Industrial Constructors Corp.
Industrial Constructors Corp. (FMSHRC WEST 88-246-DM): Discrimination complaint sustained
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Harry C. Ramsey worked as a crusher operator for Industrial Constructors Corp. at the Colosseum Mine. After Ramsey shut down equipment when dust prevented him from seeing workers, he argued with a supervisor, said he could not work under conditions that removed his ability to stop the machinery, and left at the end of the shift. The company later declined to rehire him. Judge John J. Morris found that Ramsey's safety complaint was protected activity, that the conditions amounted to a constructive discharge, and that the refusal to rehire him was also discriminatory. The judge ordered reinstatement or a comparable position, back pay with interest from August 13, 1987, and further proceedings to calculate back pay, attorneys' fees, and litigation expenses.
Decision snapshot
- Governing provisions: 30 U.S.C. § 815(c)(1) and § 815(c)(3).
- Outcome: The discrimination complaint was sustained. Industrial Constructors was ordered to reinstate Ramsey or place him in a comparable position and pay back pay with interest, with further damage calculations reserved.
- Key point: A miner's refusal to continue operating equipment when dust prevents safe visibility can be protected activity under the Mine Act.
Full text (FMSHRC public release)
CASE:
SOL (MSHA) V. INDUSTRIAL CONSTRUCTORS
DATE:
19890802
TEXT:
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-246-DM
ON BEHALF OF HARRY RAMSEY,
COMPLAINANT MD 87-51
v. Colosseum Mine
INDUSTRIAL CONSTRUCTORS CORP.,
RESPONDENT
INTERIM ORDER
Appearances: Norman J. Reed, Esq. and Nathaniel J. Reed, Esq.
Reno, Nevada,
for Complainant;
William T. Murphy, Esq., Washington Corporations,
Missoula, Montana,
for Respondent.
Before: Judge Morris
This case involves a complainant discrimination filed by the
Secretary on behalf of complainant pursuant to the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. After the
case was at issue, and after other counsel appeared, the
Solicitor of Labor moved to withdraw as counsel for complainant.
After notice, no person objected and the Solicitor's motion to
withdraw was granted (Orders: January 9, 1989 and January 23,
1989).
After notice to the parties a hearing on the merits was held
in Las Vegas, Nevada, on January 31, 1989. A subsequent hearing
on the issue of attorney's fees is scheduled for October 24,
1989.
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 oper-
ator'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).
Post trial briefs on the merits were filed by the parties.
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 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).
SUMMARY OF THE EVIDENCE
This case does not lack for credibility issues: The prior
employment of HARRY C. RAMSEY, SR., included 20 years with Mobil
Oil Company. He retired from Mobil in 1987. While working for
Mobil his work schedule permitted him to own and operate a
construction company. His company employed up to 100 workers. The
business was sold in 1983 when it became too large (Tr. 27-30).
Since July 1988 Ramsey has been a ranger at a golf course in
Las Vegas, Nevada (Tr. 24, 26).
Between 1976 and 1987 Ramsey has owned and operated many
pieces of heavy construction equipment (Tr. 27, 28, 33-34). He
has been trained in fire fighting, safety training and first aid
(Tr. 26, 29).
After leaving Mobil, Ramsey went to work for respondent, He
was hired to operate all types of equipment on the job site (Tr.
30-33). He was also a pick and shovel laborer for one or two
weeks (Tr. 35, 36).
In late June, or early July, when the company set up a
crusher operation, Ramsey became the loader operator. He spent
most of his time on the loader but he didn't receive a
reclassification slip (Tr. 36, 37).
The crusher operator has various duties. He is involved with
the continuous flow of material, monitoring personnel and
signaling personnel by hand and horn signals if a problem occurs
(Tr. 38, 39) (Exhibit C-3 is an unscaled drawing showing the
equipment layout for the crusher spreader) (Tr. 40).
Cliff Morrison, the crusher foreman, instructed Ramsey in
the manner and use of signals.
The 8 foot by 8 foot building (control tower) where Ramsey
operated the crusher had windows on all sides. It was 20 feet
above ground level so the operator could see everything in the
work field (Tr. 41, 42). Ramsey's duties required him to remain
in the control tower structure.
If a build-up of material occurred the mechanic or foreman would
indicate this to the crusher operator. The operator would then,
by whistle signal, bring in the rest of the workers. When he
could see all of the workers, the operator would then shut down
the equipment. This is normal procedure for shutting off the
machine (Tr. 44). Morrison told Ramsey to operate under these
procedures (Tr. 45).
On the swing shift of August 12/13, 1987, Ramsey was in the
control tower. The evening shift had started at 4:00 or 4:30 p.m.
The normal shift lasts 10 hours. The foreman was in and out of
the tower all of the time (Tr. 42, 43).
About 45 minutes before the end of the shift they were
crushing rock. At this point Superintendent Morrison came into
view and gave Mr. Ramsey a hand signal to shut off the water. The
signal was given from the normal signaling area. Ramsey hesitated
when he saw the signal. There was still 30 to 45 minutes of
production left and he wasn't anticipating a shutdown at that
exact time (Tr. 45, 46). When the water remained on, Morrison
signaled again. Ramsey had no idea why he should shut down the
water but he followed the second direction (Tr. 46, 47). In a
couple of minutes Ramsey could not see the window of the control
tower in front of him (Tr. 47).
The main function of the water is dust control (Tr. 47).
Ramsey agreed that they have operated a few times without
water. If a worker walked through the area it is necessary to see
that person to know if he is safe. If an employee cannot be seen
on the site, the control operator automatically shuts down "real
quick" (Tr. 48). There have been occasions where Ramsey shut down
the equipment without signaling (Tr. 49). Ramsey has followed
normal procedure by shutting off the machine and getting all
employees out in front of the tower (Tr. 49, 50).
On this occasion, after shutting off the water, in two or
three minutes, Ramsey couldn't see anything. He listened but he
heard nothing unusual (Tr. 50, 57). About two or three minutes
elapsed after he shut off the machine (Tr. 51).
Ramsey estimated that five minutes elapsed from when he couldn't
see at all until he could make out shadows and equipment (Tr.
52). As soon as visibility cleared Morrison came up to the
control tower and asked Ramsey why he had shut down the crusher.
Ramsey said he couldn't see. Morrison, who was hostile, told
Ramsey that he'd tell him when to shut the water on and off (Tr.
54).
Morrison then tore the daily work paper off the wall and
went down the stairs (Tr. 54).
Ramsey then ran the crusher (to clean off the accumulated
material). It took about three to five minutes to clean the
machine (Tr. 55).
Ramsey then approached Morrison and asked if he had the
authority to turn the water on and off (as he had been previously
advised when he started as an operator) (Tr. 57). In a three to
five minute conversation, Morrison replied that he (Morrison)
would be the one to tell him when to turn the water on and off
(Tr. 58, 59). Ramsey then replied that he wouldn't work for him
under these conditions (Tr. 59). Ramsey was trying to get
Morrison to tell him there was no problem. But he would only say
that he'd be the one to tell him what to do (Tr. 60). Ramsey
repeated that he wouldn't work under those conditions. Morrison
asked if he was quitting and Ramsey replied he was. Ramsey felt
if he didn't have this latitude he would quit because it was not
safe (Tr. 60, 61). However, Ramsey didn't intend to quit working
for ICC(FOOTNOTE 1) (Tr. 61).
Ramsey and the rest of the crew spent another 15 minutes
completing normal clean-up work. Ramsey then got in Morrison's
truck to ride to the bus and eventually home. There was no
conversation between Ramsey and Morrison on the way to the bus
(Tr. 61-63).
About 9:30 a.m. the following morning Ramsey called Mine
Superintendent Hildebrandt and told him what had occurred at the
end of the shift (Tr. 65). Hildebrandt said he'd check into it
and get back with him (Tr. 65, 66). When he again contacted
Hildebrandt, about a week later, Ramsey was advised by the
company secretary that there was no work available (Tr. 68, 69,
Ex. C-18).
Ramsey talked to loader operator Boudreaux and company
mechanic Chris Norskog. They concurred with what Ramsey had done
(Tr. 70).
Ramsey subsequently filed a discrimination complaint with
MSHA (Tr. 72, 73, Ex. C-5). He also took statements from company
employees Chris Norskog, Alvin Boudreaux, Hildebrandt and
Morrison (Tr. 75). The Norskog and Boudreaux statements were
taken at the MSHA inspector's request (Tr. 78, Ex. C-16). Ramsey
also heard the company had been cited for dust problems (Tr. 76,
Ex. C-12).
After he was terminated Ramsey sought other employment. He
sent 60 to 70 resumes to potential employers (Tr. 81, 84, Ex.
C-7, C-8). He has continued to seek employment in his field. In
addition, he has held several jobs (Tr. 87-90).
Respondent's Evidence
CLIFFORD MORRISON, a person experienced in construction, was
laid off together with the entire crew at the Colosseum site when
the crushing job was finished (Tr. 153, 154).
Morrison, as supervisor, reclassified and gave Ramsey a
raise (Tr. 156). He felt the raise was deserved as Ramsey was
doing a good job in the short period of time he was there (Tr.
157, 158). After the raise Ramsey was receiving the money crusher
operators were worth (Tr. 158). However, there were a few
unsatisfactory incidents involving Ramsey. [These incidents did
not cause Ramsey to be discharged.]
On August 12, 1987, Ramsey and Morrison had a disagreement over
crusher dust and safety procedures for the crusher (Tr. 158, 159,
Ex. C-4).
On this occasion, about ten or fifteen minutes before the
end of the shift the miners were standing in front of the parts
trailer. At that point Morrison asked Ramsey to shut off the
water so they could clean the screens(FOOTNOTE 2) (Tr. 160).
Ramsey turned the water off and then he turned off the
crusher. Morrison went up into the tower and asked him why he had
taken that action. There was no reason to shut off the crusher
because Morrison was standing right below him. Morrison could see
Ramsey and part of the plant. Before he signaled the shutoff of
the water Morrison signaled him to assure the safety of the other
workers. All of the workers were safe and they were standing next
to Morrison or they were in the parts van. Ramsey could have seen
them. Morrison agrees that Ramsey could have shut down if he
hadn't seen the employees. This is standard procedure (Tr. 160).
In the tower, when Morrison asked Ramsey why he had shut
down, Ramsey said he couldn't see. Morrison replied that there
was only a little material left to run. It would only take a
minute. Morrison then tore off the daily log and left (Tr. 161,
162).
Morrison finished his paper work and took it to the office.
When he returned Ramsey handed him his hard hat and flashlight.
He then said he quit. Morrison asked if he was going to quit over
a little bit of dust. Ramsey said, "Yes, if it continues."
Morrison walked away. The disagreement involved turning the water
on or off (Tr. 162, 164). Ramsey never argued about turning the
crusher on or off (Tr. 162). Ramsey had the authority to turn it
on or off if there was a safety hazard. This was a standard
procedure (Tr. 163). Ramsey requested no further consultations
over the issues. Morrison was laid off a month later. Ramsey
didn't contact him during that period (Tr. 163, 164).
When Morrison hired workers for the crusher crew, none of them
were told that they would have long-term employment. Such
employment is not standard in the industry. When crushing is
complete the crew is laid off. Ramsey wasn't given any reason to
believe he'd be kept on when the project was completed (Tr. 164).
Morrison told Ramsey to shut the water off -- not the
crusher. He was also standing where he could view the dust once
the water was shut off. Morrison could see every bit of the
crusher. Visibility was not reduced to the extent that it was
dangerous. Morrison could also see Ramsey in the control tower.
He could have signaled him in the tower, even after the water was
shut off, had he wanted to do so (Tr. 165, 166).
Morrison agrees that Ramsey was performing adequately as an
operator when Morrison suggested he receive a raise (Tr. 174).
On Ramsey's separation slip Morrison wrote "quit" (Tr. 176,
186, Ex. C-4, R-1).
DICK NASH, ICC's personnel manager, identified certain
records and testified the crusher crew was laid off September 25,
1986 (Tr. 200-202, Ex. R-1). He further testified concerning the
401(k) plan involving waged employees as compared to salaried
employees (Tr. 211, 212, Ex. C-1, R-1). [Discussed under damages,
infra].
ORVILLE HILDEBRANDT, ICC's project manager, worked on the
Colosseum job (Tr. 244).
When he hired Ramsey he gave him a safety tour which is
standard for all new employees. On one occasion while running the
loader, ICC supervisor Brown gave Ramsey some instructions.
Ramsey felt he was abusing the equipment and he might quit
sometime over that issue. But he still wanted to work some other
area of the project. Hildebrant believed that Ramsey felt he was
probably more qualified than the foreman. As a result Hildebrandt
felt [Ramsey] resented the foreman giving him directions (Tr.
247, 248).
The morning after the August 12th incident Hildebrant
learned of the conflict between Ramsey and Morrison. Ramsey said
he'd quit but he would like to remain in another position on the
project (Tr. 248). Ramsey said he'd return to the crusher if
Hildebrant would authorize him to have control (Tr. 248).
Hildebrant and Morrison talked. Morrison told Hildebrant that
Ramsey had quit over the dust and who was turning off the water
and such (Tr. 249). Hildebrant did return Ramsey's call and he
decided not to rehire him because of two incidents. These two
incidents involved the loader and the crusher (Tr. 249).(FOOTNOTE 3)
On September 8, 1987, an MSHA investigator came to the plant
and issued citations due to crusher dust(FOOTNOTE 4) (Tr. 251, 252, Ex.
C-12). Hildebrant, in abating the citation, wrote a letter to
control the dust from the crusher (Tr. 252, Ex. C-15).
Hildebrant also testified concerning the company's 401(k)
plan (Tr. 254).
Superintendant Hildebrant also indicated that Ramsey
received a raise; further, he was transferred to a different
position at a later date (Tr. 259).
As a crusher operator a part of Ramsey's duties relate to
when to shut the water and the machine on and off (Tr. 259). The
crusher operator could shut down the machinery if he didn't know
where the workers were located. In an emergency he could also
shut the water on or off (Tr. 260).
When Ramsey called Hildebrandt he told him he had quit
because he had a disagreement with Morrison over the way the
water should be shut off or how the dust should be controlled
(Tr. 278). He also stated he would like to work in some other
area of the project (Tr. 278, 279). In addition, he would go back
to the same position if Hildebrant would give him control of the
crusher (Tr. 279).
The Colosseum mine is still operating. Further, miners are using
heavy equipment used in the production of gold (Tr. 280, 289).
BEN BROWN was an ICC night shift foreman in the summer of
-
He has since been laid off (Tr. 283, 284).
Brown considered Ramsey's skill as a loader operator to be
below average. He further considered Ramsey to be a poor dozer
operator (Tr. 285).Brown and Ramsey were involved in two conflicts. These
didn't cause Ramsey to be terminated. One involved Ramsey running
the loader at half throttle or lower. The other involved loading
with the front of the bucket rather than the heel. He considered
that Ramsey's ability to take orders was poor (Tr. 286, 289).Brown admits Ramsey received a raise after two conflicts
between them. However, it was Morrison and not Brown who
recommended the raise (Tr. 288, 289).CHRIS NORSKOG testified by deposition. Norskog has spent 15
years working around rock crushers (Dep. 5, 6).Norskog had to show Ramsey some basic matters concerning the
rock crusher (Dep. 8).Norskog recalls an argument between Ramsey and Morrison
about whether to fire the crusher up again with or without water.
Both men were angry (Dep. 8). Ramsey did not want to fire the
crusher up. Morrison replied he was the boss and he'd fire the
crusher up. Ramsey said he was going to quit (Dep. 8, 9). The two
men didn't appear to be acting rationally (Dep. 9). Phillip
Boudreaux heard less of the argument (Dep. 9, 10).There was a little more dust than usual when they shut the
water off but it was not enough to be dangerous (Dep. 11).It was standard procedure to let the machine run without
water. It would only take a short while to clean the screens.
Ramsey hadn't complained about it prior to that time (Dep. 11).
There are other options besides running the equipment without
water but Norskog didn't know if Ramsey knew about them (Dep. 12,
13).Within a day or two later Norskog refused Ramsey's request to
sign a statement that it was unsafe to work in the area. However,
Boudreaux signed the document. Norskog later gave a statement to
an MSHA inspector (Dep. 15).Discussion on the MeritsThe credible evidence adduced by complainant establishes
that Ramsey was engaged in a protected activity when he
complained to his supervisor Morrison about the dusty conditions
that precluded him from seeing the workers who were in close
proximity to the crusher. He was thus constructively discharged
since he has shown that ICC created or maintained conditions so
intolerable that a reasonable miner would have felt compelled to
resign. One act of discrimination occurred at the time of the
constructive discharge. A second act of discrimination occurred
when the company refused to rehire Ramsey.ICC contends that Ramsey was not engaged in a protected
activity but merely disagreed with his supervisor about the
crusher operation.In support of its view, ICC points to several facets of the
case. Specifically, in his complaint, it is asserted that Ramsey
never indicated the dispute with Morrison involved anything other
than turning the crusher on or off. (Ramsey could do this any
time a hazard developed.) Further in support of ICC's position is
found in MSHA's interview with Morrison (Ex. C-10, p.4-6).I reject ICC's arguments. I question whether any discrepancy
exists but the facts here involve a mix of what would occur when
the crusher operator turned off the crusher and/or the water. The
critical point is that Ramsey's complaint was clearly safety
related.Supporting Ramsey's testimony is his statement to MSHA. The
statement reads in part as follows:And on the morning of the 13th which is a continuance of, you know, the same shift, we work from 5 in the evening 'til 3 in the morning. It was approximately 2:30 and Cliff, the foreman, walked down to, this one area is kinda designated as a signal area for the men down below where I can see them. He walked into that area and signaled me to shut the water off to the whole spread and I hesitated. He very abruptly motioned again. So I shut it off and within a matter of two to three minutes the visibility was just, I mean absolutely zero. I mean I couldn't, I couldn't see the window that I was looking out of let alone monitor the people, the equipment or anything else so I just shut the feeder and the jaws down which feeds material to the whole area and the minute that I felt that there was nothing else through it, just be noise, I shut the whole spread down and about seven to ten minutes later when everything cleared enough where a person could see to walk ten feet, Cliff come boiling up the steps. I mean he was hostile, attitude and asked me what the hell I was doing shutting the spread down. I said, "Well, if I can't see, I'm damn sure not going to run anything." I said "Well you know, when we shut that water off, I can't see nothing." And he's very, very verbally, I mean loud. "I've run one of these G-D things for so many years. I'll tell you when to shut it down." And I says "Hey, you know, if I'm operating the damn thing, I've got to have the option whenever I can't see and I can't see the men down there to knock her off. You know, until we can safety operate." And he went boiling down the steps so I just went ahead and run the belts clear, what was on them, you know, so you don't leave them for the next shift and then I went downstairs and I confronted him again. I says "Cliff, you know, under those conditions," I says "we can't operate." "God damn it," he says, "I'll tell you when to run and when not to run." I says "Hey," I said, "if you're going to be like that," I said "I can't work for you." I said "I have got to have the option to be able to shut the damn thing down when we can't see. The first thing you told me when you hired me was that even if a man has got to go to the john, that he's got to check out with me because I've got to be able to see him and know where he's at. And now you tell me that you're going to tell me when to shut it down and half the time you're not even here." I says "Hey," I said "I'm not working for you under those conditions." He said "Are you quitting?" I said "Under those conditions, you're damn right." And it was the end of the shift then so we went ahead and finished our normal 3 o'clock clean-up and I got in the truck with him, drove up to the impound area more or less, and we got in the buses and everything and went downhill. (Exhibit R-2, pages 3, 4)It necessarily follows that I disagree with ICC's view that
the argument over when and how the screens are cleared is not a
protected activity. For the reasons stated I find that Ramsey's
complaints were safety related.ICC further contends that Ramsey's refusal to work was not
based on good faith belief that a hazard existed. This is so
because Ramsey had operated the crusher for five weeks and it was
standard procedure to turn the water off so the screens could be
cleaned. Further, Ramsey's failure to voice his concerns for the
safety of fellow employees (before August 13th) does not support
his position that a hazard existed.I disagree. The evidencing hearing focused on the events of
August 12th, but in any event ICC's position lacks merit.
Ramsey's testimony is unrebutted that if an employee cannot be
seen on the site, the crusher operator automatically shuts down
"real quick" (Tr. 48). Further, there have been times where
Ramsey shut down the equipment without signaling (Tr. 49).In addition, on the issue of good faith, Ramsey's testimony
is further supported by Morrison, Hildebrandt and Norskog.
Morrison, after the confrontation, asked Ramsey if he was going
"to quit over a little bit of dust" (Tr. 162, 164). Morrison also
told Hildebrant that Ramsey quit over the dust and an argument as
to who would be turning off the water (Tr. 249). See also
separation slip (Ex. C-4). The slip, signed by Morrison, states,
"We had a disagreement on the way to run the crusher." Further,
Norskog recalled an angry argument between Ramsey and Morrison
about whether to fire up the crusher again with or without water.
Ramsey did not want to fire the crusher up. Morrison replied he
was the boss and he'd fire the crusher up. Ramsey then said he
was going to quit (Dep. pages 8, 9).The above evidence causes me to conclude that Ramsey acted in
good faith and he did not invent a safety complaint on August
13th.ICC further argues that a difference of opinion over a
proper way to perform a task are not a protected work refusal
citing Secretary on behalf of Cameron v. Consolidation Coal Co.,
7 FMSHRC 319 (1985).The evidence shows more than a difference of opinion. It
shows concern by Ramsey for the safety of miners at the worksite.
In the instant case the nexus is clear between the complaint and
possible injury to workers.ICC asserts that Ramsey's work refusal, and his voluntary
"quit", occurred after the end of the shift when the crusher had
been shut down and the belts cleaned.I agree that it is uncontroverted that Ramsey quit at the
end of the shift. However, Ramsey's action was a constructive
discharge as discussed infra. It is also apparent why Ramsey quit
and the timing was closely related to the protected activity.Cameron is not inopposite this view.It is also ICC's view that Ramsey failed to communicate any
hazard to ICC.The thrust of ICC's argument is that Ramsey and Morrison did
not communicate, rather they were "angry," "not listening to each
other" and "excited." Further, when they rode down the hill it is
undisputed that the two men did not talk.It is apparent from the record here that the words spoken
encompassed and communicated the safety hazard. Further, by their
very nature safety complaints often revolve in a heated and
argumentative manner. Compare, Secretary on behalf of John
Gabossi v. Western Fuels - Utah, Inc., 9 FMSHRC 1481 (1987).ICC also states that even if Ramsey was engaged in a
protected activity no adverse action was taken against him in
retaliation for the complaint, citing Pasula, supra; Thurman v.
Queen Anne Coal Co. et al, 10 FMSHRC 131 (1988) and Edwards v.
Aaron Mining Co., 5 FMSHRC 2035 (1983). Further, a single act of
alleged discrimination standing alone would not constitute an
aggravated situation which would force a reasonable person to
resign, citing Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988).In considering the doctrine of constructive discharge, different
appellate courts have different views. For example, the Court of
Appeals for the Fourth Circuit requires proof of the employer's
specific intent to force an employee to leave(FOOTNOTE 5). Bristow v.
Daily Press, Inc., 770 F.2d 1251 (1985). The Commission adhered
to this position in Robert Simpson v. Kenta Energy, Inc., 8
FMSHRC 1034 (1986).On the other hand, the Commission's decision in Simpson was
specifically reversed by the U.S. Court of Appeals for the
District of Columbia, 842 F.2d. 453. The Court reversed the
Commission and held that the proper application of the law
involves an objective approach to constructive discharge. In
short, the intent of an operator to cause a miner to quit is not
relevant.The Court summarizes its view that whether conditions are so
intolerable that a reasonable person would feel compelled to
resign is a question for the trier of fact, 842 F.2d at 463.The Commission on May 11, 1989, adopted the view of the
Court of Appeals. I am constrained by the Commission's adoption
of the Court of Appeals decision in Simpson.In the instant case two acts of discrimination occurred.
Ramsey was constructively discharged when he quit at the end of
the shift on August 13th. Further, he was discriminated against
(as was Robert Simpson) when the company refused to rehire him.Whether the company was justified in refusing to rehire
Ramsey requires a review of conflicting evidence.Ramsey's evidence shows he has had extensive experience in
operating heavy equipment. This appears from the testimony of his
background and the resumes he has forwarded to potential
employers.On the other hand, the operator's evidence indicates Ramsey's
skill as a loader operator was below average to poor. Further, he
was inexperienced and not competent as a crusher operator. In
addition, it was believed Ramsey didn't like to take orders
because he felt he was more experienced than the foreman. I do
not find ICC's evidence to be credible. If Ramsey was such a poor
worker it seems incredible that he would receive a pay increase
after a short time on the job. Compare: Secretary on behalf of
Patricia Anderson v. Stafford Construction Co., 732 F.2d 954
(D.C. Cir. 1984). In any event superintendent Hildebrant
identified two reasons not to rehire. One reason involved
Ramsey's claim that the instructions from Brown required him to
abuse the loader teeth (an unprotected activity since it did not
involve safety). The additional reason was the crusher incident
of Ramsey and Morrison (a protected activity).In sum, ICC discriminated against Ramsey in refusing to
rehire him.ICC also states that Ramsey failed to attempt to resolve the
conflict. It argues such failure constitutes a bar to recovery.In support of its position ICC cites Bourque v. Powell
Electrical Manufacturing Co., 617 F.2d 61 (5th Cir., 1980) and
Alicea Rosado v. Garcia Santiago, et al, 562 F.2d 114 (1st Cir.
1977).Specifically ICC contends that Ramsey had two honest
alternatives open to him. He could have simply refused to work
until he discussed the matter with Morrison's superior, or he
could have made sure all the other employees were away from the
crusher for the final few minutes required to clean the screens.The position urged by ICC would invoke a new doctrine not
presently contemplated under the Mine Act. Further, the cases
relied on by ICC do not arise under the Mine Act.For the foregoing reasons the complaint of discrimination
filed herein is sustained.REINSTATEMENT Complainant herein sought to be reinstated (Tr. 22).If charges of discrimination are sustained then Section
105(c)(3) authorizes reinstatement of a miner to his former
position with backpay and interest.The evidence here is uncontroverted in several respects.On behalf of ICC the evidence shows that none of the workers
were given any indication that their job was long term. Such long
term employment is not standard in the industry. The evidence
also shows that the work shift was in fact shut down in its
entirety about a month after the Ramsey/Morrison incident.On behalf of Ramsey the evidence is uncontroverted that the
Colosseum Mine is still operating. Further, the operator is
presently using heavy equipment in the production of gold.DiscussionIf a miner has been discriminated against then he should be
restored, as nearly as possible, to his position as if the
discrimination had not occurred.Accordingly, an order of reinstatement to his former
position as a crusher operator at the Colosseum Mine is
appropriate. If the position of crusher operator is no longer
available (an uncontroverted fact in the record) then complainant
is to be reinstated to a comparable position without any loss of
pay or benefits. Kenneth A. Wiggins v. Eastern Associated Coal
Corporation, 7 FMSHRC 1766, 1773 (1985).DamagesThe Act provides that a miner should be reinstated to his
former position with backpay and interest.Ramsey was constructively discharged on August 13, 1987. He
is entitled to backpay with interest from that date until the
date of his reinstatement.Accordingly, the parties are directed, within 20 days, to
agree on the wage loss incurred by complainant.In calculating the interest the parties are directed to make
their calculations on the bases of the attached memoranda from
the Commission's Executive Director dated January 10, 1989, and
April 6, 1989.Further DamagesA further credibility issue in this case concerns whether
Ramsey is entitled to certain retirement benefits under the
company's 401(k) retirement plan.In connection with this issue Ramsey testified that if you are
with the company 30 days, an employee can contribute up to 15
percent of your paycheck. In turn, ICC will match the employee
contribution up to the legal limit allowed by law. Ramsey asserts
he contributed $553.50 to this plan, as shown by his check (Tr.
91-93, Ex. C-6). Witness Wallis Hack, a certified public
accountant, testified as to the benefits due Ramsey under the
company plan (Tr. 127-149, Ex. C-1).I credit the contrary evidence adduced by ICC's personnel
manager DICK NASH. The witness, familiar with the plan, indicates
there is a difference between the 401(k) plan for waged employees
(such as Ramsey) as compared to salaried employees (Tr. 211).
Salaried employees receive a matching contribution up to 50
percent of the first 4 percent of the base salary of that
employee (Tr. 212). On the other hand, waged employees receive 75
percent per hour for every hour of straight time and overtime the
employees work (Tr. 212).Ramsey was a waged employee. The ICC pay stub for Ramsey
(for 8/14/87) shows a figure of $553.50 (Ex. C-6). That number is
not related to the 401(k) plan but is ICC's matching contribution
under FICA, social security tax (Tr. 215-220). Hourly employees
do not receive a matching contribution. However, Ramsey received
payment for the 590.5 hours he worked at 75 cents per hour or
$442.88. That amount was contributed by ICC to Ramsey's personal
accounts.DiscussionRamsey is entitled to his lost pay until reinstated.
Further, the pay would include ICC's 75 cent per hour
contribution for each hour worked by Ramsey.I credit ICC's evidence because a personnel manager would
know the benefits the company provides its employees. ICC's
position is also supported on this issue by the testimony of
Hildebrandt (Tr. 254).In addition, Ramsey, as a waged employee of less than 14
weeks, would not have the requisite expertise to know if he could
participate in ICC's 401(k) plan.ORDERBased on the foregoing findings of fact and conclusions of
law, IT IS ORDERED:-
Respondent reinstate complainant to his position as a
crusher operator, or if the position of crusher operator is
unavailable, a comparable position. -
Respondent shall pay to complainant backpay from August
13, 1987, until complainant is reinstated. Said backpay shall
bear interest thereon in accordance with the memoranda attached
to this order. -
Complainant shall file a statement, within 20 days of the
date of this order, showing the amount he claims as backpay and
interest under paragraph 2 above. Complainant, within said 20
days, shall also file a statement showing the amount he claims
for attorneys' fees and necessary legal expenses.
The foregoing statement shall be served on respondent who
shall have 20 days from the date of service to reply thereto.-
This decision is not final until a further order is
issued with respect to the amount of complainant's entitlement to
backpay, attorneys' fees and litigation expenses. -
If the parties cannot agree a hearing on the issue of
attorneys' fees will proceed as heretofore scheduled on October
24, 1989, in Las Vegas, Nevada.John J. Morris Administrative Law JudgeFOOTNOTES START HERE
1. While Ramsey stated he didn't intend to quit ICC, his
actions of turning in his hard hat and flashlight and saying he
"quit" establish that he did, in fact, quit (Tr. 162, 164). -
The screens are cleaned by letting the material hit them
without the water being turned on. The material chips off the
buildup of mud. By proceeding in this manner the miners do not
have to crawl up inside the equipment to remove the accumulations
by hand (Tr. 160). -
The loader incident was when supervisor Brown directed
Ramsey as to how the loader should be operated. Ramsey complained
to Hildebrandt and stated this particular use was an abuse of the
loader teeth (Tr. 246, 247). The crusher incident was the
conflict with Morrison over the pressure dust. -
The MSHA inspection on September 8, 1987, is entitled to
-
Page 21
zero weight because it is not shown how the conditions of that
date related to the conditions on the morning of August 12, 1987.
5. The record in this case is devoid of any facts indicating
ICC intended to force Ramsey to quit on August 13th.
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