Marty P. Boden v. Lion Coal Company

Plain-English summary

Marty P. Boden, a belt foreman at the Swanson Mine, reported unsafe conditions to MSHA. The mine's management learned that his complaints led to an MSHA inspection and directed that he be fired later the same day. Judge August F. Cetti found that the stated reason for the discharge was pretextual and that Lion Coal violated the Mine Act's discrimination provision. Cougar Coal, as Lion Coal's successor, was held jointly and severally liable. The order required back pay with interest, expungement of the discharge references, and a $400 civil penalty.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)(1)
• Outcome: The discriminatory discharge finding was upheld, with back pay, record expungement, and a $400 civil penalty ordered against Lion Coal and Cougar Coal jointly and severally.
• Key point: Firing a miner soon after management learns that the miner reported unsafe conditions to MSHA supports a retaliation finding when the stated reason is pretextual.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

                      September 26, 1996

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-417-D
on behalf of :
MARTY P. BODEN, :
Complainant :
:
v. :
:
LION COAL COMPANY, :
COUGAR COAL COMPANY, successor : Swanson Mine
to LION COAL COMPANY, : Mine I.D. 48-00082
Respondent :

                            DECISION

Appearances: Kristi L. Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Complainant;
Brian W. Steffensen, Esq., counsel and registered
agent, Cougar Coal Company,
Corporate Secretary, Lion Coal Company,
for Respondent.

Before: Judge Cetti

 This case is before me upon the complaint by the Secretary

of Labor on behalf of Marty P. Boden under section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et. seq., the "Act". The complaint alleges that Lion Coal
Company (Lion Coal) violated § 105(c)(1)1 of the Act when it

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

    No person shall discharge or in any manner discriminate

against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner, representative of miners or applicant for
employment in any coal or other mine subject to this Act because
such miner, representative of miners or applicant for employment

discharged Marty P. Boden from his position as belt foreman at
the Swanson Mine. For the reasons discussed below, I find that
Respondent Lion Coal violated section 105(c)(1) when it discharg-
ed Mr. Boden in the afternoon of the same day that there had been
an early morning Code-a-Phone inspection of the operator's Swan-
son Mine. It is undisputed that the Code-a-Phone inspection
resulted from Boden's report to MSHA about unsafe conditions at
the Swanson Mine.

 Liability is also assessed against Respondent, Cougar Coal

Company (Cougar Coal), as the successor to Lion Coal for the
reasons set forth in my decision in Secretary of Labor, on behalf
of Marty P. Boden, v. Lion Coal Company and Cougar Coal Company,
successor to Lion Coal Company. 9 FMSHRC 1620, 1624 (Sept.
1995).

 Having considered the evidence presented at the hearing and

the record as a whole, I find that a preponderance of the sub-
stantial, reliable, and probative evidence establishes the
Findings of Fact and further findings in the Discussion below:

                    FINDINGS OF FACT

 1. At all relevant times, Respondent Lion Coal and its

successor Cougar Coal engaged in the production of coal at the
Swanson Mine and, therefore, each is an operator within the
meaning of section 3(d) of the Mine Act.

 2. The Swanson Mine is an underground coal mine and is a

mine as defined by section 3(h) of the Mine Act, the products of
which affect interstate commerce.

 3. At all relevant times, Marty Boden was employed by

Respondent Lion Coal as a belt foreman and as a miner as defined
by section 3(g) of the Mine Act.

 4. Matt Breneman at all relevant times was the mine

superintendent and manager at the Swanson Mine. He was the

has filed or made a complaint under or related to this Act,
including a com-
plaint notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other
mine or has testified or is about to testify in any such proceed-
ing, 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.

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person with the highest authority at the mine site and had
authority from the operator of the Swanson Mine to discharge
Boden.

 5. Marty Boden engaged in protected activity when on

November 7, 1994, Mr. Boden contacted the MSHA offices in Delta,
Colorado, and Arlington, Virginia, to report unsafe working
conditions at the Swanson Mine. Specifically, he complained
about the belt rollers, the rock dusting and the returns.
Boden's phone calls of November 7, 1994, caused MSHA to perform a
Code-a-Phone inspection at the Swanson Mine on November 9, 1994.

 6. The Code-a-Phone message had safety complaints that were

the same complaints that Boden had repeatedly made to management.
The mine superintendent Breneman could tell from the complaints
in the Code-a-Phone message that Boden was the one who made the
complaints to MSHA that resulted in the inspection. After the
Code-a-Phone inspection was completed, Matt Breneman talked to
the mine's Board of Directors in Salt Lake City. Board members
put the call on a speaker phone and board members R. Anderson
(Dick), J. Lipscomb and Brian Steffensen participated in the
call. Breneman discussed with them the inspection and the
complaints set forth in the Code-a-Phone mes-sage. In the course
of that conversation, Mr. Steffensen told Breneman to fire Marty
Boden. Immediately on hanging up the phone Breneman discharged
Mr. Boden.

 7. Mr. Boden was discharged the afternoon of November 9,

1994, in retaliation for his complaints to MSHA about unsafe
conditions at the Swanson Mine. Boden's complaints to MSHA
resulted in the MSHA Code-a-Phone inspection of the mine on the
morning of November 9, 1994.

 8. Boden was discharged for engaging in the above refer-

enced protected activity. No affirmative defense was estab-
lished.

 9. At the time of his discharge on November 9, 1994, Marty

Boden's regular rate of pay was $1,000 - a week.

10. Marty Boden's job at the Swanson Mine, but for his

illegal discharge on November 9, 1994, would have continued up
through April 17, 1995, the date his replacement, Dennis Keller,
was laid off due to lack of work.

11. Because of credit problems, the shareholders of Lion

Coal voted to create Cougar Coal in order to continue the opera-
tion of the Swanson Mine. Cougar Coal was incorporated in the
state of Wyoming on November 29, 1994.

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12. On November 29, 1994, Lion Coal sold the company for a

nominal fee and transferred its coal mining business and most of
its assets to the newly formed Cougar Coal Company.

13. After the November 29, 1994, sale and transfer stated

above Cougar Coal continued to mine coal at its Swanson Mine
without a break during the change of the operator from Lion Coal
to Cougar Coal.

14.   Cougar Coal is the successor of the Lion Coal Company.

15. At the August 29, 1995, hearing, Cougar Coal filed a

Notice of Bankruptcy stating that "Respondent Cougar Coal Company
is the Debtor in Possession in Bankruptcy No. 95C-21320, United
States Bankruptcy Court for the District of Utah, Central Divi-
sion. Cougar's voluntary petition for relief under Chapter 11 of
the Bankruptcy Code was filed on March 15, 1995." This Notice of
Bankruptcy was handed to Judge Cetti by counsel Brian W. Steffen-
sen while Judge Cetti was sitting on the bench just moments
before going back on the record with the hearing in this matter
at 9 a.m. on August 29, 1995, with the request that it be filed.
(Tr. I of 8/29/95 pg. 8).

16. Counsel Brian W. Steffensen at all relevent times, was

the secretary for Lion Coal and the secretary and a registered
agent for Cougar Coal.

              DISCUSSION AND FURTHER FINDINGS

 The general principles governing analysis of discrimination

cases under the Mine Act are well established. In order to
establish a prima facie case of discrimination under section
105(c) of the Act, a complaining miner bears the burden of proof
in establishing that (1) he engaged in protected activity and (2)
the adverse action complained of was motivated in some part by
that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April
1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activ-

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ity alone. Pasula, supra; Robinette, supra. See also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987);
Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C.
Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)
(specifically approving the Commission's Pasula-Robinette test).
Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 397-
413 (1983) (approving nearly identical test under National Labor
Relations Act).

 Direct evidence of actual discriminatory motive is rare.

Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
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).
The Eighth Circuit analogously stated with regard to discrimina-
tion 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
      (protected) activity could be supplied
      exclusively by direct evidence. Intent is
      subjective and in many cases the discrimina-
      tion can be proven only by the use of circum-
      stantial evidence. Furthermore, in analyzing
      the evidence, circumstantial or direct, 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,
and coincidence in time between the protected activity and the
adverse action. Chacon, supra at 2510.

 The Secretary presented the testimony of the mine manager

and superintendent Matt Breneman; the belt foreman and Complain-
ant Marty Boden; the MSHA special investigator Leslie Y. Lorenzo;
the former company safety manager Anna Marie Boden; Ron Kalvis, a
shop foreman; Greg Brown, who worked under Boden on the belts;
Dennis Keller, who took over Boden's duties as belt foreman when
Boden was discharged; Ron Hoffman and Tara Whittaker.

 The Respondent presented primarily the testimony of manage-

ment witnesses who testified that they were not satisfied with
Mr. Boden's work performance as belt foreman and were also con-

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cerned about his use or possible misuse of a company gas card and
company telephone. Their testimony indicated that Lion Coal
management was in the process of investigating Mr. Boden's work
performance and were planning to make a closer check on his work
performance with the view of possibly terminating his employment
before they became aware of Marty Boden's Code-a-Phone message to
MSHA.

 I was impressed with the credibility of the testimony of

Matt Breneman, the mine superintendent and manager of the Swanson
mine. I credit his testimony. He, as well as other witnesses,
testified that the safety complaints in the Code-a-Phone message
were the same complaints that Boden had repeatedly made to man-
agement, and he (Breneman) could tell from the complaints set
forth in the Code-a-Phone message that Boden was the one who made
the complaints to MSHA. After the Code-a-Phone message was
received at the mine and the Code-a-Phone inspection completed,
Matt Breneman in a long distance phone call to Salt Lake City
discussed the matter with the mine's Board of Directors. The
board members put his call on a speaker phone, and R. Anderson
(Dick), J. Lipscomb and Brian Steffensen participated in the
call. Breneman discussed with them the Code-a-Phone inspection
and the complaints set forth in the Code-a-Phone message. In the
course of that conversation Brian Steffensen admittedly told
Breneman that he was "not afraid" to fire Marty Boden. The mine
manager replied he had no reason to fire Boden. Brian Steffensen
then told him to fire Boden for "malfeasance". Breneman hung up
the phone, looked at Boden and said "they want me to fire you"
for "malfeasance." He briefly discussed the situation with Boden
and it was determined that in order not to jeopardize his own
job, Breneman would have to do what he was told to do. He fired
Boden. Boden then immediately left the mine.

 The record satisfactorily establishes that the reason given

for firing Boden, "malfeasance", was pretextual. The evidence
presented fails to establish that Boden misused the company gas
card or misused the company phones as asserted by Respondent.

 It is worthy of note that Boden had no prior disciplinary

action taken against him nor were there any letters of reprimand
in his personnel file. He received no reprimands or warnings of
any kind. Matt Breneman, Boden's supervisor, was certainly the
person in the best position to evaluate Boden's work and testi-
fied that Boden had satisfactorily performed all duties. One of
the miners on Boden's crew, Greg Brown, testified that Boden was
a good supervisor and worked with the crew to get things done.

 While it is true that some needed maintenance work was not

performed, the reason being that management would not authorize

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the necessary funds. It satisfactorily appears from the record
that Boden did the best job he could do with what he had to work
with.

 The preponderance of the evidence established that Boden was

discharged on November 9, 1994, in retaliation for his protected
activity in violation of § 105(c) of the Mine Act.

 The purpose of reinstatement is to place a miner, as closely

as possible, in the situation he would have occupied, but for the
illegal discrimination. Boden was employed by Lion Coal from
September 1994 through November 9, 1994, as a belt foreman. His
normal rate of pay was $1,000 a week. On his illegal discharge
Boden was replaced by Dennis Keller who took over Boden's job of
supervising the belt crew and his other duties as belt foreman.
Dennis Keller was "laid off" April 17, 1996 due to lack of work
at the Swanson Mine. The mine was closing down at that time.
The Secretary contends that Boden is entitled to back-pay at his
normal rate of $1,000 a week from November 9, 1994, the date of
his illegal termination, to April 17, 1995, the date Dennis
Keller, who replaced him, was laid off due to lack of work. On
review and evaluation of the evidence of record, I agree with the
Secretary that Boden is entitled to back pay at the rate of
$1,000 a week for the period from the 9th of November 1994
through the 17th of April 1995.

   COUGAR COAL COMPANY, SUCCESSOR TO LION COAL COMPANY

 It has been established that Respondent Cougar Coal is the

successor to Lion Coal in the case of Lion Coal Company, Cougar
Coal Company as successor to Lion Coal Company. 17 FMSHRC 1620
(Sept. 1995).

 The evidence established that on November 29, 1994, for

$10.00 and other consideration, Cougar Coal assumed the right to
the title and an interest in all assets of Lion Coal except for
claims against the Selengos and their affiliates, cash on hand,
current accounts receivable and inventory. (Gov't. Ex. 10-B).
After the November 29, 1994, transaction, the day-to-day opera-
tions at Swanson Mine continued by Cougar Coal without a break.
The mine continued to produce coal. The mine and the appurte-
nances associated with the mining activities remained the same.
The workforce remained substantially the same. Both Mine
Superintendent Gene Picco and Mine Manager George Herne, who have
been employed at this mine for several years continued their
employment with Cougar Coal.

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 Mining methods and procedures did not change and the same

jobs were required to be filled. Cougar Coal adopted all of Lion
Coal's MSHA-approved plans and stated that they anticipate no
change in mining practices. Cougar Coal used the same machinery,
equipment and methods of production.

 George Herne, mine manager for Cougar Coal, in his letter to

the MSHA District Manager under the letterhead of Cougar Coal
Company dated January 13, 1995, stated in relevant part:

        Cougar Coal Company has taken over the
      operations of the Swanson Mine, ID #48-00082
      from Lion Coal Company. At this time Cougar
      Coal anticipates no change in the mining
      practices employed at the Swanson Mine. For
      this reason Cougar Coal Company will continue
      to operate under Lion Coal Company's approved
      mining plans, and accepts these mining plans
      as their own. (Gov't. Ex. 10-A, pg. 4, Tr.
      479).

 In addition, the corporate officers and directors for Lion

Coal Company and Cougar Coal Company are substantially the same
as follows:

 James Lipscomb   - Chairman and President of Lion Coal
                    Company and President of Cougar Coal
                    Company

 Hal Rosen        - Treasurer of Lion Coal Company and
                    Treasurer of Cougar Coal Company

 Richard Anderson - Vice-President of Lion Coal Company and
                    Vice-President of Cougar Coal Company

 Brian Steffensen - Secretary of Lion Coal Company and
                    secretary and registered agent for Cougar
                    Coal Company. Brian Steffensen is also
                    counsel of record who was present and
                    participated in all proceedings in
                    this matter.

 Thus, under the nine-factor successorship guideline

enunciated Munsey v. Smitty Baker Coal Company Inc., 2 FMSHRC
3463 (1980) Cougar Coal is the successor to Lion Coal and, as
such, along with Lion Coal, is properly subject to joint and
several liability for back-pay to Marty Boden and the civil
penalty for the violation of 105(c) of the Act.

                            8


 On consideration of the statutory criteria in section 110(i)

of the Act that is relevant in this discrimination case, particu-
larly the financial situation of the Respondents inability to
continue mining, the closure of the mine and the continuing
bankruptcy proceeding of the successor Cougar Coal Company, I
conclude the appropriate civil penalty in this case is $400.00.

                          ORDER

 It is ORDERED that the Respondent, Lion Coal Company and

Cougar Coal Company jointly and severally:

 1. Pay Marty P. Boden full back-pay with interest for the

period from November 9, 1994, through April 17, 1995, at his
normal rate of pay of $1,000.00 a week less appropriate Federal
and State tax withholding payable to said governmental agencies.

 2. Expunge from Marty P. Boden's personnel records all

references to his discharge and the circumstances involved in the
discharge.

 3. Pay a civil penalty in the amount of $400.00 to the

Secretary of Labor for the violation of section 105(c) of the
Act.

                            9


 4. This decision constitutes my final disposition of this

proceeding.

                            August F. Cetti
                            Administrative Law Judge

Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Brian W. Steffensen, Esq., LION COAL COMPANY, 675 East 2100
South, Suite 350, Salt Lake City, UT 84106 (Certified Mail)

COUGAR COAL COMPANY, 1554 9th Street, Rock Springs, WY 82901
(Certified Mail)

/sh

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