Ramsey v. Industrial Constructors Corporation

Plain-English summary

Harry Ramsey alleged that Industrial Constructors Corporation discriminated against him after a dispute about dust, water sprays, and the safe operation of a rock crusher at a gold mine. The ALJ found that Ramsey had engaged in protected safety activity, had been constructively discharged, and had later been denied rehire because of that activity. The Commission reversed, finding that the evidence showed a production-related disagreement rather than protected activity, that Ramsey voluntarily quit rather than being constructively discharged, and that the refusal to rehire lacked a nexus to protected activity. The Commission therefore reversed all of the ALJ's discrimination findings.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The ALJ's findings of discrimination, constructive discharge, and discriminatory refusal to rehire were reversed.
• Key point: A work disagreement about production and control of water sprays did not establish protected safety activity or a sufficient nexus to discrimination.

Full text (FMSHRC public release)

CCASE:
HARRY RAMSEY V. INDUSTRIAL CONTSRUCTORS
DDATE:
19900829
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             August 29, 1990

HARRY RAMSEY

  v.          Docket No. WEST 88-246-DM

INDUSTRIAL CONSTRUCTORS
CORPORATION

BEFORE: Ford, Chairman; Backley, Doyle, and Nelson, Commissioners

              DECISION

BY THE COMMISSION:

In this discrimination proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act"
or Act"), Industrial Constructors Corporation ("ICC"), seeks review of a
decision by Commission Administrative Law Judge John J. Morris sustaining a
complaint of discrimination brought by Harry Ramsey pursuant to section
105(c)(1) of the Mine Act. 1/ In an Interim Order the judge found that
two acts of discrimination by ICC had occurred: the first, when Ramsey was
constructively discharged on August 13, 1987, as the result of a safety
related complaint, and the second, when ICC subsequently refused to rehire
him. 11 FMSHRC 1585 (August 1989)(ALJ). In a final decision ICC was
ordered to pay Ramsey back pay, interest, attorney's fees and costs.
11 FMSHRC 1988 (October 1989)(ALJ). The Commission granted ICC's petition
for discretionary review. For the reasons that follow, we reverse the
judge's decision.

Complainant Ramsey was employed at ICC's Colosseum gold mine,

located near San Bernadino, California, from May 1987 until August 1987.
With both his prior employer and his own company, Ramsey operated and
hired operators of heavy equipment. At ICC, Ramsey initially operated

1/ Section 105(c)(1) provides in pertinent part:

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].

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

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various types of equipment at the mine site and briefly worked as a
laborer. Tr. 24-36. In June or early July 1987, Ramsey was assigned as
a loader operator to ICC's newly established rock crusher operation, but
actually worked as the crusher operator because the individual hired as
the crusher operator failed to appear for work. On July 18, 1987, he was
reclassified by the foreman, Clifford Morrison, from loader operator to
crusher operator with a pay increase. Exh. C-2, Tr. 37-38, 155.

As a crusher operator Ramsey was located in the control tower, an

8'x8' building, 20 feet in height with windows on all sides, affording the
operator a view of the working area. Tr. 40-42, Exh. C-3. The duties of
the crusher operator were to monitor and insure the continuous flow of
material (rock) into and out of the hopper and to shut down the crusher
whenever the hopper became blocked up or when a problem with the conveyor
belt arose. Tr. 38-40, 44.

 Ramsey testified that under normal procedures, when the mechanic or

the foreman noticed a buildup of material, they would inform him by hand
signal of the problem. Ramsey, under the foreman's or mechanic's
instructions, would then alert the three or four workers in the area,
first by a horn signal, as a general alert, and then by hand signals,
directing them to the specific problem area. When all workers were in
view, the machinery was then shut down, and the blockage or spillage could
then be safely removed. Tr. 38-40, 44-45. From a designated area the
mechanic or foreman would also inform him by hand signals when they wished
him to shut off the water spray system, which primarily controlled dust
during production and at times was used to increase the moisture content of
the material being processed. Tr. 47. It is undisputed that standard
operating procedure, shortly before the end of each production shift, was
to clean the buildup of mud from the screens by turning off the water
sprays while keeping the crusher running, thus allowing the dry material to
hit the screens, chipping away the mud. Tr. 55, 160.

On August 12, 1987, Ramsey worked the swing shift, which began about

4:00 p.m. and ended about 2:00 a.m. the next morning. Ramsey testified
that about 45 minutes before the end of the shift while in production
crushing rock, foreman Morrison gave him a hand signal from the work area
to shut off the water sprays. Ramsey initially failed to comply,
explaining that this was the first shift since the operation had started
that they had "run full production all night"; that production "had been
running smooth all night"; that "we had a heck of a stockpile of material
out there"; and that he was not anticipating any shut down with 30 to
45 minutes production time still remaining before their normal shut down
time. Tr. 45-46.

Page 4

When Morrison, after a minute or two, "gave me a real strong signal

again to shut it off," Ramsey then did as directed. Tr. 44-47, 123-24.
According to Ramsey, within a few minutes the dust was such that he
"couldn't see the window of the control tower in front of me" and was
unable to see any of the employees. He testified that normal procedure
was to shut down the machinery automatically if the dust was so thick that
you couldn't see at all. Tr. 47-50. After two or three minutes, he shut
down the crusher and he stated that about 5 minutes

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later the dust had cleared sufficiently so that he could see "a little
bit," making out "more or less shadows or whatever the equipment is."
Tr. 52. At that point Morrison climbed into the tower and asked why Ramsey
had "shut the plant down." Ramsey responded that if he could not see after
the water was cut off, he could not operate. According to Ramsey, Morrison
replied "I'll tell you when to shut the water on and when to shut it off."
Tr. 54, 59, 124-26.

 Morrison left the tower and Ramsey restarted the belt for about

five minutes, the normal procedure used to clean off the screens before the
next shift. Tr. 54.56. Ramsey then met Morrison outside the tower where
he again asked if he (Ramsey) had the "latitude" to turn the water on and
off when he could not "see the people under me", and received the same
reply. Tr. 59-61, 120. The conversation continued and Ramsey repeated a
number of times that if he did not have the "latitude" to turn the water
off, "I wouldn't work for him under those conditions," because "it is not
safe." Tr. 60-61, 120. Ramsey testified he meant not working for
Morrison, and that it was not his intention to stop working for ICC.
Tr. 61, 116. The judge found, however, that turning in his hard hat and
flashlight and saying he "quit" established that he did quit. 11 FMSHRC
1589. At about 10:00 a.m. that same day, Ramsey telephoned mine
superintendent Orville Hildebrandt to inform him of the events and was told
by Hildebrandt that he would check into it and get back to him. About one
week later, during which Ramsey did not work, he was told by Hildebrandt's
secretary that there was no work available for him. Tr. 65-69. Ramsey
testified that he has continuously but unsuccessfully sought employment
based on his work experience, sending out 60-70 resumes or applications.
Tr. 81-84. He has worked at other jobs, operating an unsuccessful novelty
sales company, managing a mobile home park, and working as a "ranger" at a
golf course. Tr. 87-89. On cross-examination Ramsey stated that his
understanding with respect to being hired by ICC was that his employment
was to be continuous during a three-year project, but that there was no
specific agreement on that issue. Tr. 112.

 ICC Supervisor Morrison testified that ten or fifteen minutes before

the end of the shift on August 13, he signaled Ramsey to turn off the water
sprays in order to clean the screens. He had personally insured the safety
of all employees by gathering them together with him or in the parts van,
and that all could be seen by Ramsey. Tr. 160-61, 178-79. After turning
off the water, Ramsey also turned the crusher off. Tr. 160. Morrison also
testified that Ramsey had authority to shut down if the employees could not
be seen by him. Tr. 160-61. Morrison believed the disagreement with
Ramsey was over the authority to shut off the water, not to shut down the
crusher. Tr. 162. He stated that outside the tower Ramsey handed him his
hard hat and flashlight and said he quit, and that Morrison then said

Page 6

nothing, but walked away. Tr. 162. He stated there was never any dispute
that Ramsey had authority to shut down the crusher for safety reasons.
Tr. 163. In his opinion, visibility that night never reached a dangerous
extent, and he could always see Ramsey in the tower. Tr. 165-66.

Dick Nash, ICC personnel manager, testified that the crusher
operations were completed in September 1987, and that Morrison, together

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with everyone on the crusher night shift, was terminated on September 25,
1987, and everyone on the day shift, one day later. Tr. 200-03. Mine
Superintendent Hildebrandt testified that he decided not to rehire Ramsey
because of the August 12 incident and because of an earlier incident in
which Ramsey had complained to him and threatened to quit in a disagreement
with another supervisor about the correct method of using the bucket on a
loader so as to not damage the equipment. Tr. 246-48.

 On August 30, 1987, Ramsey filed a complaint of discrimination with

the Department of Labor's Mine Safety and Health Administration ("MSHA"),
and on June 14, 1988, the Secretary of Labor filed a discrimination
complaint on behalf of Ramsey pursuant to 30 U.S.C. 815(c)(2). On
October 20, 1988, counsel for the Secretary moved to dismiss that complaint
and to permit Ramsey to file a complaint on his own behalf, pursuant to
30 U.S.C. 815(c)(3), on the grounds that Ramsey had refused to accept a
settlement offer considered reasonable by the Secretary. Following
retention of counsel by Ramsey, the judge, on January 23, 1989, granted
the Secretary's motion and the matter proceeded to hearing. 2/

In upholding Ramsey's complaint of discrimination, the judge found

that Ramsey was engaged in a protected activity when he complained to
Morrison about the dusty conditions, which precluded him from seeing the
workers in proximity to the crusher, and concluded that "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." 11 FMSHRC at 1595. Quoting extensively from
Ramsey's September 15, 1987 statement to MSHA investigators, the judge
found a good faith concern for the safety of other miners and a nexus
between his complaint and possible injury to others. 11 FMSHRC at 1595-98.
As to whether Ramsey communicated his complaint to management, the judge
concluded:

            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).

Id. at 1598.

Next, the judge found that Ramsey was constructively discharged in

that "ICC created or maintained conditions so intolerable that a reasonable
miner would have felt compelled to resign," which is the standard of law
applied to constructive discharge under Simpson v. FMSHRC, 842 F.2d 453

Page 8

(D.C. Cir. 1988). Further, the judge rejected

2/ The judge's granting of the Secretary's motion effectively converted
the complaint to an action brought pursuant to 30 U.S.C. 815(c)(3).

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ICC's reasons for not rehiring Ramsey and held that he was discriminated
against a second time when ICC refused to rehire him. 11 FMSHRC
at 1599-1600. Lastly, rejecting ICC's contention that Ramsey along with
all other crusher employees would have been terminated on September 27,
1987, the judge awarded back pay with interest from August 13, 1987, to
August 31, 1989, when Ramsey declined reinstatement under an agreement
between the parties. 11 FMSHRC at 1603.

 A miner alleging discrimination under the Act establishes a prima

facie case of prohibited discrimination under the Mine Act by proving that
he engaged in protected activity and that the adverse action complained of
was motivated in any part by that activity. Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC at 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 the 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 alone and would have taken the adverse
action in any event for the unprotected activity. Pasula. supra; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987);
Robinette, supra; Donovan v. Stafford Constr. 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).

At issue before us here is a work refusal based on an asserted safety

hazard to miners other than the complainant himself. In Secretary on
behalf of Philip Cameron v. Consolidation Coal Co., 7 FMSHRC 319 (March
1985), aff'd sub nom Consolidation Coal v. FMSHRC, 795 F.2d 364 (4th Cir.
1986), the Commission held that "in certain limited circumstances," the
protection of section 105(c) of the Mine Act does attach to a work refusal
premised on hazards to others:

            Therefore, we hold that a miner who refuses to
  perform an assigned task because he believes that to
  do so will endanger another miner is protected under
  section 105(c) of the Mine Act, if, under all the
  circumstances, his belief concerning the danger posed
  to the other miner is reasonable and held in good
  faith. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411,
  1418 (June 1984), citing Secretary on behalf of
  Robinette v. United Castle Co., 3 FMSHRC at 807-12.
  We emphasize, however, the need for a direct nexus

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between performance of the refusing miner's work
assignment and the feared resulting injury to another
miner. In other words, a miner has the right to refuse
to perform his work if such refusal is necessary to
prevent his personal participation in the creation of
a danger to others. Of course, as with other work
refusals, it is necessary that the miner, if possible,
"communicate,

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or at least attempt to communicate, to some
representative of the operator his belief in the ...
hazard at issue," Sammons v. Mine Services Co.,
6 FMSHRC 1391, 1397-98 (June 1984)(emphasis added),
quoting Secretary on behalf of Dunmire and Estle v.
Northern Coal Co., supra, 4 FMSHRC at 133, and that
the refusal not be based on "a difference of opinion
--not pertaining to safety considerations--over the
proper way to perform the task at hand." Sammons,
6 FMSHRC at 1398.

7 FMSHRC at 324.

Our review of the testimony convinces us that the substantial

evidence of record does not support the judge's conclusion that Ramsey was
engaged in protected activity on August 13, 1987. As this Commission has
consistently recognized, the term "substantial evidence" means "such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." See, e.g., Secretary v. Michael Brunson, 10 FMSHRC 594, 598
(May 1988), Secretary v. Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1137
(May 1984) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). We are guided by the settled principle that in reviewing the whole
record, an appellate tribunal must also consider anything that "fairly
detracts" from the weight of the evidence that may be considered as
supporting a challenged finding and must not sustain a finding "merely on
the basis of evidence which in and of itself justified it, without taking
into account contradictory evidence or evidence from which conflicting
inferences could be drawn ..." Universal Camera Corp. v. NLRB,
340 U.S. 474, 487 (1951).

Ramsey, himself, on direct examination twice testified unequivocally

that he initially refused and then reluctantly complied with Morrison's
signals to turn off the water sprays solely because he thought production
was going so well, that a large amount of material awaited crushing, and
that he considered it too early in the shift to cut off the water sprays,
which was routinely done shortly before the end of each shift in order to
clean the screens. Ramsey also testified that under Morrison's
instructions whenever a potential problem or safety hazard arose, Ramsey
would alert the employees first by a horn signal, then by hand signals,
directing them to an area where they could be observed by him. Tr. 38-40
44-45. If, despite his testimony, Ramsey's reactions to Morrison s signals
were safety related, we find it inconsistent that he did not use the
established audio and visual signals to alert the employees and ensure
their safety before any dust visibility problem arose.

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The testimony of both Ramsey and Morrison at hearing consistently

identified the basis of Ramsey's complaint as his "latitude to turn the
water on or off." The testimony further establishes that Ramsey's
authority to turn off the crusher for safety related concerns was not
challenged. Unlike the judge, we place little reliance on Ramsey's
September 15, 1987 statement to MSHA investigators quoted extensively in
the decision at 1195-97. We view Ramsey's statement as unproved

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allegations made in support of his discrimination complaint, and we
consequently cannot accord it sufficient weight to overcome his contrary
testimony adduced under oath at the hearing subject to the rigors of
cross-examination.

In Sammons, supra, this Commission emphasized that in discrimination

complaints involving work refusal, the alleged protected activity must not
be based on a "difference of opinion--not pertaining to safety
considerations--over the proper way to perform the task at hand." 6 FMSHRC
at 1398. Ramsey's own testimony makes clear that his initial refusal and
later reluctance to shut off the water sprays were entirely production
oriented. He simply believed it too early in the shift, with production
going well and a large stockpile of raw materials yet to be processed, to
stop production in order to clean the screens for the oncoming shift. In
light of his own testimony, we view Ramsey's subsequent attempts to link
his work refusal with safety related concerns to be too little, too late,
and inconsistent with the facts. Accordingly, under Cameron. supra, we
find that Ramsey s work refusal was not a protected activity under section
105(c) of the Mine Act.

For these same reasons we find that Ramsey failed to communicate to

Morrison any true concern with a safety hazard underlying his work refusal.
In so concluding, we recognize that as the judge noted, safety complaints
are often couched in a heated or argumentative manner, and that a brief,
simple communication rather than a detailed statement is sufficient, so
long as it describes the nature of the safety hazard to the operator. See
e.g., Secretary/UMWA v. Emerald Mines Corp., 8 FMSHRC 1066, 1074, (July
1986), aff'd sub nom. Emerald Mines Co. v. FMSHRC, 829 F.2d 31, (3rd Cir.
1987). In this instance however, there was no communication descriptive of
a safety complaint but only a heated disagreement with a supervisor over
Ramsey's "latitude" to shut the water on and off and who would make the
decision to stop production. See also Conatser v. Red Flame Coal Co.,
Inc., 11 FMSHRC 12, 17, (January 1989).

We next address the judge's conclusion that Ramsey was constructively

discharged. In Simpson, supra, the court adopted the "objective" standard
for establishing constructive discharge, holding that constructive
discharge occurs whenever "a miner engaged in a protected activity can show
that an operator created or maintained conditions so intolerable that a
reasonable miner would have felt compelled to resign." 842 F.2d at 461.
That standard, the court explained, is the one employed in cases arising
under the Civil Rights Act of 1964 and is the same test employed in
adjudicating constructive discharge cases under other statutes protecting
employees against adverse job actions. 842 F.2d. at 461-62. The cases
cited by the court in Simpson agree that a finding of constructive

Page 14

discharge must demonstrate "aggravating factors such as a continuous
pattern of discriminatory treatment." Watson v. Nationwide Insurance Co.,
823 F.2d 360, 361 (9th Cir. 1987); Clark v. Marsh, 665 F.2d 1168, 1174
(D.C. Cir. 1981). The cases also have consistently emphasized that "a
single isolated instance of employment discrimination is insufficient as a
matter of law to support a finding of constructive discharge." Watson,
supra, 823 F.2d at 361; see also Satterwhite v. Smith, 744 F.2d 1380,

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1381, (9th Cir. 1984); Nolan v. Cleland, 686 F.2d 806, 813; (9th Cir.
1982).

In Simpson, the complainant quit his job after the operator had

failed repeatedly over a period of several weeks to perform the required
pre-shift or on-shift examinations or to test for the presence of black
damp, gas, or water in the underground coal mine. The Commission referred
to the operator's repeated failures as "blatant violations of the Mine
Act," (8 FMSHRC at 1038) a description noted by the court in its finding
that Simpson had been constructively discharged. 842 F.2d at 463.

 Although the judge stated in his decision that he felt constrained

under the Court's holding in Simpson to reach a finding of constructive
discharge, we find no parallel between the working conditions involved in
Simpson and the conditions of August 13 described by Ramsey in this case.
Nor do we see any similarity between the continuous pattern of misconduct
on the part of the operator in Simpson and the single incident on which
this case rests. In sum, we are persuaded by the testimony of record that
Ramsey voluntarily quit his job at the end of the shift and find no
evidence to support a finding that a reasonable miner would have felt
compelled in this instance to resign because of intolerable conditions
created or maintained by operator misconduct as required under Simpson for
a finding of constructive discharge.

On review, ICC also challenges the judge's finding that a second act

of discrimination occurred when ICC refused to rehire Ramsey after August
13, 1987. If Ramsey's work refusal constituted protected activity under
the Mine Act, ICC's refusal to rehire him would be a second unlawful act of
discrimination if the evidence demonstrated that the refusal was based on
that protected activity. Simpson, 842 F.2d at 454, 464. If Ramsey's work
refusal did not constitute protected activity, ICC's refusal to rehire him
would be discriminatory only if the evidence established "some nexus to
protected activity." 842 F.2d at 464. Rejecting ICC's arguments that
Ramsey was not rehired because of two non-safety related disagreements with
supervisors, the judge found that the incident of August 13, 1987 involved
protected activity and that ICC's refusal to rehire Ramsey was therefore a
second act of discrimination.

Because we have found that Ramsey's work refusal of August 13 was not

a protected activity, a finding of discriminatory conduct in ICC's refusal
to rehire him must rest on evidence establishing "some nexus" with other
protected activity. Other than the August 13 incident, however, no other
protected activity is alleged. As the judge noted at 11 FMSHRC 1593, n. 3,
Ramsey's earlier complaint to Hildebrandt alleged that supervisor Brown's
instructions as to how the loader should be operated would result in damage

Page 16

to the equipment and was not safety related. Absent any nexus with other
protected activity, we find no evidence to support the judge's finding that
ICC discriminated against Ramsey for a second time when it refused to
rehire him.

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Accordingly, we reverse the judge's findings that Ramsey engaged
in protected activity and was constructively discharged. We also reverse
his finding that ICC's refusal to rehire Ramsey constituted a second act of
discrimination. 3/
L. Clair Nelson, Commissioner

3/ Commissioner Lastowka elected not to participate in this decision.

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Distribution

Michael T. Heenan, Esq.
Ronald E. Meisburg, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Suite 400
Washington, D.C. 20005

William T. Murphy, Esq.
Washington Corporations
101 International Way
Missoula, Montana 59802

Norman J. Reed, Esq.
Nathaniel J. Reed, Ltd.
1405 S. Maryland Pkwy.
Las Vegas, Nevada 89104

Administrative Law Judge John J. Morris
Federal Mine Safety and Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, Colorado 80204