employee. (The Judge
agrees that fighting may be unsafe, but it is clearly not an
activity protected under the Act), Hollis v. Consolidation Coal
Company, 6 FMSHRC 21 (1984).

 Subsequently, on April 18, 1988, Bruno filed additional

information with the Commission setting forth allegations
involving coal float dust and giving this as the real reason for
his dismissal. Bruno states that if he had known about his
Section 105(c) rights in 1983, he would have immediately filed
with MSHA. But he had never seen a poster advising him of such
rights. (Footnote 1) (Tr. 32, 41-42, 46, Ex. R-10).

 Witness Stan Warnick, Manager of Human Resources for Cyprus

Plateau Mining Company, was not involved in the decision to
terminate Bruno (Tr. 278-279). Paul Kelley and Bill Bergamo
investigated a fighting incident between Bruno and Steve Stoker.
Their decision to terminate was confirmed by their supervisor,
Larry Rodriguez (Tr. 279-280). The company's investigation
revealed that Bruno assaulted Steve Stoker, a fellow worker. The
assault occurred in the company kitchen. He was discharged for
that reason (Tr. 281).

~1652
Bergamo, the underground superintendent, is no longer with the
company and lives in California. Kelley is no longer with the
company and lives in the Salt Lake City area. Rodriguez does not
have a current position with Cyprus Plateau Mining Company and
Warnick understood that he was with Texaco (Tr. 281-283). Warnick
did not know how to reach Rodriguez. However, he supposed he
could find Bergamo but he had not made any attempt to find Kelley
(Tr. 292-293).

                              Discussion

 The Commission has held that the time limitations contained

in Section 105(c) of the Act were not intended to be
jurisdictional and dismissal of a complaint for late filing is
justified only if the operator shows a material legal prejudice
attributable to the delay. Secretary ex rel. Hale v. 4-A Coal
Company, Inc., 8 FMSHRC 905 (1986); Herman v. Imco Services, 4
FMSHRC 2135 (1982).

 In this case such material legal prejudice exists: the

individuals who investigated and determined that Bruno should be
fired are no longer with the company. In addition, after a delay
of over four years, it is questionable whether these individuals
would have a present recollection of the events surrounding
Bruno's alleged discrimination and termination. This is
particularly true inasmuch as the uncontroverted evidence shows
that the persons involved in the decision to terminate Bruno for
fighting had not been advised of any alleged protected activity
involving the float coal dust.

 For these reasons I conclude that the complaint filed

herein, more than four and one-half years after the incident, was
not timely filed.

    However, it is appropriate to review the case on the merits.

                          Protected Activity

 In December 1983, Bruno was working a normal workweek

running a shuttle car and he was part of a nine-man crew. Roger
Skaggs was the face foreman.

 Bruno's duties required him to operate his shuttle car in an

unsafe area. In particular, one of the entries was "clear

~1653
full" of float coal dust. (Footnote 2) Some of it was suspended and about
a foot deep in some places. This condition plugged up his nose
and his visibility was impaired (Tr. 25). The first day when he
started running his car through the area he told Skaggs about it
(Tr. 45-47). Skaggs said he would check with the material man who
was responsible for watering down the roadways and maintaining
them (Tr. 27). The situation remained the same. When Skaggs was
again approached on the subject, he explained that the material
man had not gotten to the problem (Tr. 28). After five days the
condition remained the same, so Bruno shut down his buggy and
went over and watered down the area. The watering took 15 to 20
minutes (Tr. 30-31). The same day that he had watered the area
down, Skaggs asked him if he had shut down the shuttle car. When
he confirmed that he had shut it down, Skaggs started "screaming
and yelling" and told him never to shut down the shuttle
car. (Footnote 3) If he did he would be taken off of the buggy (Tr. 31).
Bruno replied that he should have the right to shut down the
shuttle car and water the float coal dust (Tr. 32).

 Several days after the conversation about shutting down the

shuttle car Skaggs told Bruno that it was Steve Stoker who had
told him that Bruno had shut down the car. (Stoker had been
Bruno's helper for many years.) (Tr. 33). When Bruno confronted
him, Stoker denied having made such a statement. Bruno told
Stoker not to make any more trouble (Tr. 33-35).

~1654
Ten days to two weeks later, about December 8, 1983, Bruno again
became irritated with Stoker. This arose because some miners were
not wearing safety glasses; Stoker thought the company should
know about it (Tr. 35-36).

 When Bruno went to lunch that day he was relieved by fellow

worker Ron Dalton who described Stoker as a "troublemaker". Bruno
was upset. As he went to the lunchroom he thought about Stoker
and slowly came to a "boiling point" (Tr. 37).

 Stoker came into the lunchroom. Bruno immediately got up and

approached him. Bruno said Stoker was nothing but a troublemaker.
He then struck him a couple of time. Stoker didn't hit back; he
had a bloody nose. The incident lasted five or six seconds (Tr.
37-38, 104-105).

 Bruno then apologized for hitting him and they talked to

each other and then went back to work (Tr. 39). Bruno finished
the shift and went home. He later received a call from Paul
Kelley, head of the Human Resources Department. At a conference
with Bruno, Bill Bergamo, and Rulen White, the men asked Bruno
about the fight and he was asked if he had struck Stoker. When he
admitted it he was told to call back to learn of the committee's
decision. On December 12, 1983, Bruno was told to choose between
being fired or resigning. Bruno decided to resign because he was
going to be fired (Tr. 40-42, 65, 76, Ex. R-4).

 Bruno instructed his original attorney that he wanted to be

reinstated (Tr. 72, 73). The float coal dust incident was not
raised in the earlier State of Utah lawsuit (Tr. 77).

                           Discussion

 The threshold matter to consider here is whether Bruno's

affirmative action of self help in watering down the entry was an
activity protected under the Act.

 In Robinette, supra, the Commission observed that occasions

will arise where mere ceasing of work will not eliminate or
protect against hazards while adjusting or shutting off equipment
will do so. In such cases such affirmative action may represent
the safest and most responsible means of dealing with the hazard.
Robinette, 3 FMSHRC at 808; Wiggins v. Eastern Associated Coal
Corporation, 7 FMSHRC 1766 (1985).

 It could be argued that Bruno's act of shutting off the

continuous miner and watering down the entry was not an integral
part of a protected work refusal. However, on the authority of
Robinette and Wiggins, I assume that the activities of Bruno in
shutting down the miner and watering down the entry were
protected under the Act.

~1655
Accordingly, it is necessary to further evaluate the evidence.

 The Commission has previously observed that direct evidence

of motivation is rarely encountered in a discrimination case and
that motivation may be drawn from circumstantial evidence showing
such factors as knowledge of the protected activity, coincidence
in time between the protected activity and the adverse action and
disparate treatment. Secretary on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508 (November 1981), rev'd on other
grounds, 709 F.2d 86 (D.C.Cir.1983); Schulte v. Lizza Industries,
Inc., 6 FMSHRC 8 (1984). It is, accordingly, appropriate to
analyze the evidence concerning these cardinal features.

                   Knowledge of Protected Activity

 The face boss, Roger Skaggs, knew Bruno had shut down the

miner to water the entry. But Skaggs did not relay this
information to anyone else. Skaggs' testimony on this point is
both credible and uncontroverted. Skaggs neither participated in
the decision to fire Bruno and the float coal dust incident was
never reported to the committee that considered the discipline
for the Bruno/Stokes fight (Tr. 206). This view of the evidence
is further confirmed by Bruno who agrees he didn't have an
opportunity to say anything about the float coal dust incident
when he was fired (Tr. 76). Nor was it raised in the earlier
State of Utah law suit (Tr. 77). In addition, Bruno admits the
company was first made aware of his discrimination claim in June
1988 (Tr. 84).

                         Coincidence in Time

 I do not find any coincidence in time between Bruno's

protected activity and his discharge. Approximately ten days to
two weeks elapsed from the protected activity and the fight in
the lunchroom between Bruno and Stoker. No adverse action was
taken during this period. On the other hand, it was only a few
days from the time of the lunchroom fight until Bruno was
discharged. This indicates Bruno was fired because of his fight
with Stoker.

                         Disparate Treatment

 A review of the evidence concerning disparate treatment is

necessary since Bruno claims he received disparate treatment.
Specifically, other miners had engaged in fights and had not been
terminated. (This was Bruno's contention when he originally filed
his case in Utah District Court.)

~1656
The evidence shows that Bruno had observed other fights in the
mine (Tr. 46). He had observed a fight between Chad Tabor and
Larry Mardoch (Tr. 50). He was also present on three different
occasions when altercations occurred. Two of them were in the
section where he was working and one was in the bathhouse (Tr.
50). In addition, fighting has always gone on and it was a common
occurrence at the mine (Tr. 84). Bruno had never had a fight with
any supervisory personnel or any other fellow employee at the
mine (Tr. 105). However, on a previous occasion, Bruno admits he
was involved in an incident with fellow employee, Meade. This
occurred when Meade swore at Bruno on two different occasions. On
the second occasion, Bruno pushed him and told him not to talk to
him like that (Tr. 109). According to Bruno it was not a fight
(Tr. 110). However, at the time of the termination interview with
Bergamo, Bruno was asked about the Meade incident (Tr. 111).

 Witness EARL MARCHELLO had observed fighting on the

company's premises. Particularly he recalled Bob Bennett and Ben
Darling (Tr. 117). The Bennett fight occurred underground and it
was after Bruno had been terminated. Skaggs was a supervisor of
the crew but did not see the fight (Tr. 117-121).

 Witness IVAN GAGON had seen a fight between Chad Tabor and

Bud Weaby where blows were exchanged. The men were not terminated
for fighting. The witness also heard of other fights over the
years but was not aware of any employee dismissed for fighting
(Tr. 128-130). However, both men were called in and were "talked
to" by Bergamo and Snyder (Tr. 133).

 Witness KEVIN WOODS had seen three or four fights over the

years at the mine. He had seen a foreman present at those fights
on two occasions. The witness himself was involved in one
altercation and received a letter of reprimand from the company
in May 1984. Woods was not dismissed but he did receive time off
(Tr. 137-139). Bruno was the only one terminated for fighting
(Tr. 140). The witness was not aware of anyone terminated for
fighting (Tr. 146).

 The witness was involved in a fight in the mine with Daniel

Gagon (Tr. 148). The fight occurred at the Twenty-Mile Coal Mine
in Colorado managed by Plateau and still owned by it. A letter of
reprimand was issued (Tr. 151) (Ex. R-13). As a result of the
fight Gagon received a similar letter (Tr. 151). Both men were
suspended for three days (Tr. 152).

~1657
Witness MAYO O'HERRON had observed four or five fights over the
years and been involved in fights himself. In 1979 he received
three days off without pay and he was told if he lost his temper
again he would be fired (Tr. 163). O'Herron was not aware of
anyone who had been terminated for fighting in the mine (Tr. 164)

 Witness ERNEST PRETTYMAN had a fight about five years ago on

the mine premises with John Haughter. Prettyman was not
terminated because the other party "had it coming". Prettyman
knew it was against company policy to fight on the premises (Tr.
170, 173).

 Witness VOPEL LANDER had seen fights, one involving a

company official who took off his miner's hat and belt and called
on the entire crew to fight him. This was in 1981 or 1982. The
company official was Cary Jensen (Tr. 182-183). The witness also
broke up the fight between Chad and Buddy Weaby. The face foreman
witnessed this fight and Weaby quit rather than go back into the
mine (Tr. 184-185). He also saw a fight between Chad Tabor and
Randy Mabbutt (Tr. 185). The Tabor-Mabbutt fight was in 1977 but
no company officials were present (Tr. 186). He also heard about
Bruno's altercation as well as Prettyman's altercation (Tr. 187).

 Respondent's witness ROGER SKAGGS indicated the committee

stated they had to make an example of Bruno and it was hoped the
fighting would quit on the property (Tr. 206-207). Bruno was
terminated for fighting (Tr. 207).

 Witness DAVE DONALDSON, Human Resources Representative for

the respondent, has been so employed for three and one-half years
(Tr. 217). In 1983 it was against company policy to fight
underground and you could be terminated if you were caught
fighting (Tr. 219-220).

 The standards of conduct at the Getty Oil Company prohibited

fighting (Tr. 221).

 Donaldson started working at this site in 1981 for the then

operator, United Nuclear Company. The next owner-operator was
Getty Oil in 1982 and the subsequent operator (in 1984) was
Texaco (Tr. 242-243). Cyprus Minerals Company acquired the
property in March 1986. Plateau Minerals is the parent company of
Cyprus Plateau Mining Company (Tr. 244).

~1658
The Getty booklet contains a prohibition against fighting or
horseplay. The booklet states that disciplinary action may be
taken. It may include discharge (Tr. 248).

 Witness ARNOLD SHAW, Director of Safety for Plateau Mining,

described how safety complaints are handled at the company. The
witness had never had a complaint about float coal dust (Tr.
250-254).

 Witness STAN WARNICK, Manager of Human Resources for

respondent, felt that the discharge of Bruno was consistent with
company policy concerning assaults or fights. Company policy
stated that discipline would be invoked if it appeared
appropriate for the incident (Tr. 281). As a result of the
altercation with Bruno and Stoker, Stoker received a written
warning that any further involvement would result in further
discipline. There are two sets of rules relating to fighting: one
is a safety guideline that prohibits it, and the second is
Getty's standards of conduct that prohibit it. Both documents
state that discipline could be imposed depending upon the
circumstances (Tr. 286).

 According to the company's records three employees have been

terminated for fighting. One was Bruno and the others were Buddy
Weaby and Dennis Craig who was terminated in April 1982 (Tr.
287). There has always been some form of discipline when
management was aware that the fighting had taken place. The
company's policy remains the same (Tr. 288).

 In the witness's view, Bruno was terminated for assaulting

another employee. An assault is more serious than a fight (Tr.
300). However, there is nothing in the company guidelines that
distinguishes assault from any other kind of a fight (Tr.
300-301).

                   Evaluation of the Evidence

 In evaluating the evidence concerning disparate treatment I

credit the operator's evidence. Bruno's witnesses, as to fighting
on the premises, would no doubt know the circumstances under
which a particular fight occurred. However, Warnick, as manager
of Human Resources would be in a position to know whether
employees who have engaged in fights known to the company had
been terminated. He testified that Weaby and Dennis Craig (and
Bruno) were terminated (Tr. 287, 288).

~1659
Further, I am not persuaded by Bruno's arguments that he received
disparate treatment: it is not necessary to distinguish whether
the Stoker incident was an assault or a fight but, in any event,
Bruno was clearly the aggressor. In whatever fashion the incident
is categorized, the Stoker fight was not Bruno's first incident.
Bruno indicates the event involving Leroy Meade was "not a fight"
(Tr. 110). However, it was a fact discussed during Bruno's
termination interview with Bergamo (Tr. 111).

 In sum, if Bruno had established that he was terminated in

part because of protected activity, I would nevertheless conclude
that respondent was motivated by unprotected activities and would
have taken the adverse action for the unprotected activities
alone; i.e., Bruno's fight with fellow worker Stoker in the
lunchroom.

 For the foregoing reasons, I conclude that complainant has

not established that respondent discharged or otherwise
discriminated against him in violation of Section 105(c) of the
Act.

                             ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED that the complaint and proceedings herein are
dismissed.

                              John J. Morris
                              Administrative Law Judge

Footnote starts here:-

~Footnote_one

 1 I credit the operator's evidence that there were many MSHA

posters in prominent places in the mine. If there had not been
such informational posters, an MSHA inspector would have issued a
citation to the operator. No such citation was ever issued. (Tr.
224-227, 255, R-11A through I). Further, Bruno's witnesses
Marchello, O'Herron and Lander confirm that the posters were
present (Tr. 116, 117, 166, 168, 188).

~Footnote_two

 2 The Secretary's regulation, 30 C.F.R.     75.400 provides as

follows:

                     [Statutory Provision]

      Coal dust, including float coal dust deposited on
      rock-dusted surfaces, loose coal and other combustible
      materials, shall be cleaned up and not be permitted to
      accumulate in active workings, or on electric equipment
      therein.

~Footnote_three

 3 Skaggs admits he "got on" Bruno for shutting down

production but not for watering the entry (Tr. 209). A continuous
miner will not operate without water (Tr. 79).