Stillwater Mining Company

Plain-English summary

Chris Schultz alleged that Stillwater Mining Company violated section 105(c) of the Mine Act by terminating him after he reported being attacked by another employee. Judge Avram Weisberger found that hitting the other miner, even in response to being hit first, was not protected activity under the Act. He also found that Stillwater terminated both participants for the altercation and that the company’s action was based on the fight, not on Schultz’s report or another protected safety complaint. The judge dismissed the discrimination complaint.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Reporting a workplace altercation does not become protected Mine Act activity when the underlying conduct is not grounded in an alleged safety-standard violation or hazardous mine condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041


                       January 30, 1996

CHRIS SCHULTZ, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 95-513-DM
: RM MD 95-14
STILLWATER MINING COMPANY, :
Respondent : Stillwater Mine
: Mine ID 24-01490

                           DECISION

Appearances: Scot Schermerhorn, Esq., Freeman & Schermerhorn,
P.C., Billings, Montana, for the Complainant;
Jeanne M. Bender, Beth Nedrow, Esqs., Holland &
Hart, Billings, Montana, for the Respondent.

Before: Judge Weisberger

                    Statement of the Case

 This case is before me based upon a Complaint filed by

Chris Schultz on August 30, 1995, alleging that Stillwater
Mining Company (Stillwater) terminated him in violation of
Section 105(c) of the Federal Mine Safety and Health Act of 1977
(the Act). An Answer was filed by Stillwater on September 25,
1995. Pursuant to notice, the case was heard in Billings,
Montana, on October 31, 1995. Chris Schultz testified on his own
behalf. Louis Meyers and Larry James Jaudon testified for
Stillwater. Each of the parties filed a Brief and Proposed
Findings of Fact on December 4, 1995. On December 8, 1995,
Complainant filed a Response Brief. On December 13, 1995,
Respondent filed a reply to this brief.

                       Findings of Fact

 On July 11, 1994, Chris Schultz was hired by Stillwater to

work as a laborer at its Stillwater Mine, an underground
platinum group materials mining operation. Schultz underwent
40 hours newly employed inexperienced miner training. At that
time, he received a copy of Stillwater’s Employee Handbook and
its Safety Rules and Practices. In the course of the training,
there was no discussion regarding any possible disciplinary
action that would be meted out to an employee for reporting an
attack by another employee.

 Prior to March 23, 1995, Schultz had been evaluated

two times by his Supervisor, Tom Goldsmith, and was rated on his
ability to get along with other employees. Schultz indicated

that there did not seem to be anything bad in the evaluations.
Prior to March 23, 1995, Schultz never made any safety
complaints.

 In January 1995, Schultz was assigned to work in the east

side of the mine, and to train another laborer, Larry Riddle, who
had just been hired. Schultz continued to work with Riddle
through March 23, 1995. Schultz indicated that he did not have
any personality conflicts with Riddle, and was not aware of any
hard feelings that Riddle had towards him. Riddle did not
complain to mine management about any personality problems with
Schultz. Schultz was never disciplined for any personality
conflict with any other miner.

 On March 23, 1995, Schultz did not work with Riddle.

Schultz indicated that during the workday he borrowed a cigarette
from Riddle, and engaged in small talk. According to Schultz,
Riddle did not exhibit any hint of any hostile feelings.

 At the end of the shift,1 Schultz was in the process of

descending a flight of stairs down to the parking lot. He saw
Riddle at the bottom of the stairs. According to Schultz, Riddle
said to him, “... well, do you have something smart to say now”
(Tr. 21). Schultz said that he said, “what?” (Tr. 21), and then
Riddle hit him. Schultz then dropped the clothes and lunch box
that he had been carrying, and hit Riddle. According to Schultz,
Riddle then hit him a few times and then he (Schultz) backed off.
Schultz said that he then asked Riddle, “what’s going on?” and
Riddle said, “meet me at Carter’s Camp in ten minutes” (Tr. 22).

 Schultz then drove home and called Louis Myers, Stillwater’s

Superintendent, and told him that Riddle had attacked him in the
parking lot. Myers then told Schultz to return to the mine to
talk about the incident.

 Schultz indicated that he initially reported the incident to

Myers, because he was afraid that Riddle would have retaliated.
Schultz indicated that he had been working with Riddle 40 to
50 percent of the time underground, mostly in isolated areas, and
it would have been easy for Riddle to hurt or kill him.

 Schultz returned to the mine and met with Myers, Allen Buell

another superintendent, and Larry Jaudon, Stillwater’s Safety

 1
  When Schultz left the mine at the end of the shift on

March 23, 1995, he was not scheduled to work for 5 days, due to
the normal rotation of his work shift.

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Coordinator. Myers took Schultz’s statement and told him that
his job was in jeopardy as he thought it was a violation of
federal law to fight on mine property. Myers told Schultz to go
home, and that he would be in touch with him.

 On March 27, Schultz called Myers, who asked him to return

to the mine to talk to him. Schultz returned to the mine at
approximately 1:00 p.m., and met with Myers and Ralph McKenzie,
Stillwater’s Safety Coordinator. Myers indicated that he had
talked to Riddle, and informed him that Riddle had said that he
and Schultz had a problem getting along. Myers asked Schultz if
there were any problems, and Schultz said that there were not any
that he was aware of. Myers told Schultz that he had to talk to
John Thompson the mine manager. Myers recommended to Thompson
that both Riddle and Schultz be terminated for fighting and
unacceptable behavior, and Thompson agreed.

 On March 28, Schultz called Myers, who told him to return to

the mine to meet with him. Myers informed him that he had to
terminate him, and that it was Thompson’s decision. Schultz said
that he asked why he was being terminated, and Myers did not give
any response to the question, but said that it was Thompson’s
decision. Schultz then wrote to McKenzie 2 or 3 days later. On
April 11, Schultz received a form entitled Record of Discussion
With Employee which indicates that the action taken was
“discharge” (Complainant’s Exh. 2). This form, signed by Myers,
dated April 10, further states as follows: “Termination for (1)
disregard for the rights of fellow employees. (2) disregard or
violation of accepted behavioral standards.”

 Thompson did not testify; however, he was deposed on

October 24, 1995, and his deposition was admitted in evidence
without objection. He was asked a serious of questions regarding
his role in various personnel actions, and then specifically
about “discharge from employment.” His answer, as pertinent, is
as follows: “Generally speaking I would be the final say-so, ...
.” (Complainant’s Exh. 19, p. 5). Thompson indicated that he
concurred in Myers’ recommendation to discharge Schultz. He
indicated specifically that the discharge had nothing to do with
job performance and that the ultimate reason was “fighting on
company property” (Complainant’s Exh. 19, p. 11).

 Riddle did not testify. Myers indicated that he spoke to

Riddle, who indicated that he did throw the first punch, but that
he had been provoked by Schultz who had been harassing him for
some time. Myers indicated that he could not find anyone who had
witnessed the fight, nor did anyone corroborate Riddle’s
allegation that he had been provoked and harassed by Schultz.
Myers terminated Riddle for fighting, and also because he had not

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yet completed his initial probationary period.

 Stillwater’s Safety Rules and Practices which was in effect

when Schultz was hired (Complainant’s Exh. 8) indicates that
“scuffling and all forms of horseplay are prohibited.” (Id., P.
8). The General Safety Rules, revised on September 19, 1994, and
in effect at the date of the incident in issue, deleted the
prohibition against scuffling and horseplay. Stillwater’s
Policies/Procedures/Benefits does not contain any prohibition
against fighting.

 Myers indicated that in terminating Schultz, he relied on

the fact that fighting is not an acceptable behavior. However,
he indicated on cross-examination that fighting does not include
being attacked or defending yourself.

                       Discussion

 The Commission, in Braithwaite v. Tri-Star Mining,

15 FMSHRC 2460 (December 1993), reiterated the legal standards

to be applied in a case where a miner has alleged acts of
discrimination. The Commission, Tri-Star, at 2463-2464, stated
as follows:

 The principles governing analysis of a discrimination
 case under the Mine Act are well settled. A miner
 establishes a prima facie case of prohibited
 discrimination 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
 2786, 2797-800 (October 1980), rev'd on other grounds,
 sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
 1211 (3d 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. Pasula, 2 FMSHRC at 2799-800. 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 and
 would have taken the adverse action in any event for the
 unprotected activity alone. Pasula, 2 FMSHRC at 2800;
 Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal
 Corporation, v. United Castle Coal Co., 813 F.2d 639, 642
 (4th Cir. 1987).


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 In essence, it appears to be Schultz’s position that he was

fired as a result of his communicating to management the attack
on him by Riddle. Schultz argues that this communication
constitutes a safety complaint, as he was afraid that Riddle
would have retaliated and injured him. He also asserts, in
essence, that he was not fighting, as he hit Riddle back in order
to protect himself after he had been hit by Riddle.

 I find that hitting another miner, even where one was hit

first, is not the type of activity that is protected under the
Act. See, Bruno v. Cyprus Plato, Mining Corp., 10 FMSHRC 1649,
1651, (1988) (Judge Morris); Dickey v. United States Steel,
5 FMSHRC 519, 582 (1983) (Judge Koutras); Burgan v. Harlan
Cumberland Coal Company, 15 FMSHRC, 889, 900 (1993)
(Judge Feldman). I agree with the following statement of the
law as set forth in Bryant v. Clinchfield Coal Company, 4 FMSHRC
1380, 1421 (1982) (Judge Kennedy): “Any claim of protected
activity that is not grounded on an alleged violation of a health
or safety standard or which does not result from some hazardous
condition or practice existing in the mine environment for which
the operator is responsible falls without the penumbra of the
statute.” (See also, Hastings v. Cotter Corporation, 5 FMSHRC
1047 (1983)(Judge Carlson)).

 I further find that Stillwater’s action in terminating

Schultz was based solely upon his participation in the
altercation of March 25. There was no disparate treatment of
Schultz, since Riddle, who was involved in the altercation, was
also fired for this incident. Any argument that the termination
of Schultz was not proper as he was engaged in self defense, and
that such activity is not precluded by any of Stillwater’s rules
or policies, is not for this forum to decide, as it is not the
basis of any violation under the Act.

 For all the above reasons, I conclude that Schultz has not

established that Stillwater violated Section 105 of the Act.
Therefore his Complaint is dismissed.

                          ORDER

 IT IS ORDERED that this case be DISMISSED.




                            Avram Weisberger
                            Administrative Law Judge



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Distribution:

Scot Schermerhorn, Esq., Freeman & Schermerhorn, P.C.,
401 No. 31st, Suite 710, Box 7176, Billings, MT 59103
(Certified Mail)

Jeanne M. Bender, Esq., Beth Nedrow, Esq, Holland & Hart,
401 North 31st St., Suite 1500, P.O. Box 639, Billings, MT 59103
(Certified Mail)

/ml

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