Mingo Logan Coal Company

Plain-English summary

Nathan B. Harvey alleged that Mingo Logan Coal Company discharged him because of safety-related activity at its Mountaineer Mine. Judge T. Todd Hodgdon found that Harvey had not shown he engaged in protected activity or that the discharge was caused by such activity. The judge credited the company's evidence that Harvey was discharged because of a longstanding poor attitude and workplace conflicts. The discrimination complaint was dismissed, and no relief was awarded.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2) and (c)(3); 30 C.F.R. § 75.321
• Outcome: Harvey's discrimination complaint was dismissed.
• Key point: A discharge claim under section 105(c) requires proof that the employee engaged in protected activity and that the employer acted because of it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
January 8, 2002

NATHAN B. HARVEY, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEVA 2001-38-D
v. : HOPE CD 2000-01
:
MINGO LOGAN COAL COMPANY, : Mountaineer Mine
Respondent : Mine ID 46-06958

                                         DECISION

Appearances: Nathan B. Harvey, Complainant, Man, West Virginia, pro se;
Mark E. Heath, Esq., Heenan, Althen & Roles, LLP, Charleston, West Virginia,
and Anne Wathen O’Donnell, Assistant General Counsel, ARCH COAL, Inc., St.
Louis, Missouri, for Respondent.

Before: Judge Hodgdon

    This case is before me on a Complaint of Discrimination brought by Nathan B. Harvey

against Mingo Logan Coal Company under section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c). A hearing was held in Logan, West Virginia. For the reasons
set forth below, I find that the Complainant was not discharged by Mingo Logan because he
engaged in activities protected under the Act.

    Harvey filed a discrimination complaint with the Secretary of Labor’s Mine Safety and

Health Administration (MSHA), pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2),
on November 17, 2000.1 On January 30, 2001, MSHA informed him that, on the basis of its
investigation, it had determined that “a violation of Section 105(c) of the Act has not occurred.”
Harvey then instituted this proceeding with the Commission, under section 105(c)(3), 30 U.S.C.
§ 815(c)(3), on February 6, 2001.2

1
Section 105(c)(2) provides, in pertinent part, that: “Any miner . . . who believes that he has
been discharged, interfered with, or otherwise discriminated against by any person in violation of
this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary
alleging such discrimination.”
2
Section 105(c)(3) provides, in pertinent part, that: “If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary’s determinat ion, to file an action in his
(continued...)

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                                        Background

    Mingo Logan operates the Mountaineer Mine complex in Mingo County, West Virginia.

The complex is made up of two underground coal mines, one in the upper seam, known as the
Lower Cedar Grove, and the other in the bottom seam, known as the Alma A. There is a 50 foot
buffer between the two seams, but the mines are ent ered by a common portal. Mining is by
continuous mining, room and pillaring and longwall methods.

   Nathan Harvey began working at t he mine on March 31, 1993. He was hired because he

had electrical training and because he was certified, by the state of West Virginia, as a foreman.
During his time with the company he also became a certified electrician. For the most part, he
performed duties as an electrician, although on occasion he was asked to act as a foreman.
Harvey was fired on September 28, 2001.

    As a result of his termination, Harvey filed a discrimination complaint against the

company. In it, he stated: “I feel I was discriminated against because I complained to
management about being rock dusted, illegal equipment move practices and being forced to
participate in them by management, which was a safety hazard.” He later asserted at the hearing
that he had also expressed concern “about how much dynamite they were shooting at the Alma
Mines (sic).” (TrI. 178.)3

                        Findings of Fact and Conclusions of Law

    In order to establish a prima facie case of discrimination under Section 105(c) of the Act,

a complaining miner bears the burden o f establishing (1) that he engaged in protected activity and
(2) 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 (October 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984).

   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 the protected activity. Pasula, 2
FMSHRC at 2799-800. If the operator cannot rebut the prima facie case in this manner, it

2
(...continued)
own behalf before the Commission . . . .”
3
A separate transcript, beginning with page 1, was prepared for each day of the hearing. The
transcript for September 5 will be referred to as “TrI.” and t he transcript for September 6 will be
referred to as “TrII.”

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nevertheless may defend affirmatively by proving that it was also motivated by the miner's
unprotected activity and would have taken the adverse action for the unprotected activity alone.
Id. at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4t h Cir. 1987); Donovan v. Stafford Const. 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).

    I find that Harvey has failed to demonstrate that he engaged in protected activity. I

further find that, even if he did engage in protected activity, he did not show that his discharge
was motivated in any part by that activity, while the Respondent has convincingly established that
the discharge was in no part motivated by such activity.

                            Did Not Engage in Protected Activity

     Rock Dusting Complaint

    The Complainant testified that sometime in 1998, he was sent by his foreman, John

Morgan, to move some equipment and t hen to clean power distribution bo xes for the belt heads in
the two and three mains. He stated that during the time he was performing these tasks, the area
he was working in was rock dusted. As he described it, “while I was cleaning in the boxes and
stuff, when I got through, I looked out and I couldn’t see because of the dust. I couldn’t breathe,
so I had t o finally get over to fresh air.” (TrI. 92.) Harvey believed that this was done to him
intentionally.

     The evidence, however, is to the contrary. In the first place, almost all of the witnesses

testified that at least once in their career they had been rock dusted. None believed that it had
been done to them intentionally; all felt that it had been accidental. Furthermore, everyone knew,
including Harvey, that if they found themselves being rock dusted, they were to go to fresh air.

    With regard to the specific incident involving the Complainant, Benny Lee Blankenship,

Harvey’s brother-in-law, testified that he was the one doing the rock dusting that night and that
he did not intentionally rock dust the Complainant. Morgan, who had nothing to do with the rock
dusting, stated that he tried to find Harvey during the shift and could not. He denied that he
deliberately sent Harvey to work in an area that was being rock dusted.4

4
Morgan testified that:

             I was trying to find him because it had been quite a while since I’d
             heard from him and I couldn’t locate him, and I guess about 6:00 he
             came out and I asked him where [he]’d been. He said, “You know
             where I’ve been.” I said, “No, I don’t or I wouldn’t be asking.”
             He said “I’ve been up working in the rock dust where you sent
                                                                                    (continued...)

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     Carlos Porter, the shift foreman, testified that rock dusting was normally done on the

weekend, but that this was “an isolated incident. We had a dusty condition that needed to get
some rock dust on.” (TrII. 55.) He further stated that he was surprised that Harvey had been
rock dusted because Harvey was “a certified foreman, and everybody knows it’s a standard policy
that if you get in rock dust, to get in the intake and get out of the rock dust . . . .” (TrII. 53.)

   The Complainant has not cited any rules or regulations that prohibit rock dusting while

miners are working in the mine.5 Nor am I aware of any. Harvey has taken what was plainly an
unfortunate accident and attempted to turn it in to a personal vendetta. While complaining to
management about rock dusting when others are in the mine could be construed to be a safety
complaint, even though it is not prohibited, it is apparent in this instance that what Harvey was
complaining about was not that it was unsafe, but that it was done to him on purpose.

    There is no evidence to support that claim. Indeed, t he evidence is overwhelming that it

was not intent ional. Thus, it is apparent that Harvey was not making a safety complaint at the
time of the incident, but has decided since his termination that that was what he was doing. I
conclude that he was not engaging in protected activity at the time. Further, it is obvious that this
incident, which occurred at least three years earlier, is much too remot e to be connected to his
discharge even if it were protected activity.

      Equipment Move Practices

    Harvey testified that he conducted equipment moves in the mine and t hought he was do ing

a good job. However, he claimed that he later started getting concerned because people in the
mine were saying that the moves were not being performed legally. To make sure he was doing it
correctly, he stated that he asked Porter to talk him through a move. Even though Porter
informed him, after having Harvey relate to him how he conducted a move, that he was doing it
correctly, he began refusing to act as a foreman on moves. Although Harvey asserted at the
hearing that he did this because he still thought the move procedure was unsafe, he admitted that
he told his supervisors that it was because he did not get paid for it. (TrI. 101, 139.)

4
(...continued)
me.” And I told him, I said, “No, Nathan, I didn’t send you to
work in the rock dust. You could have come outby. You could
have went to fresh air intake. I did not intend for you to work in no
rock dust.”

(TrI. 223-24.)
5
He requested that I take judicial notice of section 75.321, 30 C.F.R. § 75.321, which deals
with “Air Quality.” (TrII. 55-56.) That regulation clearly has no application to rock dusting.

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    There is nothing in the record to support Harvey’s allegations on this issue. Indeed, the

evidence is compelling that, contrary to his assertion, he refused to perform equipment moves
because he felt that he was not being paid for being certified both as an electrician and a foreman.
For instance, on April 23, 1999, fo reman Malcolm Walls put the following in a memorandum:

                    On 4-23-99 we had 3 scoops to move. The outby ho urly
           certified foreman was off. Informed Nathan Harvey that Jim
           Davidson would be the new electrician & you would be the move
           foreman. He stated he would not be the move foreman. I ask why
           not and he replied that he didn’t want to use his foreman papers.

                    I told him that we paid him to use all his certificates. He
           said they didn’t pay him for being a certified foreman & he said he
           still didn’t want to use his certificate.

(Resp. Ex. 4.) When Walls reported this to Porter, Porter called Harvey in and asked him about
it. In the Incident Report that Porter wrote up after the discussion, he noted that Harvey “said we
should pay him an hour more to use his certification.” (Resp. Ex. 5.)

    Porter had a follow-up meet ing with Harvey on April 27. Porter then wrote the following

in an Incident Report:

                  I called Mr. Harvey in to discuss the problem about him not
           wanting to be the foreman on equipment moves.

                   I asked Nathan why he didn’t want to move equipment[.] I
           got the same reply as I did on 4-23-99, I don’t want to use my
           foreman’s certification, I don’t get paid enough and I don’t like the
           responsibility of being the foreman[.] I then said well that’s the
           way you feel about the matter and he said yes it is.

(Resp. Ex. 6.) Porter then had Harvey moved to another section where he worked only as an
electrician and did not have to use his foreman papers.6

    These memoranda are particularly significant because they were written at the time of the

incident when no one at the company had a knowledge that Harvey would be making a
discrimination complaint. No where is there any mention that Harvey believed the moves were
being conducted unsafely.

6
Interestingly, as a result of Harvey’s complaint, electricians with foreman papers were given a
10 cents an hour raise beginning in August 1999.

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      If Harvey really believed that the moves were unsafe, after Porter informed him he was

performing them correctly, there is no evidence that he ever told that to management. Porter,
who no longer worked for Mingo Logan at the time of the hearing, testified that Harvey never
claimed that the moves were unsafe. (TrII. 48.) Perhaps even more significantly, Harvey
surreptitiously made three tape recordings of conversations he had with four supervisors. These
conversations occurred with Porter in August 1998, (Comp. Ex. 7, Resp. Ex. 16.),7 with Gary
Griffith, maintenance supervisor, in March 2000, (Comp. Ex. 8, side A, Resp. Ex. 17), and with
Griffith and David Runyon, Mine Manager, in March 2000, (Comp. Ex. 8, side B, Resp. Ex. 18).
In all three of the tapes Harvey’s aversion to using his foreman papers to conduct moves was
discussed. In none of them does he claim, or even intimate, that he believes that the moves are
not safe and t hat is why he refuses t o make them.

    The evidence support s the company’s position that Harvey refused to use his foreman’s

papers for monetary, not safety, reasons. Accordingly, I conclude that Harvey did not engage in
protected activity concerning equipment moves. Furthermore, even if Harvey’s actions did
qualify as protected activity, since the alleged complaints occurred in 1998 and 1999, there is not
a coincidence in time between the protected activity and the adverse action.

   Mingo Logan’s Blasting Practices

    Harvey testified that “I had made some complaints because of the shots that were going

on at Alma, and there was a lot of talk between the men that they were shoot ing way too hard and
way too much and that somebody was going to get hurt.” (TrI. 106.) He admitted, however,
that he was not involved in the shooting. (TrI. 176.)

    Harvey claimed he informed an MSHA inspector about the blasting and that the inspector

later came to the mine and issued some citations concerning blasting violations. He also stated in
his opening statement, (TrI. 7), although not when he testified under oath, that he complained to a
mine foreman about the blasting.

     If Harvey, in fact, made such complaints, they would clearly be protected activity.

Inasmuch as he did not mention this activity when he filed his discrimination complaint, however,
it is doubtful that, if he had any concerns at all about the company’s blasting policies, he never did
more than voice them to other miners. There is no evidence that he ever complained to
management about it or that management was in any way made aware of his concern.

    Although Harvey admitted that he did not tell management that he believed the company

was blasting unsafely and that he was not aware that the MSHA inspector had told management
that he was the miner who had complained, (TrI. 171-72), he hypothesized that two foreman may
have seen him talking to the inspector and “that Mingo Logan assumed I had called” the

7
The Complainant’s exhibit is the tape of the conversation, the Respondent’s exhibit is a
transcript of the tape.

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inspector. (TrI. 109.) However, one of the two foremen that he named testified credibly that he
recalled that the inspector in question inspected the mine on several occasions but that he did not
recall seeing Harvey talking with him. (TrII. 7-9.)

    Thus, even if Harvey did complain to MSHA about blasting safety, there is no evidence

that the company management was aware of his complaints. Accordingly, I find that Harvey did
not engage in protected activity with regard to his alleged blasting complaints.

                       Discharge Not the Result of Protected Activity

     The evidence does not support the Complainant’s claim that he engaged in protected

activity. However, even if Harvey’s unsupported claims are accepted at face value, he has offered
no evidence to connect his activity with his discharge. As nearly as can be discerned, none of the
activity occurred in proximity to his dismissal. On the other hand, the record conclusively
substantiates Mingo Logan’s claim that it fired Harvey because of his “bad attitude” and not
because of any safety co mplaints made by him.

     It appears that initially Harvey was viewed as a good employee, but that about three years

prior to his termination, his att itude began going downhill. As Porter, who worked with him the
entire time he was at the mine, testified:

                    It got really bad. You couldn’t do anything to help him. It
            was like he had a grudge against the world, a chip on the shoulder
            type attitude.

                     He showed it by anything you tried to do to help him, he
            didn’t get along with employees anymore, his co-workers, he didn’t
            get along with them. He didn’t get along with his foremen, and like
            I said, I talked to him several times abo ut it, and there was no
            helping him. He didn’t want any help.

(TrII. 37-38.) Griffith testified:

                    His attitude just changed. He went from having an
            acceptable attitude and trying to do what I considered a decent job
            to one of just not caring, not wanting to do what he was assigned
            to do, and just didn’t care whether he done anything or not. He
            just             appeared to be irate all the time. So
                            it went from acceptable to very poor.

(TrI. 259.)

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    The record is replete with evidence of miners telling their supervisor that they did not

want to work with Harvey, of Harvey refusing to speak to supervisors, even going so far as not
acknowledging receipt of work assignments, o f his failing to check back with supervisors to find
out his next assignment after completing one, of supervisors having to check up on him to make
sure he was doing his job and of his otherwise uncooperative attitude.

   Harvey’s actions on his final day of work, which precipitated his discharge, provide a

good example of the reasons for his termination. On the morning of September 27, he was
assigned to go to the Alma mine with another electrician to work on some belts that were down.
When he got to the Alma entrance he delayed getting into the mantrip to go into the mine.
Harvey admitted that he caused a delay, but claimed that he was just “clowning around.” (TrI.
116-17.) Evidently, he was the only one who tho ught it was funny, because the foreman at the
Alma mine reported the incident to Harvey’s supervisor, Bob Tilley.

    Later that day in the electricians’ shop, Tilley instructed Harvey to get his gear together to

go underground to work on another belt. According to Tilley, Harvey reacted to these
instructions by taking small, slow steps toward his locker, while looking at the ceiling. As a
result, Tilley, who, had been receiving complaints about Harvey for three or four weeks, “was
upset with the way [Harvey] walked to the back room” and “already had one foreman
complaining to me that morning about him,” called Harvey into his office for a meeting. (TrI.
318.)

    Tilley, who even the Respondent admitted was one of the easiest-going foreman at the

mine, began by asking Harvey “why he wouldn’t talk to [him] or the other men and why he
wasn’t doing his job like he should.” (Resp. Ex.. 9, TrI. 318.) Harvey responded by complaining
that he was always assigned the worst jobs and that Tilley did not consider him as good as an
electrician as the other men. Harvey concluded by stating that “he would start doing his job when
he was treated like everyone else.” (Resp. Ex. 9.)

    Tilley, still aggravated by Harvey’s attitude, reported the matter to Griffith, his supervisor.

When Griffith heard the story, he “couldn’t believe it” since he considered Harvey’s response to
be insubordination. (TrI. 274.) As a result, Griffith went to Runyon and recommended that
Harvey be discharged. Runyon did not want to do that because the company had a shortage of
electricians. Instead, he decided to have a meeting with Harvey to give him a chance to agree to
change his attitude, straighten up and try to be a better employee.

    Runyon, Griffith and Buddy Johnston, Mingo Logan’s Human Resources Manager, met

with Harvey on September 28. Runyon testified that he began the meeting by going through the
three year history of the company’s problems with Harvey’s attitude, noting that his attitude had
gotten progressively worse to the po int that no one wanted to work with him. Runyon then told
Harvey that the problem had become so serious that something had to be done, that his attitude
had to change. Harvey responded: “I don’t have a bad attitude; you-all got a bad attitude.” (TrII.

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106-7.) When Runyon asked Harvey if he understood how serious the situation had become,
Harvey said: “You’re telling me I’m fired. Are you telling me I’m fired?” (TrII. 105.)

    In response to this, Runyon reiterated that the purpose of the meeting was not to fire

Harvey, but to get him to commit to changing his attitude. Again Harvey asked: “Are you telling
me I’m fired?” At that point, Johnston, who thought that Harvey was being very combative and
antagonistic, said: “Is that what you want, Nathan? Do you want us to fire you?” (TrI. 197, TrII.
106.) As this type of dialogue continued, it became apparent that no progress was being made, so
the three men asked Harvey to step out of the room.

    The three supervisors then discussed what had occurred. Johnston and Griffith were of

the opinion that Harvey had to be discharged. Runyon wanted to give him one more chance to
say that he would try to improve. They called Harvey back in. Runyon testified that:

                   I moved my chair from around the desk. I got real close to
           him where I could see him, you know, eyeball to eyeball, and I said,
           “Nathan,” I said, “Buddy, do you understand how serious this is
           today? I’m telling you your problems, what you got. I went
           through this whole conversation and I’ve explained everything to
           you.” I said, “We’re at the crossroads here. We’ve got to have
           change today.” I said, “It can’t go on like this.” I said, “We have
           to have something change today.” I said, “We can’t have your
           attitude like this no more. You’re going to have to commit to me
           you’re going to change.”

(TrII. 110.)

   Harvey’s response was, “Are you firing me?” (TrII. 110.) Runyon then asked Harvey if

he wanted to resign and when he said he would not, told him that he was fired. Harvey got up
and said, “Fine. You’ll hear from my lawyer,” and left. (TrII. 110-11.)

    Johnston and Griffith corroborated Runyon’s testimony. They agreed that Harvey never

acknowledged that he had an attitude problem or agreed to make any changes. Harvey’s
testimony does not differ in any major respects from the company’s testimony on this meeting.
(TrI. 118-20.) Nevertheless, if it did, I would credit the testimony of Runyon, Johnston and
Griffith.

    The Company has established that about three years before his termination, Harvey began

displaying what can only be characterized as a bad attitude. He refused to serve as a foreman on
equipment moves, not because he thought they were unsafe, but because he felt he should be paid
extra for doing them. When his request to t rade shifts with ano ther electrician was turned do wn,
he even went so far as to go to the personnel office and request that the additional pay that he was
receiving for acting as a foreman on equipment moves be stopped since he was no longer going to

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perform that function. When questioned by management about this, he responded: “You scratch
my back, I’ll scratch yours.” (Comp. Ex. 8, Resp. Ex. 18 at 1.)

    Supervisors frequently had to check up on Harvey to find out what was taking him so long

to do a job or to make sure he had completed a job. On at least one occasion, he refused to go
back to the surface to find out what additional work needed to be done, after completing an
assigned task, and when the electrician he was working with insisted on doing so, he called the
electrician “a big suck.” (TrII. 14.) By the time he was fired, he had trouble with every
supervisor he had worked for and even his fellow electricians told their foremen that they would
rather work alone than work with him.

    The company’s evidence in this case that Harvey was fired for his bad attitude and not

because of any protected activity he may have engaged in is both considerable and credible.
Perhaps the best indication of the veracity of Mingo Logan’s evidence is that the tapes which
Harvey secretly made of three conversations with company management personnel all corroborate
the testimony of the company witnesses, rat her than Harvey.

                                        Conclusion

    Harvey has failed to show either that he engaged in protected activity or that he was

discharged for engaging in that activity. Harvey’s being accidentally rock dusted, while
unfortunate, was not engaging in protected activity. His concern with equipment moves was
primarily monetary, but even if he also really had safety concerns, those concerns were either not
conveyed to management or were adequately responded to by management. His problem with
blasting seems to have arisen after his discharge, and to be based mainly on hearsay and
supposition. Nonetheless, if he really did have such concerns, there is no evidence that they were
ever communicated to anyone in management. In addition, there is no concurrence in time
between any of this activity, most of which occurred several years earlier, and the discharge. In
contrast, the Respondent has amply demonstrated that Harvey was fired because of his
longstanding bad attitude and not because of any protected activity in which he may have
engaged.

                                          Order

   Accordingly, since the Complainant has not established that he was discharged for

engaging in activity protected under the Act, it is ORDERED that the complaint of Nathan B.
Harvey against Mingo Logan Coal Company is DISMISSED.

                                         T. Todd Hodgdon
                                         Administrative Law Judge


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Distribution:

Nathan B. Harvey, P.O. Box 14, Main WV 25635

Mark E. Heath, Esq., Heenan, Althen & Roles, 1380 One Valley Square, P.O. Box 2549,
Charleston, WV 25329

Anne Wathen O’Donnell, Assistant General Counsel, Arch Coal, Inc., CityPlace One, Suite 300,
St. Louis, MO 63141

/nt

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