Fred L. Peters v. Twentymile Coal Company, Daryl Firestone, and Cyprus Minerals Company
Fred L. Peters v. Twentymile Coal Company, Daryl Firestone, and Cyprus Minerals Company (FMSHRC WEST 92-311-D): Discrimination complaint dismissed
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Fred Peters alleged that Twentymile Coal Company and its supervisors discriminated against him after he reported shuttle-car brake, ventilation, and electrical problems and later complained to MSHA. Judge John J. Morris found that Peters engaged in protected activity but that the disciplinary letter and other challenged actions were not motivated by those complaints. The judge credited evidence that the actions were based on performance and workplace conduct, and found no hostility or disparate treatment. He dismissed the complaint, including the claim against Cyprus Minerals for lack of proof of its status.
Decision snapshot
- Governing provisions: 30 U.S.C. § 815(c)(1) and § 815(c)(3)
- Outcome: The discrimination complaint was dismissed.
- Key point: Protected safety complaints do not establish discrimination when the challenged discipline was supported by credible non-protected reasons and there was no hostility or disparate treatment.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268
April 16, 1993
FRED L. PETERS, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 92-311-D
v. :
: DENV DC 91-02
TWENTYMILE COAL COMPANY, :
DARYL FIRESTONE and :
CYPRUS MINERALS COMPANY, :
Respondents :
DECISION
Appearances: Patricia Jo Stone, Esq., Lakewood, Colorado,
for Complainant;
Stanley R. Geary, Esq., Pittsburgh, Pennsylvania,
for Respondents.
Before: Judge Morris
This case involves a discrimination complaint filed by Fred
L. Peters against Respondents Twentymile Coal Company, Daryl
Firestone and Cyprus Minerals Company, pursuant to the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., (the
"Act").
A hearing commenced in Denver, Colorado, on December 8,
-
The parties filed post-trial briefs.
Section 105(c)(1) of the Act provides, in part, as follows: No person shall discharge or in any manner discriminate against or cause to be dis- charged 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 be- cause 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 representa- tive of the miners at the coal or other mine of an alleged danger or safety or 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 for employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act. APPLICABLE CASE LAWThe general principles governing analysis of discrimination
cases under the Mine Act are settled. In order to establish a
prima facie case of discrimination under section 105(c) of the
Mine Act, a complaining miner bears the burden of proof to
establish that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other
grounds sub nom. Consolidated Coal Co. v. Marshall, 663 F2d 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 protect-
ed activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot rebut
the prima facie case, 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 F2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Constr. Co., 732 F2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's Pasula-
Robinette test). Cf. NLRB v. Transportation Management Corp.,
462 U.S. 393, 397-403 (1983) (approving nearly identical test
under National Labor Relations Act.)Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510-11 (November 1981), rev'd on other grounds sub
nom., Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June
1984). As the Eighth Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir. 1965):It would indeed be the unusual case in which the link
between the discharge and the (pro-tected) activity
could be supplied exclusive- ly by direct evidence.
Intent is subjective and in many cases the
discrimination can be proven only by the use of
circumstantial evidence. Furthermore, the (NLRB) is
free to draw any reasonable inferences.Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:As we emphasized in Pasula, and recently re- emphasized in Chacon, the operator must prove that it would have disciplined the miner any- way for the unprotected activity alone. Or- dinarily, an operator can attempt to demon- strate this by showing, for example, past discipline consistent with that meted to the alleged discriminatee, the miner's unsatis- factory past work record, prior warning to the miner, or personnel rules or practices forbidding the conduct in question. Our function is not to pass on the wisdom or fairness of such asserted business justifi- cations, but rather only to determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed. SUMMARY OF THE EVIDENCE BACKGROUNDFRED L. PETERS of Steamboat, Colorado, presently works in
the electrical department of Twentymile Coal Company. He is
working under temporary status and he has been there for over
three years.Mr. Peters has been a production foreman, a longwall utility
foreman (hourly), and a shuttle car operator. Prior to his
employment at Twentymile he was a mine superintendent for Western
Fuels for over five years as well as a surface superintendent.
He has also served as a fire boss for Mid-Continent Resources.
In addition, he has worked in southwestern Pennsylvania. He has
been a miner since 1971 and is familiar with MSHA's operations.
In the spring of 1991 Mr. Peters (sometimes called Fred) was
working as a shuttle car operator for Daryl Firestone, the face
boss. Other employees included Jim Conner and employees Harri-
son, Turnipseed, Meckley, Stewart, and Williams.
In May 1991 they were working between sections as they were
opening up a new longwall section.
In June 1991 Mr. Peters operated two different types of
shuttle cars and in early June 1991 he was operating the No. 4
shuttle car.
The No. 4 car is a DC car and the overloads on the car kept
kicking out. The heaters would kick on and this would occur
three times a trip and usually once on a return. When it kicks
out, the electrical controls on the car fail and the service
brakes automatically engage. The service brakes would not hold
this DC car. In addition to these problems, the No. 4 car also
had loose bolts.
Mr. Peters reported this to Mr. Firestone and the mainten-
ance foreman was told to look into it before the shift started.
They said they were working on it, but they still used the same
car.
Mr. Peters also became concerned about the air in the entry.
It was necessary to turn off the ventilation tubes. If a door
was not totally closed, air would recirculate in the face. Mr.
Peters talked to Mr. Firestone and the mine manager about this.
They also tried to put buffers behind the fans in an attempt to
correct the problem. Mr. Peters reported this to Mr. Firestone
because he was his supervisor. These conditions were not cor-
rected before June 10, 1991.
On a Monday or Tuesday in June Mr. Peters was given a letter
after he discussed the air recirculation and the brakes with Mr.
Firestone. Mr. Peters said maybe he should shut the car down and
Mr. Firestone replied that he should give him an unsatisfactory
job performance. Mr. Firestone and Mr. Peters discussed the mat-
ter for approximately three hours and Mr. Peters thought they had
the problem resolved. Mr. Firestone said that when he received a
promotion he would take care of Mr. Peters' problems.
On Monday Mr. Firestone said he had talked to Steve Rosene
and they were going to give him a letter anyway. He received the
letter the next day. Management did not ask him his side of the
issue. Because of that Mr. Peters felt MSHA was his only
recourse.
The "second advisory" letter Mr. Peters received was dated
June 10, 1991. The letter refers to Mr. Peters' "unacceptable
job performance." The letter was signed by Daryl Firestone and
acknowledged by Fred Peters on June 11, 1991 (see Exhibit C-1).
Mr. Peters had never received any first step letter. (The
letter was stated to be a "second advisory.") Mr. Peters
believes he didn't merit the letter.
On June 12 Mr. Peters went to work and he noticed the bolts
were loose in the brakes. He and the section mechanic tightened
them and he operated the car for two to three hours. About 7:30
or 8:00 o'clock while going uphill he lost the tram, the brakes,
and the shuttle car rolled backwards and came to an abrupt stop.
Mr. Firestone called the maintenance people so they could resume
production. Mr. Peters didn't think he was injured. He told Mr.
Firestone he had pulled some muscles in his lower back and they
returned to mining coal.
Mr. Peters signed up to work through his scheduled vacation.
While drilling into the floor he asked the safety representative
if Mr. Firestone had ever filled out an accident report. They
could not find such a report, and in July, after vacations, Mr.
Firestone said he had not filled out such a report. The follow-
ing night Mr. Firestone handed him an accident report form and
told him to fill it out.
Mr. Peters went to a doctor and received therapy and an MRI;
a ruptured disc was later removed.
Exhibit C-2 is Mr. Peters' handwritten complaint to MSHA.
Mr. Peters felt he had been discriminated against because of
the letter given him by the company (Exhibit C-1). Mr. Peters
thought the issues had been worked out in the three hour talk
with Mr. Firestone.
When Mr. Peters made his complaints to Mr. Firestone, he had
the company policies in mind and he felt he should tell his
supervisor of any problems. He did not feel that the company was
complying with the third paragraph of its safety and health
policy statement which provides:
We hold every employee accountable for
following all prescribed safe work practices
and procedures. No job will be considered so
urgent--no schedule will be considered so
rigid that the time cannot be taken to per-
form the job in a safe manner.
With respect to the shuttle car, the company did not follow
its policy. However, an operator does not shut down a piece of
equipment on a production shift and Mr. Peters was told to run
the shuttle car.
MSHA investigated Mr. Peters' discrimination claim. MSHA
found no discrimination and so advised Mr. Peters (Exhibit C-5).
Mr. Peters felt threatened for his job at the mine. Different
management people said maybe they could hurt their back and sit
in the guard shack.
After disc surgery Mr. Peters returned and initially worked
for the safety department and later in the electrical department.
As his back improved, he did more and more underground work and
he has continued to work in the electrical department.
Before the accident occurred Mr. Peters was a full-time
shuttle car operator and now there is a possibility that he could
be transferred to a job he could not do.
Company policy does not allow overtime when a person works
on light duty status. In 1992 Mr. Peters' overtime lost wages
came to about $2,500. In 1991 he lost approximately $21,406 in
overtime. In Mr. Peters' view, if Mr. Firestone had heeded his
complaints an accident would not have occurred.
Mr. Peters seeks the following relief: Recovery of loss of
overtime wages, attorney's fees and costs, and assignment to a
permanent position to a crew he's not on at this time.
Mr. Peters is more experienced in mining matters than Mr.
Firestone.
In July 1990 he received a letter of congratulations from
the company.
In October 1990 the company referred him to an alcohol abuse
counselor.
The pivotal portion of this case generally deals with the
events of April 23, 1991, May 3, 1991, June 6, 1991, June 7,
1991, June 8, 1991 and June 12, 1991.
On the credibility issues surrounding these dates I credit
the testimony of Daryl Firestone. His testimony is supported by
almost contemporaneous notes of the events.
In considering this evidence I have outlined Respondents'
evidence and footnoted Complainant's evidence.
According to Mr. Firestone when Fred Peters started on Mr.
Firestone's crew his performance was good and they got along
well. (Tr. 225).
When Mr. Peters began using alcohol his performance started
to drop. Mr. Firestone discussed Mr. Peters' performance with
management, mostly the shift supervisor. He also discussed Mr.
Peters' performance with Mr. Rosene.
On April 23, 1991 Gary Harrison said Mr. Peters' shuttle car
had broken down. Gary said that on the last trip Mr. Peters was
crowding he and Allen on the high side, i.e. he was pushing them
tight to the rib. (Tr. 238, 239). It sounded like horseplay to
Mr. Firestone. Gary and Mr. Peters hollered at each other. Gary
then told Mr. Firestone that Mr. Peters had backed up and slammed
into the miner as hard as he could with the shuttle car, putting
the lights out. (Tr. 239).
At that point Mr. Firestone went back to the shuttle car to
locate Mr. Peters. Mr. Firestone told Mr. Peters what Gary had
said. Further, he said Allen (Meckley) had backed him up. Mr.
Peters got real defensive and started hollering at Mr. Firestone.
He told him he was calling him a liar because he was insisting
his tram had stuck. (Tr. 239). Mr. Firestone was pushing the
issue that Mr. Peters was crowding Allen and Gary. In addition,
they had words. Mr.Firestone and Mr. Peters again had words;
nothing was resolved and the car was down for 45 minutes. (Tr
239, 240).
Mr. Firestone described how in a small space miners can be
crowded against the ribs. Mr. Firestone considered Mr. Peters'
conduct an unsafe act and basic horseplay. He also believed Mr.
Peters' hollering at him was insubordination.(Footnote 1)
On May 3, 1991 Gary (Harrison) complained that the shuttle
car operators weren't helping them move from place to place. Mr.
Firestone called a meeting between the miner operators and the
shuttle car operators. Mr. Firestone flagged Ross and he got
out. Fred kept going. Upon being flagged again he stopped. Mr.
Peters got real defensive. He approached the four men: Conner,
Gary Harrison, Ross Stewart and Mr. Firestone. Mr. Peters became
defensive and he was hollering at Mr. Firestone and at Gary. He
told Gary that he was "the laziest, sorriest shuttle car operator
he'd ever seen in his life." (Tr. 242).
During this time Mr. Firestone was trying to calm Fred down.
At the time he considered taking Fred outside but it was about
five minutes to quitting time. If Mr. Firestone had taken Mr.
1 Mr. Peters testified he was not aware of any complaint. But he admits he
might have had words with Gary and possibly Mr. Firestone. When Mr. Firestone
asked him what happened he said the tram stuck on the shuttle car. This was
the only time they ever talked about the way he operated the shuttle car.
(Tr. 49, 50). I am not persuaded by Mr. Peters testimony. It is considerably
short of unequivocal.
Peters outside the crew would have been waiting underground for
him. Also Mr. Peters had calmed down.
Taking him "outside" means Mr. Firestone would call the
shift supervisor and tell him why he was taking such action.
(Tr. 242, 243).
The next morning Mr. Peters immediately apologized and Mr.
Firestone didn't feel it was necessary to take Mr. Peters to the
supervisor's office.(Footnote 2) (Tr. 243).
On June 6, 1991, Mr. Firestone and Mr. Peters met to review
performance appraisals. Such appraisals are reviewed with each
individual employee and supervisor. The evaluation was for the
last six months of 1990, Daryl indicated it was a good evaluation
but for the period in 1991 to June 6, 1991, he had some perfor-
mance problems with Mr. Peters. Mr. Firestone told Fred his per-
formance (in 1991) was not up to par and it wasn't acceptable.
They discussed the hollering incidents. Fred agreed his perfor-
mance was not up to par. It was a good meeting.(Footnote 3)
(Tr. 243, 244).
The following day, June 7, Daryl was shorthanded a roof
bolter and a new man (Phil) came in to run the bolter. Mr.
Peters talked to Phil, telling him to run the shuttle car and he
(Fred Peters) was going to bolt. Mr. Firestone told Mr. Peters
that Phil was going to bolt, that he wanted him to learn and he
(Mr. Firestone) was going to train him. (Tr. 245).
Mr. Firestone didn't say so to Mr. Peters but he wasn't
going to reward him by letting him do any job he wanted for that
day.(Footnote 4) (Tr. 245).
Fred was mad. He said he wasn't going to run that shuttle
car and he was "shutting it down because of the brakes." (Tr.
2 Mr. Peters remembered this incident when Gary complained to Mr.
Firestone about the shuttle car operators not helping. A meeting was called
between Ross, Fred, Jim and Gary.
He further agrees Gary, Daryl and Fred were talking in a heated
tone of voice but he denies putting Mr. Firestone down in front of the crew.
In addition he does not remember apologizing. Mr. Peters does not deny the
main elements of the May 3 events.
3 Mr. Peters testified he had an attitude problem and it was in direct
relationship to the way things were being run. (Tr. 52). During that
discussion Mr. Peters agrees that Mr. Firestone might have told him that his
performance was not up to par. (Tr. 53). I am not persuaded by Mr. Peters'
less than positive testimony.
4 Mr. Peters didn't remember the roof bolter incident. (Tr. 54).
245). Mr. Firestone said "fine." Right at hand was Dean Smith,
the graveyard mechanic. Mr. Firestone told Dean to go with Mr.
Peters and to work on the brakes until Mr. Peters was comfortable
enough to run with it. At that point Dean and Fred were working
on the brakes. (Tr 245, 246). They were bleeding the brakes and
pulling the equipment forward and backwards. At this time Jim
(Lewis) told Mr. Peters he was walking behind him. When Jim made
the statement Mr. Peters started to tram towards him. This
scared Jim and he hollered for Mr. Peters to watch out. Jim had
said to turn your lights on in the direction of travel. Mr.
Peters got real defensive with Jim and hollered back "fuck you."
Jim walked away and went to Mr. Firestone to complain.(Footnote
5)
Later that day Mr. Firestone stopped Mr. Peters. Mr. Fire-
stone wasn't real stern. Mr. Peters explained to Mr. Firestone
the same thing that Jim had discussed. Mr. Firestone asked Mr.
Peters not to holler or swear profanities at other employees. As
foreman he didn't. Mr. Peters agreed and he apologized to Jim
later that day. (Tr. 246, 247).
On June 8, 1991, the crew came into the section following
the bull gang crew. The bull gang crew hadn't gotten all their
work done. Mr. Peters' cable wasn't hung and the arc bar wasn't
up. Mr. Peters hung the cable anchor but couldn't make one trip
because he was running over his cable. Mr. Firestone asked Mr.
Peters if they were going to have to drop the anchor and rehang
the cable. Mr. Peters said he wasn't going to do it because he
had just finished it.(Footnote 6)
Fred was aggravated. Mr. Firestone told Mr. Peters the work
had to be done. Mr. Firestone discussed taking him "outside."
They, that is, Mr. Peters, Mr. Firestone, and Clyde Bower,
continued working hanging the cable. Mr. Peters complained
5 Mr. Peters recalled a "near miss" when Jim came around a corner. Mr.
Peters told him he needed to watch where he was going. He and Jim had an
argument and he possibly told Jim to "fuck off." (Tr. 55).
6 Mr. Peters denies that Mr. Firestone asked him to hang cable because it
hadn't been hung by the down shift. (Tr. 56). Mr. Peters said he didn't have
enough cable. He told Mr. Firestone that if he'd anchor his cable back there
I'm going to run over it. Mr. Firestone said do it anyway. So he reanchored
his cable and made one try and Mr. Firestone said you are running over your
cable. Mr. Firestone told him to move the cable back. When asked to move the
cable back for the second time he did not refuse to move it but he might have
said "I don't want to." (Tr. 56). Mr. Peters did move the cable; he was
upset because he knew he'd be running over his cable where he was told to
locate it. (Tr. 56, 57).
I credit Mr. Firestone's version of the occurrence. Mr. Peters
somewhat concedes he refused to rehang the cable. This could be considered to
be an act of insubordination to the face boss. His continuing complaints
about the down shift confirm that the downshift had not hung the cable.
constantly about the downshift screwing up. Mr. Firestone said
we get paid for ten hours, let's continue to work. (Tr. 248).
Mr. Peters kept arguing. Mr. Firestone got fed up. Mr.
Firestone said they were going outside to talk to a shift super-
visor. Mr. Peters and Mr. Firestone and superintendent Bob
Deirkes went into the kitchen. They discussed Mr. Peters' pre-
vious performances. Mr. Firestone told Bob he was instituting a
second advisory step and if that didn't do any good then a third
step. (Tr. 249).
Mr. Peters agreed he was not performing but it was because
of the morale of the hourly employees. He was complaining that
the downshift crew was not doing their jobs; likewise, as to the
supervisors. Mr. Firestone said if this would be documented it
was a second advisory. Bob Deirkes and Mr. Peters then had a
discussion. (Tr. 250).
Mr. Firestone went back up to the section. Mr. Peters
followed and said they needed to talk. They talked for two or
three hours about everything including air to bull gang problems.
(Tr. 250).
Mr. Firestone was completely frustrated due to the time he
had been spending with Mr. Peters. They talked for three or four
hours but didn't accomplish anything except they weren't holler-
ing at each other when it was over. (Tr. 250). Both men agreed
they could do better at communication. Mr. Peters didn't want to
go to the second step. Mr. Firestone didn't give Mr. Peters any
indication the second step letter wasn't going to happen. (Tr.
25).
On June 9 Mr. Peters called Mr. Firestone at home and wanted
to know if he had talked to Steve Rosene. (Tr. 252, 253).
Mr. Firestone prepared a rough draft of the second-step
letter. He and Steve Rosene and Bob Deirkes went over it. (Tr.
253).
The second advisory letter, dated June 10, 1991, was
received by Mr. Peters on June 11, 1991. (Ex. C-1).
The parties presented evidence of events that occurred on
June 12, 1991. On that occasion bolts were tightened on the
shuttle car brakes. Four bolts held the rotary in place. The
mechanic said the rotor needed to be changed out. Mr. Peters did
not know the equipment would break. When the part broke, he was
going upgrade and the car then rolled backwards. He did not hit
the panic bar on the shuttle car. As a result of the accident,
he did not feel he had a serious injury.
Mr. Firestone was in the area but did not see the parts
break on No. 4 shuttle car. Mr. Peters told Mr. Firestone that
he had pulled a muscle.
On June 12 Mr. Peters told Mr. Deirkes that he wanted off
the shuttle car; he didn't remember telling him that he had hurt
his back. Mr. Peters did not know if he had received a first
step letter.
Since his back injury, Mr. Peters has received hourly wage
increases from Twentymile when there has been a general hourly
increase.
Mr. Peters has not been told by Twentymile that if equipment
is unsafe he is not to run it.
In 1991 there was a period when he did not work because of
back surgery. He also received Workmen's Compensation.
FRANK PAVLISICK of Paonia, Colorado, is employed by the
Western Coal Company as a mechanic. Mr. Pavlisick was employed
by Twentymile from February 1985 to July 1991 as a maintenance
foreman. He and Mr. Peters were on the same crew.
On June 12, 1991, Mr. Pavlisick was called to repair shuttle
car No. 4. He found the side was broken. Also, the drive line
was broken. The witness was familiar with the particular shuttle
car. It was an original in 1985.
Shuttle car No. 4 was not in continuous use but he had
received complaints about the brakes not holding. The resistors
had been bypassed in shuttle car No. 4 and this would cause the
front of the shuttle car to rise up when it started forward. He
testified that when an operator turns in a report that a piece of
equipment is defective, the equipment goes to the maintenance
department. The maintenance department fixes it with the neces-
sary parts.
This car was used and worn out and the brakes had not ever
been totally replaced. To fully repair the brakes, you need time
to get the necessary parts and such a repair could be made in ten
hours.
As maintenance foreman, failure to keep the brakes in repair
could cause loss of control of the car when the brakes failed.
Mr. Pavlisick worked with Mr. Peters until he terminated
with the company. He had never seen Mr. Peters operating the
shuttle car in any way that might adversely affect the brakes.
The equipment should do what is required of it. It is possible
to tram with the brakes engaged and that will damage them.
Mr. Pavlisick would take Mr. Peters on his crew at any time.
Mr. Pavlisick believed there was friction between Mr. Firestone
and Mr. Peters. In his opinion, it was a power struggle and Mr.
Firestone felt threatened by Mr. Peters.
Mr. Pavlisick had never observed Mr. Peters' conduct inap-
propriate or against safety. He was not aware Mr. Peters had
complained about the brakes.
In the chain of command, Mr. Firestone could remove the
shuttle car from service and have it repaired.
Mr. Pavlisick did not see any conduct on the part of Mr.
Peters to justify any reprimand of Mr. Peters.
In Mr. Pavlisick's opinion, the cars should have been taken
out of service or rebuilt; both of the shuttle cars were unsafe
to run.
As maintenance foreman, Mr. Pavlisick's responsibility was
to repair cars that break down during production.
Mr. Pavlisick examined broken parts in the shuttle car. The
metal break had egg-shaped holes. That's why he directed the new
parts be installed. Mr. Pavlisick did not know if the DC car was
designed to hold itself back. At times these cars ran 20 hours
with four hours' maintenance. Mr. Peters had worked for Mr.
Pavlisick but not on a full-time basis and he had never worked
with Mr. Firestone and Mr. Peters for any length of time.
On June 12 the rotor part broke. If Mr. Firestone had seen
the loose bolts, he wouldn't know that they would break on that
particular day.
DOUGLAS W. OGDEN of DeBeque, Colorado, is now a section
mechanic for Powderburn Coal Company. He left Twentymile in
1992. He had started there as a downshift continuous miner
mechanic and transferred to the electrical department. He has
been mining since 1978.
In June 1991 he worked for Frank Pavlisick. On June 12 he
was advised they needed help repairing a shuttle car in two-left.
When he arrived he learned that the shuttle car was the one that
Mr. Peters had been running. The brakes and traction were out
and it was necessary to crawl under the equipment and work under
it. Mr. Ogden explained in detail how the shuttle car brakes and
traction were restored.
The supervisors knew about the problem on the shuttle cars
as it kept coming up on conversation.
It was not part of Mr. Ogden's job function to analyze what
needed to be done on the shuttle cars. He had talked to Mr.
Peters socially and had seen him in the section.
After June 12, 1991, the shuttle car was returned to service
when it was repaired. Mr. Ogden was never fully in charge of
pulling down and repairing the brakes.
The bolt holes that were oblong were replaced. An indivi-
dual would not notice if the bolt holes were tight.
Mr. Pavlisick had the authority to take defective equipment
out of service.
After the repairs were effective, Mr. Ogden thought the
brakes were operational but he believed some risk existed. They
bled the brakes after tightening the bolts.
They would also tram the brakes and if the brakes were
spongy, they would bleed them. As to shuttle car No. 4, they
would report their repairs back to Frank Pavlisick and in a few
days there would again be reports of loose bolts.
DAN GAGON of Craig, Colorado, has been at Twentymile since
March 1984 on the longwall bull gang.
In June 1991 he was a shuttle car operator and he became
acquainted with Mr. Peters. He operated the shuttle car No. 4 on
a different shift.
Prior to June 12, 1991, shuttle car No. 4 had bad brakes and
he reported this condition to the supervisor.
On June 12 he shut the car down because of the brakes and he
tightened the bolts. He was stopping in a safe distance but the
brakes were mushy. He had the same problems both before and
after the repairs. On June 12 he parked shuttle car No. 4 and
refused to run it. The shift mechanic then tightened the bolts
and the brake rotors. Mr. Gagon also talked to the shift super-
visor and the mechanics on the down shift.
After June 12, 1991, the brake rotors were repaired and they
got a little better.
Mr. Gagon has no knowledge of the June 12 accident involving
Mr. Peters. He has run shuttle car No. 4 and No. 5 off and on
since 1984 and the brake rotor broke three times while he was
operating the equipment. For the last two or three years he has
lost the brakes on three occasions.
ROSS STEWART, Craig, Colorado, is now a shuttle car opera-
tor. In 1991 he was on the same crew with Mr. Peters.
Mr. Firestone was his supervisor.
In June 1991 Mr. Stewart drove No. 4 or No. 5 shuttle car.
He didn't see the June 12 accident involving the shuttle car but
he was in the section. He reported the brakes on his car when
they were malfunctioning. These reports were made to the foreman
or the mechanic.
There was a time when Mr. Firestone and Mr. Peters were co-
bosses with Mr. Stewart. Mr. Stewart believed there was some
friction between them.
Mr. Peters was a good worker.
Mr. Stewart believed he was familiar with the company cri-
teria for a Step 1 or Step 2 reprimand. These included unsafe
acts, horseplay, unsafe job conditions, and lack of concern for
safety.
Mr. Stewart agreed that on one occasion Mr. Peters had run
into his shuttle car, and he also had struck his once or twice.
Mr. Stewart complained about Mr. Peters having alcohol on
his breath.
At a meeting of the shuttle car operators, Mr. Firestone and
Mr. Peters yelled, and Mr. Peters criticized Mr. Harrison's per-
formance and some words were said.
In May and June 1991 Mr. Peters complained about the down
shift not doing its share of the work. Alcohol was not involved
in any manner in the May or June 1991 incidents.
RESPONDENTS' EVIDENCE
DARLY FIRESTONE's testimony has been previously reviewed.
STEVE ROSENE has been in the employ of Twentymile Coal
Company since October 1987. He is responsible for the Human
Resources activities.
He has been involved in disciplinary matters for Mr. Peters
since April 1989. He was involved in ten formal contacts,
including a referral for alcohol abuse in 1989-1990 as well as
overall job performance in 1990 and 1991.
Mr. Peters was issued a Step 2 advisory on June 11, 1991.
Mr. Rosene is familiar with the company's corrective action
program. The program is a step program to identify performance
issues which the company tries to resolve.
The steps consist of what is called a first reminder which
takes place between the supervisor and the employee. If there's
no change in the situation, there is a second reminder or advi-
sory step. This involves formal documentation, letters and is
structured towards improvements. It goes in the performance
file. If there is no improvement, then there is a career dis-
cussion advisory where he meets with the employee and summarizes
the problem. The employee is sent home for one day with pay and
the company seeks a commitment by the employee to remedy whatever
may be the problem.
Exhibit R-7 outlines the corrective action counseling guide-
lines that are followed.
There is not necessarily an initial step program; the
company can go immediately to any one of the levels. The gambit
of performance issues include fighting, disruptive activities,
work quality, work quantity, and damaging company equipment.
Miners have been terminated under this program. Mr. Rosene be-
comes involved in the second advisory level.
Mr. Firestone came to him concerning Mr. Peters. Mr. Rosene
had counseled Mr. Peters on work performance, disruption with
crew, and co-worker complaints.
Mr. Rosene was not aware of the air recirculation and shut-
tle car complaints. The fact that Mr. Peters had made safety
complaints did not enter the conversation when the second advi-
sory took place.
Mr. Rosene was aware of Mr. Peters' back surgery and when he
returned to work, he was on restricted duty and the company
required a doctor's report. When Mr. Peters returned, he joined
the electrical group, working mostly on the surface. Mr. Peters
has a permanent restriction, namely a 50-pound lifting limit. In
view of Mr. Peters' restriction, he has not returned to work in
full capacity, although he works full-time in the electrical
department doing day-to-day duties and assisting in the mainten-
ance of the electrical equipment. Mr. Peters requested this
assignment and it was appropriate under the circumstances.
Twentymile has two departments, maintenance and production,
and people are rotated in various subdepartments for training.
In 1991 and 1992 overtime work at Twentymile was handled
through a sign-up system. The company posts a sheet and any
miner can sign up. If he does, he's expected to show up for the
work. Mr. Peters could sign up for electrical work. In the last
two years the company's overtime percentage has been high.
Twentymile has been attempting to cut down its overtime and
limit it to one overtime shift per employee per month. They also
hired additional miners to cut back on excessive overtime. The
overtime percentage is over 10 percent and this was necessary due
to two longwall moves.
Mr. Peters accepted a lead supervisory position and employ-
ees in this category are paid an additional one and a half hours
at time and a half. From December 1989 to July 1990, this was
his work status.
When Mr. Peters first returned to work, the return-to-work
program necessarily restricts his duty and he is limited to 40
hours per week.
Twentymile has a complaint procedure. It's a step proce-
dure. The employee first addresses the problem with his super-
visor and the employee learns of this when he is a new hire. Mr.
Peters would have learned of it at that time.
The second advisory letter of June 10, 1991, given to Mr.
Peters recites "he (Peters) was not up to standard." The given
behavior of Mr. Peters was not as clear as Mr. Rosene would like
it to be, but the specific behavior by Mr. Peters was that he was
not doing his assigned work; his manner of doing work; his
request that miner cable be hung; his unacceptable performance;
his foul language; and his insubordination. These were discussed
with Mr. Firestone and Jody Hampton. Mr. Firestone mentioned the
recirculating air but he did not mention the shuttle car.
The company had no complaints with Mr. Peters about fighting
or about his absenteeism.
Mr. Rosene did not know in what manner Mr. Peters was oper-
ating the shuttle car.
Mr. Peters wasn't given the second advisory letter because
of the air recirculation complaints nor for the shuttle car
complaints.
Mr. Rosene was not aware of Mr. Peters' MSHA complaint (Ex.
C-2) until after MSHA investigated his complaint. When he talked
to Mr. Firestone there was some mention of the air in the sec-
tion. Mr. Rosene did not discuss with Mr. Peters his side of the
story, and his involvement went back to prior evaluations includ-
ing the mandatory referral and Mr. Peters' work performance.
Mr. Rosene did not assume Mr. Peters was at fault and he
talked to other supervisors and mine management. He did not talk
to Messrs. Stewart or Gagon. He talked to Conner but didn't
discuss anything about the brakes. He first learned about
shuttle car No. 4 when Mr. Peters filed his complaint with MSHA
at the end of the June 1991. No report was filed by Mr. Peters
after the accident. The accident involving the shuttle car
losing its brakes was serious and it attracted attention when the
shuttle car shut down. On June 12 nothing was reported to Mr.
Rosene.
After his accident Mr. Peters had surgery on his back and
filed a Workmen's Compensation claim.
On June 12, 1991, the company filed a form entitled "Final
Admission of Liability" with the Colorado Department of Labor
and, in particular, with the Division of Workmen's Compensation
as it related to Mr. Peters. (Ex. C-7).
Mr. Rosene did not talk to Mr. Peters after he learned about
shuttle car No. 4 because he felt it was inappropriate to discuss
the matter with Mr. Peters while MSHA was investigating it.
At a later time he asked Mr. Firestone if shuttle car No. 4
or the air complaints resulted in any action, and he stated they
did not.
COMPLAINANT'S REBUTTAL
Mr. Peters, in rebuttal, indicated that he didn't believe
there was an emergency bar on the shuttle car on June 12, 1991.
Between June 8 and the step letter of June 11, Mr. Peters
believed he had called Mr. Stuckey and stated that he had con-
cerns over safety issues. He stated the mine was being run like
Mid-Continent Resources when he worked there in 1977-1981. He
had told Mr. Firestone about the air problems which were occur-
ring. Mr. Firestone said he would take care of it, but other
concerns were not being taken care of.
The following morning Mr. Peters was driving the mantrap and
Mr. Firestone said it was a performance problem for him (Peters).
He also said Mr. Peters' attitude was real bad and that he wasn't
pulling his share. Mr. Peters agreed he wasn't happy about the
recirculation and the brakes and the kicking heaters some 30 to
40 times a shift; this would engage the emergency brakes.
Prior to the evaluation in June 1991, all previous evalua-
tions of Mr. Peters had been outstanding or excellent. There had
been no alcohol recurrence. The last one was in October 1990.
Having considered the hearing evidence and the record as a
whole, it is appropriate to enter specific findings of facts.
The preponderance of the substantial, reliable and probative
evidence establishes the following:
FINDINGS OF FACT
1. Fred L. Peters is a full-time employee of Twentymile
Coal Company (Twentymile) in the electrical department as a mine
electrician. (Tr. 15, 87).
2. Mr. Peters has held several mine management positions.
(Tr. 48).
3. In May 1989 Mr. Peters was referred by Twentymile to
counseling for alcohol abuse. In July 1990 Twentymile congratu-
lated Mr. Peters on completion of his alcohol abuse counseling.
(Tr. 48).
4. On September 20, 1990 Daryl Firestone and Jody Hampton
counseled Mr. Peters about coming to work under the influence of
alcohol. (Tr. 49).
5. In October, 1990 Mr. Peters was again referred by
Twentymile to counseling for drug abuse. (Tr. 49).
6. Daryl Firestone was Mr. Peters' supervisor in the spring
of 1991. (Tr. 18). Mr. Peters had been temporary foreman of the
same crew before Daryl Firestone. (Tr. 49).
7. In the spring of 1991 Mr. Peters was operating two
shuttle cars, including the No. 4 shuttle car. (Tr. 20).
8. On June 10, 1991 Mr. Peters was issued a second step
discipline letter under Twentymile's corrective action counseling
program. (Tr. 24, Ex. C-1).
9. Mr. Peters filed his complaint of discrimination on
June 15, 1991, because he felt it was the only way to get the
second step discipline letter removed from his file. (Tr. 36,
Ex. C-2).
10. As of May 28, 1992, when Mr. Peters filed answers to
interrogatories the only discriminatory act which Mr. Peters was
complaining about was receipt of the second step letter. (Ex.
R-6).
11. Mr. Peters served on Mr. Firestone's continuous miner
crew. (Tr. 224).
12. There are several events which preceded issuance of the
second step disciplinary letter, each of which would constitute
sufficient business justification for the letter.
13. On April 23, 1991, Mr. Peters was crowding the continu-
ous miner operators with his shuttle car, he was pushing them
tight to the rib. One of the miner operators, Gary Harrison, had
words with Mr. Peters about the crowding. Mr. Peters then backed
up and slammed his shuttle car into the miner, breaking the
lights on the shuttle car. (Tr. 239, Ex. R-8). When confronted
on this matter, Mr. Peters insisted that his tram had stuck. Mr.
Firestone pressed the issue of Mr. Peters crowding the miner
operators. Mr. Peters and Mr. Firestone had words. (Tr. 239-
240, Ex. R-8). By "crowding" the miner operators (who stand
behind the miner and operate it by remote controls) Mr. Peters
was intentionally pushing them towards the rib. (Tr. 240). Such
conduct is unsafe. (Tr. 240).
14. Mr. Peters admits that on April 23, 1991, he ran his
shuttle car into the miner and broke the lights on his shuttle
car. (Tr. 49).
15. Mr. Peters admits that on April 23, 1991, he had words
with Daryl Firestone about the manner in which Mr. Peters was
operating his shuttle car. (Tr. 50).
16. Mr. Peters admits that on the day he ran his shuttle car
into the miner (April 23, 1991) he might have had words with Gary
Harrison about crowding Gary with the shuttle car. (Tr. 50).
17. On May 3, 1991, Gary Harrison, a continuous miner
operator, complained to Mr. Firestone that the shuttle car
operators were not helping move the cable for the continuous
miner. As a result, Mr. Firestone called a meeting of the two
shuttle car operators and two miner operators and himself. (Tr.
24, Ex. R-9). When Mr. Firestone advised Mr. Peters that the
meeting was about helping the miner operators, Mr. Peters became
very defensive and began yelling at Mr. Firestone as he
approached the meeting. Mr. Peters yelled at Mr. Firestone and
had words with Gary Harrison. He told Mr. Harrison that he was
the laziest, sorriest shuttle car operator he had ever seen. Mr.
Peters was insubordinate to Mr. Firestone and he was abusive and
derogatory towards Mr. Harrison. (Tr. 156, 242, Ex. R-9).
18. Mr. Peters admits that on May 3, 1991, he was involved
in a heated argument with Daryl Firestone and Gary Harrison about
the shuttle car operators' unwillingness to assist the continuous
miner operators in moving the trailing cable for the miner. (Tr.
50-52).
19. On June 6, 1991, Mr. Firestone gave Mr. Peters his
performance evaluation for the last 6 months of 1990. (Tr. 244).
During the discussion concerning that performance evaluation, Mr.
Firestone told Mr. Peters that, although the evaluation for the
last 6 months of 1990 was good, Mr. Peters' performance in 1991
was not satisfactory. (Tr. 244, Ex. R-10). Mr. Peters agreed
that his performance was not up to par. (Tr. 244, Ex. R-10).
20. Mr. Peters admits that on June 6, 1991, Mr. Firestone
may have told him that his performance was not up to par.
(Tr. 53).
21. On June 7, 1991, at the beginning of the shift,
Mr. Peters wanted to run the roof bolter because the regular roof
bolter was absent. Mr. Firestone, however, directed Mr. Peters
to run his shuttle car and instructed another employee to run the
roof bolter. Mr. Peters became angry because he was not permit-
ted to run the roof bolter. He then threatened to shut down his
shuttle car because of the brakes. At that time, the graveyard
mechanic happened to be in the area and Mr. Firestone sent the
mechanic with Mr. Peters to make sure the shuttle car brakes were
working properly. While the mechanic and Mr. Peters were bleed-
ing the brakes, Mr. Peters was tramming the car forward and
backward. Jim Lewis told Mr. Peters that he was walking behind
the shuttle car, but Mr. Peters trammed toward Mr. Lewis without
turning on the lights in the direction of travel and scared
Mr. Lewis. Mr. Lewis told Mr. Peters to turn on the lights in
the direction of travel and Mr. Peters responded by swearing at
Mr. Lewis. Mr. Firestone met with Mr. Peters and asked
Mr. Peters not to swear at his fellow workers. (Tr. 53, 55, 246-
247, Ex. R-11). Tramming towards Mr. Lewis was unsafe because
Mr. Peters did not have his lights on in the direction of travel.
22. On June 8, 1991, Mr. Firestone's shift and crew followed
the bull gang crew. The bull gang had not finished its work, so
the cable for Mr. Peters' shuttle car needed to be hung and the
anchor needed to be moved. Mr. Peters and Mr. Firestone discuss-
ed the possibility that the cable may be in the way where
Mr. Firestone wanted it hung, but Mr. Firestone decided to hang
it there because otherwise they would have to piggyback (loads of
coal). (Tr. 247). Mr. Peters hung the cable as instructed and
attempted to haul coal, but the shuttle car was running over the
cable. Therefore, Mr. Firestone asked Mr. Peters to rehang the
cable at another location and Mr. Peters refused. (Tr. 248).
23. Subsequently, Mr. Peters helped rehang the cable, but he
complained the whole time about the down shift not getting its
work done. Mr. Peters kept arguing with Mr. Firestone about the
down shift not doing its job so Mr. Firestone decided to take
Mr. Peters to talk with Dennis Bowens, a shift superintendent.
However, Mr. Deirkes, another shift superintendent, came by and
they had a meeting with him. (Tr. 248-249).
24. Mr. Peters admits that on June 8, 1991, he may have re-
fused a directive from Mr. Firestone to relocate the cable for
Mr. Peters' shuttle car. (Tr. 56). Mr. Peters also admits that
he had an attitude problem in June, 1991. (Tr. 52).
25. While on Mr. Firestone's crew, Mr. Peters' performance
level began to drop during the time when Mr. Peters was using
alcohol. (Tr. 226). He was counseled by Mr. Firestone and Jody
Hampton for coming to work under the influence of alcohol in
September, 1990. (Tr. 49).
26. Mr. Peters was referred to mandatory counseling for
alcohol abuse in 1989 and again in 1990. (Tr. 170).
27. Mr. Peters' alcohol problem was part of his performance
problem. Part of the performance evaluation given to him on
June 6, 1991, referred to his previous alcohol abuse problems.
(Tr. 267).
28. Mr. Ross Stewart has complained to Mr. Firestone about
Mr. Peters coming to work with alcohol on his breath. (Tr. 155).
29. The way Mr. Peters operated his shuttle car was abusive
to himself and the car. Other employees, including Mr. Peters'
witness, Mr. Pavlisick, told Mr. Firestone that Mr. Peters had to
slow down because he was going to hurt himself or damage the
shuttle car. Mr. Firestone recalls one location where the road
was rough and recalls seeing Mr. Peters really bouncing around in
his shuttle car. This was before June 12, 1991. Mechanics also
complained about Mr. Peters free wheeling the AC shuttle cars.
(Tr. 259).
30. Mr. Peters' manner of operating his shuttle car was
causing the car to be damaged. (Tr. 194).
31. Mr. Peters has a reputation for running his shuttle car
hard. (Tr. 155).
32. Mr. Peters admits that Jody Hampton talked to him about
taking better care of the equipment. (Tr. 90).
33. Mr. Stewart is aware of one instance where Mr. Peters
crowded a continuous miner operator with his shuttle car;
Mr. Stewart considered that to be an unsafe act. (Tr. 157).
34. On one occasion Mr. Peters rammed his shuttle car into
Mr. Stewart's shuttle car. (Tr. 155).
35. Mr. Peters admits that he often became angry and com-
plained to Mr. Firestone about the down shift not doing their job
when Mr. Firestone's crew had to finish work which the down shift
did not complete. (Tr. 57).
36. Mr. Peters complained about the down shift not doing its
work and he complained if he had to do work that the down shift
had not completed. (Tr. 158).
37. Mr. Peters' poor work performance included, insubordina-
tion, yelling at Mr. Firestone, yelling at his co-workers,
refusing to do work which he was directed to do, and not helping
move the continuous miner from place to place. (Tr. 280).
38. Mr. Peters' failure to help move the continuous miner
from place to place was a daily occurrence. (Tr. 280).
39. During their discussion on June 8, 1991, Mr. Firestone
advised Mr. Peters that Mr. Firestone was going to issue a second
step disciplinary letter to Mr. Peters. (Tr. 250).
40. On June 8, 1991, Mr. Peters threatened Mr. Firestone.
After Mr. Firestone told Mr. Peters he was going to be issued a
second step letter, Mr. Peters said he had notes on Mr. Firestone
and other supervisors and that if he was going to lose his job,
Mr. Firestone and other supervisors would also. (Tr. 252).
41. On June 8, 1991, Mr. Peters attempted to convince
Mr. Firestone not to issue a second step disciplinary letter and
tried to convince Mr. Firestone to tell Mr. Rosene that they
(Firestone and Peters) had worked out the problem with
Mr. Peters' performance. (Tr. 251).
42. Shortly after June 8, 1991, Mr. Peters called Mr. Fire-
stone at home to ask if Mr. Firestone had talked to Mr. Rosene
and to attempt to persuade Mr. Firestone not to issue the second
step disciplinary letter. (Tr. 252). Mr. Firestone believed
Mr. Peters did not want the second step letter issued because Mr.
Peters was trying to get a truck driver job on the surface at the
mine. (Tr. 252-253).
43. Mr. Rosene is the Human Resources Manager for Twentymile
Coal Company. He had held that position since October 1968. Mr.
Rosene has 14 years experience in coal and noncoal mines in
hourly and management positions. (Tr. 168).
44. Twentymile Coal Company has a corrective action counsel-
ing program which was implemented in 1988. (Tr. 171, Ex. R-7).
45. The corrective action counseling program has three
steps: a first reminder; a second reminder, and then a career
discussion advisory. (Tr. 171, Ex. R-7).
46. A first reminder is a confidential meeting between a
supervisor and an employee to identify performance problems.
(Tr. 172, Ex. R-7).
47. A second reminder (or second step advisory) is more
serious and it includes a letter to identify problems and means
of improving. (Tr. 172, Ex. R-7).
48. A career discussion (or third step) advisory identifies
performance issues and the affected employee is sent home for a
day with pay to decide whether or not he or she can make a com-
mitment to the guidelines, policies and procedures of Twentymile.
If the employee makes such a commitment, a joint action plan is
formulated. If the employee succeeds in following the plan, the
employment relationship continues. If not, the employee is ter-
minated. (Tr. 173, Ex. R-7).
49. Any appropriate step of the corrective action counseling
program may be used at anytime, depending upon the severity of
the performance issues involved. (Tr. 175, Ex. R-7).
50. Mr. Firestone was frustrated with the amount of time he
was spending concerning performance problems with Mr. Peters.
(Tr. 250).
51. Mr. Peters was issued a second step advisory letter
because his job performance was inadequate, he was disruptive on
his crew, his co-workers were complaining about the way he
treated them, he refused to hang his shuttle car cable when told
to do so by his foreman, he refused to help the continuous miner
crew move the miner, and for unsafe conduct. (Tr. 177, 192, 196,
280).
52. The second step disciplinary letter was based on con-
cerns about Mr. Peters' performance since April 1991. (Tr. 199).
53. Mr. Peters signed the acknowledgment on the second step
disciplinary letter (Ex. C-1), which letter specifically states
that Mr. Peters agreed that his performance was not up to
standard. (Tr. 60).
54. Mr. Peters admits that he tried to persuade Mr. Fire-
stone that it would not be fair to give Mr. Peters a second step
disciplinary letter. (Tr. 59).
55. Mr. Firestone's decision to issue the second step letter
to Mr. Peters was not motivated in any way by Mr. Peters' com-
plaints about ventilation or the condition of his shuttle car.
(Tr. 177, 196, 221, 261).
56. Mr. Peters talked to Mr. Firestone and the mine manager
about ventilation issues at various times. (Tr. 22-23).
57. When Mr. Peters complained to Mr. Firestone about venti-
lation in the mine, Mr. Firestone would take measurements. If
they needed more air, Mr. Firestone would notify one of the shift
supervisors who would make arrangements for the graveyard shift
to provide more air. (Tr. 227).
58. If there was recirculation of air, Mr. Firestone would
shut down production and repair what needed to be done. (Tr.
227).
59. Mr. Peters admits that when he identified ventilation
problems to his supervisors, various actions were taken to
correct them. (Tr. 23).
60. The No. 4 shuttle car is the one which Mr. Peters was
operating on June 12, 1991, and generally during the time period
in question. (Tr. 65).
61. The No. 4 shuttle car was also operated by another
operator, Dan Gagon, on a different shift. (Tr. 66, 138).
62. Mr. Firestone would often run the No. 4 shuttle car
during Mr. Peters' lunch breaks. (Tr. 65).
63. During May and June, 1991, Mr. Firestone ran Mr. Peters'
shuttle car for approximately one hour every other day. (Tr.
229).
64. When Mr. Peters complained to Mr. Firestone about the
brakes on Mr. Peters' shuttle car, Mr. Firestone and Mr. Peters
would determine if the car was safe to continue operation. If
something needed to be done immediately, it was done. If the
maintenance or repair could wait, it was reported to the down
shift. (Tr. 228). This was standard practice. (Tr. 103, 151).
65. Mr. Firestone relied upon the maintenance foreman to
repair Mr. Peters' shuttle car. (Tr. 277).
66. During May and June, 1991, the brakes on Mr. Peters'
shuttle car were adequate to stop the loaded car on an incline.
However, the brakes were not as good as the brakes on the newer
AC cars. (Tr. 230).
67. When the brakes failed on Mr. Peters' shuttle car on
June 12, 1991, it was because a brake rotor broke. (Tr. 61).
68. It is not common for a brake rotor to break on shuttle
cars such as shuttle car No. 4. (Tr. 132, 146, 256). A typical
daily walk around inspection of the shuttle car would not have
revealed that the brake rotor was about to break. (Tr. 63, 132,
145).
69. Mr. Dan Gagon operated the No. 4 shuttle car on a
different crew from Mr. Peters. (Tr. 138).
70. On June 12, 1991, during the day shift, Mr. Gagon had
his shift mechanic check the brakes on the No. 4 shuttle car.
(Tr. 139).
71. On occasion, Mr. Gagon shut down the No. 4 car during
his shift to check the brakes. He also reported problems with
the brakes to his supervisor and to maintenance. (Tr. 138).
There was no testimony that Mr. Gagon was disciplined or of any
hostility towards him for such actions.
72. Mr. Ross Stewart is a shuttle car operator for Twenty-
mile Coal Company. He drove the other shuttle car on Mr. Peters'
crew. (Tr. 148).
73. At times Mr. Stewart shut his shuttle car down when he
felt it was not safe to operate. (Tr. 150). There was no testi-
mony of any discipline or hostility towards Mr. Stewart for such
conduct.
74. Mr. Frank Pavlisick was employed by Twentymile Coal
Company from 1985 to July, 1992. In June 1991, he was a main-
tenance foreman. (Tr. 99)
75. Mr. Pavlisick's crew was not the regular crew that
worked on the No. 4 shuttle car. (Tr. 115-116, 119). His crew
only worked on it if it broke down during a production shift.
(Tr. 116).
76. Generally, if Mr. Firestone reported problems with the
brakes on the No. 4 shuttle car, they would have been fixed by a
different maintenance crew than Mr. Pavlisick's crew. (Tr. 119).
77. When Mr. Pavlisick's crew did work on the No. 4 shuttle
car, it was safe to operate when he released it for production
work. (Tr. 116).
78. According to Mr. Pavlisick, no one could have known that
the brake rotor was going to break on the day it broke. (Tr.
122).
79. Mr. Pavlisick does not know if the No. 4 shuttle car was
designed and constructed so the motor would hold it back going
down hills. In any event, the car still had brakes to hold it
back on hills. (Tr. 118).
80. Mr. Pavlisick, as a maintenance foreman, had authority
to take the No. 4 shuttle car out of service if he thought it was
unsafe. (Tr. 134).
81. Mr. Pavlisick admitted that he is not an expert with
regard to electrical matters. (Tr. 101). Therefore, the opin-
ions he gave about the electrical circuits of the No. 4 shuttle
car cannot be given any weight.
82. Mr. Doug Ogden was on Mr. Pavlisick's downshift contin-
uous miner maintenance crew in June, 1991. (Tr. 125).
83. Mr. Ogden is aware that in June 1991, the brakes of the
shuttle cars were checked by maintenance people on the production
shifts and on the maintenance shifts. (Tr. 143).
84. When Mr. Ogden worked on the brakes on the No. 4 shuttle
car he would check them to make sure they worked before he would
release the car. (Tr. 133).
85. Mr. Ogden's crew had tightened the bolts on the brakes
on the No. 4 shuttle car on occasions prior to June 12, 1991.
When they tightened the bolts, they felt the machine was opera-
tional. (Tr. 129).
86. It was acceptable for Mr. Peters to shut down his
shuttle car if he felt the brakes were not working properly.
(Tr. 273, 275).
87. Mr. Firestone never decided not to have Mr. Peters'
shuttle car checked or repaired because of Mr. Peters' complaints
about the car or ventiliation. (Tr. 262).
88. MSHA investigated shuttle car No. 4 following the brake
failure on June 12, 1991, and found no neglect by Twentymile Coal
Company with respect to maintenance of the car. (Tr. 213).
89. When Mr. Peters refers to the "heaters" on his shuttle
car, he is referring to the electrical overloads. (Tr. 75).
90. An overload is an electrical unit that protects the
motor from drawing too much amperage. (Tr. 20).
91. During the time in question, the "overloads" kept kick-
ing on the No. 4 shuttle car. (Tr. 20).
92. When the "heaters" would kick on shuttle car No. 4, the
power would be cut off. The shuttle car could not be operated
again until the heaters cooled and they could be reset. (Tr.
228).
93. When the heaters kicked on Mr. Peters' shuttle car the
breaks were activated by a selinoid and they set immediately.
(Tr. 230).
94. The downshift had been working on the No. 4 shuttle car
frequently to correct the situation with the heaters kicking.
(Tr. 229).
95. If a shuttle car is worked on during a production shift,
it is noted on a report called a production and maintenance
report. (Tr. 69).
96. If a shuttle car is worked on during a maintenance
shift, it is noted on a report called a maintenance report. (Tr.
69).
97. The brakes on the No. 4 shuttle car had been worked on
several times shortly prior to June 12, 1991, as indicated in
Exhibits R-1 through R-5. (Tr. 257).
98. The production and maintenance report for Mr. Peters'
crew on the day shift on May 31, 1991, indicates that work was
done on his shuttle car with regard to the heaters kicking and to
replace a brake puck. (Tr. 71, Ex. R-1).
99. A maintenance report for the swing shift on May 31,
1991, indicates that repairs were made to the electrical system
of the No. 4 shuttle car and that 4.1 hours were spent replacing
the brake rotor on the right side of the shuttle car. (Tr. 72,
Ex. R-1).
-
A maintenance report for the swing shift on June 6,
1991, indicates that work was done on the heaters on the No. 4
shuttle car. (Tr. 76, Ex. R-2). -
A maintenance report for the graveyard shift on June 6,
1991, indicates that additional work was done on the heaters of
the No. 4 shuttle car. (Tr. 76, Ex. R-2). -
A maintenance report for the swing shift on June 7,
1991, indicates that work was done on the electrical system on
the No. 4 shuttle car. (Tr. 77, Ex. R-3). -
A maintenance report for the graveyard shift on June 7,
1991, indicates that work was done on the brakes on the No. 4
shuttle car. (Tr. 77, Ex. R-3). -
A maintenance report for the swing shift on June 8,
1991, indicates that one man spent nine hours working on the
electrical system on the No. 4 shuttle car. (Tr. 79-80, Ex.
R-5). -
A maintenance report for the day shift on June 10, 1991,
indicates that work was done on the electrical system of the No.
4 shuttle car. (Tr. 78, Ex. R-4). -
A maintenance report for the day shift on June 11, 1991,
indicates that two men worked seven hours to check the tram
circuit of the No. 4 shuttle car "for why the overloads kick."
(Tr. 79, Ex. R-4). -
Mr. Peters testified that it is the operator's responsi-
bility to check his car before the start of each shift. (Tr. 27). -
During the day shift on June 12, 1991, the operator of
shuttle car No. 4 had the shift mechanic work on the brakes.
(Tr. 139). -
On June 12, 1991, Mr. Peters noticed some loose bolts on
the brakes of the No. 4 shuttle car during his walk around in-
spection. He and the section mechanic tightened up the loose
bolts. (Tr. 27). -
After Mr. Peters and the section mechanic tightened up
the bolts on the brakes on his shuttle car at the beginning of
his shift on June 12, 1991, he operated the car for three or four
hours before the brake rotor broke. (Tr. 27). -
When the brake rotor broke, Mr. Peters was driving the
unloaded shuttle car up a hill. (Tr. 27). The car then rolled
backwards down the hill for a distance of 25 to 30 feet where it
bottomed out and came to a sudden stop. (Tr. 27). -
Mr. Peters is not sure whether his car had a panic bar
on June 12, 1991, but he knows he did not hit the panic bar when
the car rolled backwards. (Tr. 64). -
At the time Mr. Peters' shuttle car rolled backwards on
June 12, 1991, Mr. Peters did not believe he had been injured and
he told Mr. Firestone that there was no problem. (Tr. 28, 65). -
On June 12, 1991, Mr. Peters did not tell Mr. Firestone
that he was injured. If he had, Mr. Firestone would have either
taken Mr. Peters outside or he would have completed an accident
report. (Tr. 255-256). -
Subsequent to June 12, 1991, while working through
vacation, Mr. Peters began to have pain going down his leg which
he believed was connected to the sudden stop of his shuttle car
on June 12, 1991. (Tr. 29). It was then that Mr. Peters
inquired as to whether an accident report had been filed.
(Tr. 30). -
Mr. Peters never proved that his back injury was a
result of the sudden stop of his shuttle car on June 12, 1991,
since there was no medical expert testimony to connect the
accident to the injury. -
Mr. Peters has been instructed by mine management per-
sonnel that if he feels a piece of equipment is unsafe, he is not
supposed to operate it. (Tr. 88). -
Mr. Firestone was not present in the section on June 12,
1991, when the brake rotor broke on Mr. Peters' shuttle car
because he was in another section running an errand for his
supervisor. (Tr. 255). -
Mr. Peters is not aware of any damage to the shuttle car
on June 12, 1991, when the brake rotor broke. (Tr. 67). -
There was no reason for Mr. Firestone to file an acci-
dent report immediately following the failure of the brakes on
June 12, 1991, because Mr. Peters said he was not injured and
because there was no damage to the shuttle car other than the
broken brake parts. -
There was no accident report filed with respect to the
incident when the brakes broke on Mr. Peters' shuttle car on
June 12, 1991, until July, 1991. Mr. Peters did not file a
report. Accident reports are initiated at the mine by the
employee involved. (Tr. 203). -
Mr. Peters' complaint to MSHA states that the brakes
would not stop his shuttle car very good with a load on; however,
his car was unloaded when the brake rotor broke on June 12, 1991.
(Tr. 66).DISCUSSIONAs a threshold matter there is no proof in this record as to
the status of Cyprus Minerals Company. Accordingly, the case is
dismissed as to said Respondent due to lack of proof.
Protected Activity
There is no question but that Fred L. Peters was engaged in
activities protected under the Mine Act when he complained about
the shuttle cars, the overloads kicking out and the service
brakes on the shuttle cars. In addition, his complaints about
air in the entries and his written complaints to MSHA were fur-
ther protected under the Mine Act.
Direct Evidence of Discrimination
As a threshold matter, it is apparent that the record fails
to disclose any direct evidence of discrimination as to Mr. Pe-
ters' protected activities. However, as noted under the case law
direct evidence is seldom seen in such cases. Accordingly, it is
appropriate to determine whether any circumstantial indicia might
be established by the evidence.
Knowledge of Protected Activity
Twentymile's supervisor knew of Mr. Peters' safety com-
plaints but took no adverse action.
Hostility to Protected Activity
There was no hostility to Mr. Peters' protected activity.
Ross Stewart, a shuttle car driver on Mr. Peters' crew shut down
the shuttle car when he felt it was unsafe to operate it. No
discipline or hostility was shown towards Mr. Stewart. In addi-
tion, it was acceptable for Mr. Peters to shut down his car if he
felt it was unsafe. Finally, Mr. Peters had been instructed to
shut down unsafe equipment. Compare Hicks v. Cobra Mining, Inc.,
et al 12 FMSHRC 563, 568 (Weisberger, J.).
In sum, the failure of management to manifest hostility,
displeasure or anger appears to confirm the lack of any discrimi-
natory intent against employees who exercise such rights.
Coincidence in Time
Mr. Peters claims the second step letter of June 10, 1991,
was discriminatory conduct on the part of the company. However,
that bears only a minimal relationship in time to the events
beginning April 23, 1991. In Larry Cody v. Texas Sand and Gravel
Co., 13 FMSHRC 606, 668 it was held that adverse action was not
motivated by a two week old safety complaint.
Disparate Treatment
There is no evidence that Mr. Peters was treated differently
than other employees.
In support of his position Mr. Peters relies on Phillips v.
Interior Board of Mine Operations Appeals, 500 F.2d 772 (1974).
He asserts Phillips is identical with the case at bar.
I disagree. The primary issue in Phillips is when a miner's
safety complaints first come under protection of the Mine Act
(when made to a foreman or when made to MSHA).
The determination in Phillips was specific to the facts in
that case.
Mr. Peters further argues the failure of Respondents to
fully repair the defective shuttle car brakes constitutes dis-
crimination which resulted in direct damage to him and deprived
him of full pay, overtime and a demotion to the status of a
temporary position.
Contrary to Mr. Peters' views the record establishes exten-
sive repairs were made to shuttle car No. 4. Mr. Peters' posi-
tion apparently seeks to by-pass the work refusal rights under
the Mine Act. On the other hand, the Judge is obliged to follow
the Commission's established analysis for considering discrimina-
tion cases.
On the record of this case and for the reasons stated I
conclude that any adverse action was not motivated, in whole or
in part, by Mr. Peters' protected activities. Assuming Twenty-
mile and Mr. Firestone's actions were motivated in part by
Mr. Peters' protected activities the Respondents' established by
a preponderance of the evidence that they were also motivated by
business reasons and Mr. Peters' unprotected activities and they
would have taken the adverse action in any event.
For the foregoing reasons stated herein, this case is
DISMISSED.
John J. Morris
Administrative Law Judge
Distribution:
Patricia Jo Stone, Esq., STONE & ASSOCIATES, 2535 South
Wadsworth, Lakewood, CO 80227 (Certified Mail)
Stanley R. Geary, Esq., BUCHANAN INGERSOLL, 600 Grant Street,
58th Floor, Pittsburgh, PA 15219 (Certified Mail)
sh
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