Secretary of Labor on behalf of Richard B. Harrison v. Consolidation Coal Co.

Plain-English summary

Richard Harrison was a beltman at the Loveridge No. 22 Mine who had previously filed a discrimination complaint and participated in Mine Act proceedings. In 2015, he raised concerns that a production-based bonus plan would encourage miners to put production ahead of safety, then returned a voided bonus check with a profane message. Consolidation Coal terminated him several weeks later and argued that the message and his initial denials about writing it justified the action. Judge Janet G. Harner found the Secretary had presented nonfrivolous evidence of protected activity and a connection between that activity and the discharge, including management knowledge, timing, and possible hostility. She ordered Harrison immediately reinstated pending resolution of the discrimination claim.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: Richard Harrison was ordered temporarily reinstated to his former or an equivalent position with the same pay, hours, and benefits.
• Key point: At the temporary-reinstatement stage, a miner need only present a nonfrivolous claim, and profanity does not automatically strip a safety protest of Mine Act protection.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

on behalf of RICHARD B. HARRISON,

Complainant,

v.

CONSOLIDATION COAL CO.[1],

Respondent.

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. WEVA 2015-811-D

MSHA Case No.: MORG-CD 2015-20

Mine: Loveridge #22

Mine ID: 46-01433

DECISION AND ORDER

REINSTATING RICHARD B. HARRISON

Appearances:               Jordana L. Greenwald, Esq., Office of
the Solicitor, U.S. Department of Labor, Philadelphia, PA, Representing the Secretary
of Labor      

Philip K. Kontul, Esq. &
Michael D. Glass, Esq., Ogletree, Deakins, Smoak, Nash & Stewart P.C.,
Pittsburgh, PA, Representing Respondent

Before:            Judge Harner                         

On June 9,
2015, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977 (“Act”), 30 U.S.C. §801, et. seq., and
29 C.F.R. §2700.45,
the Secretary of Labor (“Secretary”) filed an Application for
Temporary Reinstatement of miner Richard B. Harrison (“Harrison” or
“Complainant”) to his former position with Consolidation Coal Co., (“Consolidation” or “Respondent”)
at Loveridge #22 Mine pending final hearing and disposition of the case.

The
application followed a Discrimination Complaint filed by Harrison on May 6,
2015, that alleged, in effect, that his termination was motivated by his
protected activity. The Secretary represents that this Complaint was not
frivolously brought and requests an Order directing Respondent to reinstate Harrison
to his former position as a beltman.

Respondent filed
a timely motion requesting a hearing regarding this application on June 22,
2015, wherein it summarized its position. A hearing was held in Pittsburgh, PA
on June 26,

2015.[2]
The Secretary presented the testimony of the Complainant. Respondent had the
opportunity to cross-examine the Complainant and present testimony and
documentary evidence in support of its position. 29 C.F.R. §2700.45(d).

For the
reasons set forth below, I grant the application and order Consolidation Coal
and/or its successors to temporarily reinstate Harrison.

Discussion of Relevant Law

Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine Act. The
purpose of the protection is to encourage miners “to play
an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be encouraged
to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their
participation.” S. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 623
(1978).

Congress
created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period
of unemployment or reduced income pending the resolution of the discrimination
complaint.” S. Rep. No. 181, 95th Cong., 1st Sess.
36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 624-25 (1978).

Temporary
Reinstatement is a preliminary proceeding, and narrow in scope. As such,
neither the judge nor the Commission is to resolve conflicts in testimony at
this stage of the case. Sec’y
of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July
1999). The substantial evidence standard applies.[3]
Sec’y
of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425,
2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of
determining “whether
the evidence mustered by the miners to date established that their complaints are non-frivolous, not whether
there is sufficient evidence of discrimination to justify permanent
reinstatement.” Jim
Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).

In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought if it “appears
to have merit.” S. Rep. No. 181, 95th Cong.,
1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress’ “appears
to have merit” standard, the Commission and
the courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor on behalf of Price v.
Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920
F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that
establishing ‘reasonable cause to believe’ that a violation of the statute has
occurred is a ‘relatively insubstantial’ burden.” Sec’y of Labor on behalf
of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3 (Aug. 2012) citing Schaub
v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir.
2001

In order to establish a prima facie case of
discrimination under section 105(c) of the Act, a complaining miner must
establish (1) that he engaged in protected activity and (2) that the adverse
action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).

In the instant matter, the Secretary and Harrison need not
prove a prima facie case of discrimination with all of the elements
required at the higher evidentiary standard needed for a decision on the
merits. Rather, the same analytical framework is followed within the
“reasonable cause to believe” standard. Thus, there must be “substantial
evidence” of both the applicant’s protected activity and a nexus
between the protected activity and the alleged discrimination. To establish the
nexus, the Commission has identified these indications of discriminatory
intent: (1) hostility or animus toward the protected activity; (2) knowledge of
the protected activity; and (3) coincidence in time between the protected
activity and the adverse action. Sec’y
of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has
acknowledged that it is often difficult to establish a “motivational nexus between protected activity and the
adverse action that is the subject of the complaint.” Sec’y of Labor on behalf of
Baier v. Durango Gravel, 21 FMSHRC 953,
957 (Sept.1999). The Commission has further considered disparate treatment of
the miner in analyzing the nexus requirement. Secretary of Labor on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds,
709 F.2d 86 (D.C. Cir. 1983).

The Petition for Temporary Reinstatement

On
May 6, 2015, Harrison executed a Summary of Discriminatory Action, which was
filed with his Discrimination Complaint. In this statement he alleged the
following:

I am a miner who feels that
I have been wrongfully terminated based upon a previous 105(c) that was filed
on my behalf, which I withdrew due to a settlement being reached. In the
settlement an agreement was made that these records were going to be removed
from my file. Recently these records were used against me in an arbitration. I
believe this was a form of retaliation.

Application for Temporary
Reinstatement at Exhibit B, p. 2.

The Secretary also submitted with the Application the June 8, 2015
Declaration of Jeffrey C. Maxwell, a Special Investigator employed by the Mine
Safety and Health Administration (“MSHA”). Maxwell made the following findings
and conclusions:

2)      As
part of my responsibilities, I investigate claims of discrimination by miners
filed under Section 105(c) of the Mine Act. In this capacity, I have reviewed
and gathered information as part of an ongoing investigation of the
discrimination claim of Richard B. Harrison filed against Consolidation Coal
Company (“CCC”). My review of the information gathered in this investigation
disclosed the following:

a)      Mr.
Harrison was employed as a beltman at CCC’s Loveridge #22 Mine.

b)      Mr.
Harrison filed a Section 105(c) complaint in 2008 concerning an “unsafe act”
slip placed in his personnel file at that time. Mr. Harrison withdrew his 2008
complaint as part of the resolution of his grievance concerning the same
“unsafe act” slip. CCC agreed, as part of the resolution of the grievance, to
remove the “unsafe act” slip from Mr. Harrison’s record.

c)      Mr.
Harrison raised concerns with management about the safety-related impacts of a
bonus plan proposed and implemented by management in January 2015.

d)     Mr.
Harrison further objected to the bonus plan by voiding and later returning his
check to CCC. Mr. Harrison was angry about the company’s decision to implement
the plan and about the impact that he believed the plan would have on safety.
In addition to writing “VOID VOID” on the check he received on February 6,
2015, he also wrote “KISS MY ASS, BOB.”

e)      The
company took no action at the time Mr. Harrison returned his check. Mr.
Harrison heard nothing further until March 7, 2015.

f)       The
company learned of Mr. Harrison’s check only because they reviewed all returned
checks on March 6 or 7, 2015, after discovering that another employee wrote a
message on a returned check.

g)      On
March 13, 2015, Mr. Harrison was suspended with intent to discharge for
allegedly violating Employee Rule of Conduct No. 4, which provides that

In
order to minimize the occasions for discipline or discharge, each employee
should avoid conduct which violates reasonable standards of an
employer-employee relationship including:

…

4.
Insubordination (refusal or failure to perform work assigned or to comply with
supervisory direction) or use of profane, obscene, abusive, or threatening
language or conduct toward subordinates, fellow employees, or officials of the
company.

h)      Mr.
Harrison alleges that Employee Rule of Conduct No. 4 is not consistently
enforced at the Mine.

i)       
Mr. Harrison, who was represented by the UMWA in his dealings with CCC
management, grieved his termination and requested an arbitration hearing.

j)       
During the arbitration hearing held on April 3, 2015, CCC management
presented the 2008 “unsafe act” slip as part of Mr. Harrison’s disciplinary
history in support of his termination.

k)      On
April 27, 2015, the arbitrator issued a decision upholding Mr. Harrison’s
termination. The decision relied, at least in part, on Mr. Harrison’s
disciplinary record.

3)      Based
upon the information available as the result of the special investigation being
conducted in these matters, I have concluded that there is reasonable cause to
believe that Mr. Harrison was discharged from his employment with CCC because
he filed a prior Section 105(c) complaint and because he protested the implementation
of the bonus plan. There is, therefore, reasonable cause to believe that Mr.
Harrison’s termination violated Section 105(c) of the Mine Act, and the
complaint filed by Mr. Harrison was not frivolous.

Application
for Temporary Reinstatement at Exhibit A, p. 1-3. The Secretary
cited this declaration as a basis for the formal request for temporary
reinstatement. Application for Temporary Reinstatement at 4.

Joint Stipulations:

At hearing, the parties
orally submitted the following Joint Stipulations:

1)     
At all
relevant times, Consolidation Coal Company was the operator of Loveridge #22
Mine near Marion County, West Virginia.

2)     
Loveridge #22
Mine is a mine as that term is defined in Section 3(h) of the Mine Act, 30
U.S.C. Section 802(h).

3)     
At all
relevant times, products of Loveridge #22 Mine enter commerce or the operations
or products thereof affected commerce within the meaning and scope of Section 4
of the Mine Act, 30 U.S.C. Section 803.

4)     
Consolidation
Coal Company is an operator as that term is defined in Section 3(d) of the Mine
Act, 30 U.S.C. Section 802(d).

5)     
Richard B.
Harrison worked at Loveridge #22 Mine and is a miner within the meaning of
Section 3(g) of the Mine Act, 30 U.S.C. 802(g).

6)     
Consolidation
Coal Company is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission.

7)     
The presiding
administrative law judge has authority to hear this case and issue a decision
regarding this case.

8)     
Marion County
Coal Company is a successor in interest to Consolidation Coal Company.

Tr. 6-7.[4]

Summary of Testimony[5]

Richard B. Harrison was a general
inside worker at the Marion County Coal Mine[6] at the Sugar Run Portal
on A shift before he was terminated. Tr. 17. He had worked in this position for
approximately three years. Tr. 17. Prior to this position, he worked at the
mine as a regular bolter, on belt crew, and as a precision mason, for a total
of 10 years. Tr. 18. Prior to working at Loveridge #22 Mine, Harrison worked at
Sago Mine as a general contractor for one year. Tr. 18.

Murray Energy purchased the instant
mine from Consol Energy Inc. in December 2013. Tr. 21. Harrison and the other
miners at Loveride #22 were represented by the United Mine Workers of America
(“UMWA”) prior to the purchase, and the UMWA has continued to represent the
miners at the mine. Tr. 21.

Harrison has served as the union
walk-around for 9 years, and was previously on the union safety committee for
six months. Tr. 19. As a walk-around, Harrison would accompany inspectors on
inspections. Tr. 19. As a result of this position, Harrison testified as a
witness for MSHA in two court proceedings, one in 2006 and one in 2009. Tr.
19-20.

After Murray Energy purchased the
mine, CEO Bob Murray had an initial meeting for every shift where he informed
the miners that he reviewed previous violations that ended up in court, and
knew how much those violations cost the company and who served as witnesses.
Tr. 22-23. Harrison understood these statements to mean that Murray and other
mine management were aware of his court appearances on behalf of MSHA, and that
he had cost the company money. Tr. 22-23.

In January 2015, the mine
instituted a new production-based bonus program, wherein miners’ bonus checks
would be tied to the amount of coal extracted. Tr. 26-27. This was after UMWA
Local 9909 came to an agreement with management that it would hold a vote on
the bonus plan to determine if its members approved of the Respondent’s
proposed plan. Tr. 24-25. The vote was held in January, and the members voted
to turn down the bonus plan. Tr. 25.

Respondent nevertheless proceeded
with implementation of the new bonus plan, and miners were told that if they
did not agree with the bonus plan, they had the option to opt out by writing
“void” on the first bonus check and returning it. Tr. 24-26, 30-31. Harrison
was not aware of any other means of opting out of the plan. Tr. 26. Shortly
before the checks were issued, Harrison explained his safety concerns about the
bonus plan to the Sugar Run Portal superintendent John Larry and the portal
safety director Wayne Conaway. Tr. 46-48. They responded to Harrison’s safety
concerns, saying, “Why would you complain about free money? Take the money and
run.” Tr. 48.

Harrison received his bonus check
dated February 6, 2015 in early February. Tr. 23-24. The check was for $11.58,
and was signed by Robert E. Murray. GX-1. Harrison wrote “VOID VOID KISS MY ASS
BOB,” and returned the check to Sonya Singleton in the payroll office
the day after he received it. Tr. 24, 31, 33; GX-1.

Harrison opted out of the bonus
plan because he felt that the way the program was set up placed the miners’
“safety for sale because…the more coal you got, the bigger the bonus.” Tr. 26.
Harrison testified that he had discussions with other miners and many agreed
with him. Tr. 27. Other miners returned their bonus checks.[7]
Tr. 68, 72. Harrison knew that another miner named Jesse Stolzenfels wrote on
his check, “Eat Shit, Bob,” and was subsequently terminated. Tr. 68-69, 104.

Harrison testified that he wrote
the statement on the check because he had recently experienced various serious
health and family issues, which led to a great deal of stress. Tr. 28-29.
Harrison and others believed that the bonus checks constituted a safety issue,
and testified that he felt “Mr. Murray felt it was okay to go ahead and
override our vote.” Tr. 28-29. Harrison believed that the company would know
that his returned check was a safety complaint because he had spoken with
several company bosses about the safety implications of the bonus plan. Tr. 67.

Harrison testified that safety at
the mine has “dropped tremendously.” Tr. 29. He described increased citations,
especially for problems in rock dusting. Tr. 29-30. Harrison explained that he
believed that the production-based bonus program would make matters worse,
leading miners to conclude “why take the time to rock dust. You’re taking my
money away from me. We need to get in the coal.” Tr. 29-30. Harrison explained
that the safety implications of the bonus plan upset him. Tr. 103. “It all
comes back to the safety issue. If you don’t have safety, you’re dead in the
coal mine. That’s all there is to it.” Tr. 103.

Harrison posted a picture of his
check with the written statement on UMWA Local 9909’s Facebook page. Tr. 69,

98. The Local’s Facebook page was private and used by miners to talk about work
    matters. Tr. 99. As part of an ongoing discussion about the bonus plan on the
    Facebook page, other miners were posting photos of their voided checks to show
    their disagreement with the bonus plan. Tr. 69, 99-100.

On March 6, management first
confronted Harrison about his voided check. Tr. 33-34. At that time, Harrison
did not admit to management that he wrote “Kiss My Ass Bob” on the check
because he was scared of losing his job and health insurance.[8]
Tr. 34, 73-75. He believed that by fighting for miners’ safety, his job was at
risk. Tr. 34. Mine management did an investigation to find out who wrote on the
check. Tr. 35.

Respondent brought Harrison back
for another meeting on March 13 with Mr. Hudson and Pam Layton from Human
Resources, and a union representative. Tr. 35-36, 41. They explained that they
could not find the person who wrote on the check, and that he was going to be
terminated. Tr. 35-36, 39. The only matter discussed during this meeting was
the check. Tr. 40-41. On that date, Harrison was issued a letter explaining the
suspension with intent to discharge. Tr. 39, 40; RX-3. The letter stated that
the reason for the action was Harrison’s writing “Kiss My Ass Bob” in violation
of Conduct Rule No. 4, which defines insubordination and mentions the use of
profane language. RX-3.

On the following day, on March 14,
Harrison had his 24-48 hour meeting.[9] At this meeting on March
14, Harrison again denied writing on the check. Tr. 75. At this meeting, it
came out that a fellow miner named Tim Cox would corroborate that Harrison did
not write the phrase on the check. Tr. 76-77. During this meeting, Respondent
officials asked Harrison why he posted the check on Facebook, and he responded
that he thought it was funny. Tr. 69.

A day or two after the 24-48 hour
meeting, Harrison admitted to the union representative that he had written
“Kiss My Ass Bob” on the check. Tr. 78-79. He and the union
representative then went to the portal to meet with Mr. Hudson from the company
and Harrison admitted to Hudson that he wrote the statement on the check,
explained why he did so, why he originally denied it, and apologized for lying.
Tr. 36-41, 46, 78-80. He explained that “after ten years being on the
walk-around, being in the hole, seeing the violations that they’re getting,
they were basically putting our safety for sale.” Tr. 46. Hudson told Harrison
that his admission will count in his favor. Tr. 80.

Harrison requested arbitration. Tr.

41. At the arbitration hearing, Respondent presented into evidence the unsafe
    work act slip from 2008. Tr. 42. Harrison was surprised because the grievance
    settlement agreement required the company to remove the unsafe work slip from Harrison’s
    file in exchange for Harrison withdrawing his 105(c) complaint. Tr. 42; GX-2.
    Prior to seeing the slip at the arbitration, Harrison was not aware that it was
    still in his file. Tr. 43.

Pam Layton had filled out the
grievance settlement in 2008, which stated “the unsafe slip will be removed
from the file for the employee.” Tr. 45; GX-2. At the arbitration, Layton said
she did not know about the 105(c) and the agreement to remove the slip from his
file. Tr. 49-50. Layton took a leading role in Harrison’s termination. Tr. 45.
She was present in all the meetings and was involved in the decision to
terminate Harrison. Tr. 45-46.

The arbitrator’s award notes that
Harrison does not have a spotless record, but it does not mention the 2008
incident explicitly. Tr. 54-55; GX-3, 7. Other than the unsafe act slip, the
company mentioned Harrison’s participation in the absentee plan for his kidney
problems. Tr. 55. They also mentioned a grievance he filed concerning the
company’s denial of Harrison’s request to have a union representative present
during a drug test. Tr. 57. There was no other evidence submitted at the arbitration
about disciplinary action, and Harrison received no other disciplinary action
at the mine that the arbitrator could have been referencing. Tr. 55-58.

Contentions of the Parties

The
Secretary argued at hearing that Harrison engaged in at least three types of
protected activities: (1) Harrison filed a Section 105(c) complaint in 2008 for
an unsafe act allegation that was made and placed in his personnel file. As
part of a settlement, Harrison withdrew his 105(c) complaint and the company
agreed to remove the slip from his personnel file. Tr. 10-11; (2) Harrison has
served as a walk-around with inspectors, and has testified in two Federal Mine
Safety & Health Review Commission (“FMSHRC”) proceedings concerning safety
issues; and (3) Harrison returned a bonus check and wrote a message that
included a profane term on it, because he believed the bonus plan put miners’
safety at risk. Tr. 12. The Secretary argued that the return of the bonus check
was part of an ongoing series of concerns that were voiced by both Harrison and
the union to management about the bonus plan. Tr. 12.

The
Respondent did not contest that an adverse employment action had occurred, but
rather argued that Harrison’s statement on the check, as well as his subsequent
denials, constituted a legitimate reason for his termination. Tr. 14. Furthermore,
the Respondent argued that the arbitration decision did not cite to the 2008
safety issue. Tr. 16.

Findings and
conclusions

Protected
Activity and Adverse Employment Action

Harrison was
fired on March 14, 2015, and none of the parties argued that this does not
constitute an adverse employment action. According to
the Act and well-settled Commission precedent, suffering a discharge or
a demotion is an adverse employment action. 30 USC § 815(c)(1); see also Moses v. Whitley Dev. Corp., 4 FMSHRC
1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985). Therefore,
the main issues in this case involve whether Harrison engaged in protected
activities, and whether a nexus exists between his protected activities and the
termination of his employment.

As discussed supra,
to obtain a temporary reinstatement a miner must raise a non-frivolous claim
that he engaged in protected activity with a connection, or nexus, to an
adverse employment action.

Under the Act,
protected activity includes filing or making a complaint of an alleged danger,
or safety or health violation, instituting any proceeding under the Act,
testifying in any such proceeding, or exercising any statutory right afforded
by the Act. See 30 U.S.C. § 815(c)(1); See also Sec’y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).
According to the legislative history:

The Committee intends that
the scope of the protected activities be broadly interpreted by the Secretary,
and intends it to include not only the filing of complaints seeking inspection…
or the participation in mine inspections… but also the refusal to work in
conditions which are believed to be unsafe or unhealthful and the refusal to
comply with orders which are violative of the Act or any standard promulgated
thereunder, or the participation by a miner or his representative in any
administrative and judicial proceeding under the Act.

(S. Rep. No. 181, 95th Cong., 1st Sess. 35-36 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.
2nd Sess., Legislative History of the Federal Mine Safety and Health Act of
1977 (1978). Further, “the listing of
protected rights contained in section [105(c)(1)] is intended to be
illustrative and not exclusive.” Id.

In
the instant case, the Secretary argues that Harrison engaged in at least three
types of protected activities: filing a 105(c) complaint in 2008, testifying at
FMSHRC proceedings on behalf of MSHA in 2006 and 2009, and making safety
complaints concerning the bonus plan in 2015. With respect to protected
activity, the Respondent argued that Harrison’s writing “Kiss My Ass Bob”
on the bonus check was not protected and provided legitimate cause for his
termination.

Harrison’s
2008 filing of a 105(c) complaint, as well as his participation at FMSHRC
proceedings in 2006 and 2009, are clearly protected activities. Indeed, these
activities are specifically enumerated in the Act as protected activities. See 30
U.S.C. § 815(c)(1).

Safety
complaints made by Harrison concerning the company’s bonus plan also constitute
protected activity. Harrison made clear in his testimony that his objections to
the bonus plan were based on the safety implications of the program. Tr. 26-29,
46-48. Prior to the implementation of the plan, Harrison spoke with various
company bosses about his safety concerns with the plan. Tr. 67. Harrison
testified that he voted against the bonus plan because he feared that it would
diminish safety at the mine. Tr. 24-25. Then, right before the checks were
issued, Harrison had conversations with the portal superintendent, John Larry,
and the portal safety director, Wayne Conway, explaining his safety concerns
with Respondent’s bonus plan. Tr. 48.

When the checks
were issued in spite of Harrison’s and other miners’ serious safety concerns,
Harrison protested by way of the only means available to him. The miners were
told that if they wanted to opt out of the bonus program, they were to write
“void” on the check and return it to the company. Tr. 24-26, 30-31. This was
precisely what Harrison did. Tr. 24. Harrison’s further written statement,
“Kiss My Ass Bob,” does not transform Harrison’s protected activity in
voicing a safety concern into unprotected activity because of the use of a
swear word. Indeed, his statement on the check appears to emphasize his
frustration with the bonus program that was implemented despite the fact that
the union voted against the plan.

It should first
be noted that though Harrison did not explicitly reference his safety
objections to the bonus plan on the check, his previously voiced safety
concerns would have made the reasons for his actions immediately apparent to
Respondent. Harrison’s writing and return of the check was part of an ongoing
conversation about the safety implications of the bonus program. Indeed, to
paraphrase Harrison’s supervisors, why else would anyone turn down free money?
The answer, as Harrison made clear, is that the money was not in fact free. The
bonus program was production-based, and Harrison felt that the program was
“basically putting our safety for sale.” Tr. 46.

Though
Harrison’s writing “Void Void Kiss My Ass Bob” may not have been the
most articulate means of making a safety complaint, the use of a swear word
does not change the nature of Harrison’s action. The Commission has repeatedly
held that the use of profanity does not remove protected activity from coverage
under the Mine Act. See Sec’y obo Bernardyn v. Reading Anthracite Co.,
23 FMSHRC 924 (Sept. 19, 2001); Amos Hicks v. Cobra Mining, Inc., Jerry K.
Lester, and Carter Messer, 13 FMSHRC 523 (Apr. 1, 1991); Sec’y obo
Cooley v. Ottawa Silica Co., 6 FMSHRC 516 (Mar. 30, 1984). One must
consider the context in which the comment was made—this is a mine, not a
nursery—and whether the company strictly enforced a policy prohibiting
profanity. In this record, there is scant evidence of a policy, as only an out
of context sentence fragment entitled “Conduct Rule No. 4” quoted in the
termination letter (RX-3) and an arbitrator’s decision (GX-3), has been
introduced into evidence. On cross examination, although the Respondent’s
attorney asked Harrison about Stolzenfels writing “Eat Shit, Bob” on his check
and his subsequent termination, Harrison knew little about the details of
Stolzenfels’s situation. Tr. 68-69, 104.

The Commission
is not alone in concluding that the use of profanity does not make an act per
se unprotected. The National Labor Relations Board, which Commission
decisions often look to for guidance in discrimination cases,[10]
has similarly held that one must consider the context, and balance the
employee’s rights against the employer’s need to maintain order. For example,
in Plaza Auto Center, Inc. and Nick Aguirre, the Board stated:

The Atlantic Steel
balancing test presupposes that “not every impropriety committed during
[otherwise protected] activity places the employee beyond the protective shield
of the [A]ct.” NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.
1965). This is so because “[t]he protections [that] Section 7 affords would be
meaningless were [the Board] not to take into account the realities of
industrial life and the fact that disputes over wages, hours, and working
conditions are among the disputes most likely to engender ill feelings and
strong responses” (Consumers Power Co., 282 NLRB 130, 132 (1986)), and
that the language of the workplace “‘is not the language of ‘polite society’. 'D''
Stanford Hotel, 344 NLRB 558, 564 (2005) (citation omitted). Thus, the
employee's right to engage in concerted activity permits “some leeway for
impulsive behavior.” NLRB v. Thor Power Tool Co., 351 F.2d at 587.
Still, the right to engage in concerted activity is not absolute and must be
balanced against the employer's need to maintain order and respect in its
establishment. See Thor Power Tool Co., 148 NLRB 1379, 1389 (1964), enfd.
351 F.2d 584, 587; Caterpillar, Inc. 322 NLRB 674, 677 (1996).

360 NLRB No. 117 at 10 (May
28, 2014). This reasoning applies as strongly to the instant case, where one
must take into consideration the realities of the mine and the fact that
disputes about health and safety are “likely to engender ill feelings and
strong responses.”

Furthermore, the
Respondent’s argument must fail if it is found that Harrison was provoked into
writing a profanity on the check. The Commission has held “that an employer
cannot provoke an employee into an indiscretion and then rely on that
indiscretion as grounds for discipline.” Sec’y obo Bernardyn v. Reading
Anthracite Co., 22 FMSHRC 298, 305-306 (Mar. 16, 2000). Whether an
employee’s behavior was excusable is a fact intensive inquiry that must look at
the particular facts and circumstances of the case. Id. at 306. Based on
the record in the instant case, it is not clear whether Harrison was indeed
provoked. The union was given the option to vote on the bonus plan, and
Harrison and a majority of members voted against the plan. Harrison testified
that when he found the bonus check, he felt that the company was ignoring the
union members’ safety concerns and unilaterally proceeding with an unauthorized
bonus plan. Tr. 28-29. It was only at that point that Harrison wrote “VOID VOID
KISS MY ASS BOB” on the check and returned it to the Respondent.  

Based on the evidence
in the record, I find non-frivolous Harrison’s claim that he engaged in
protected activity when he wrote “Void Void Kiss My Ass Bob” on the
bonus check and returned it as a protest against a program he believed would
serve as a safety hazard.

Nexus
between the protected activity and the alleged discrimination

Having concluded that Harrison engaged in protected
activities and suffered an adverse employment action, the examination now turns
to whether that activity has a connection, or nexus, to the subsequent adverse
action, namely the March 14, 2015 termination.
The Commission recognizes that direct proof of discriminatory intent is often
not available and that the nexus between protected activity and the alleged
discrimination must often be drawn by inference from circumstantial evidence
rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The
Commission has identified several circumstantial indicia of discriminatory
intent, including: (1) hostility or animus toward the protected activity; (2)
knowledge of the protected activity; (3) coincidence in time between the
protected activity and the adverse action; and (4) disparate treatment of the
complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC
at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 2510.

Knowledge of the protected activity

According to
the Commission, “the Secretary need not prove that the operator has knowledge
of the complainant’s activity in a temporary reinstatement proceeding, only
that there is a non-frivolous issue as to knowledge.” CAM Mining, LLC,
31 FMSHRC at 1090 citing Chicopee Coal Co., 21 FMSHRC at 719. In
fact, evidence is sufficient to support a finding of knowledge if an operator
erroneously suspects a miner made safety complaints, even if no complaint was
made. See Moses v. Whitley, 4 FMSHRC at 1478.

In the
instant matter there is sufficient evidence of knowledge of the various
protected activities to meet the evidentiary threshold. With regard to the
105(c) complaint filed in 2008, Pam Layton, the Human Resource representative,
filled out the grievance settlement that required the employer to remove the
slip from Harrison’s file. Tr. 45; GX-2. Layton continued to work in human
resources at the mine and had a role in Harrison’s ultimate termination. Tr. 45-46.
Layton’s participation in the 2008 complaint and ultimate settlement, combined
with her participation in the 2015 termination is sufficient to show that the
company had knowledge of Harrison’s 2008 complaint when he was terminated.

The company
similarly had knowledge of Harrison’s 2006 and 2009 participation in FMSHRC
proceedings on behalf of MSHA. In addition to the fact that the company would
have known about Harrison’s testimony when he testified, after Murray Energy
purchased the mine Bob Murray told the miners that he had reviewed past
violations and court proceedings, and knew who served as a witness. Tr. 22-23. This
statement by Murray is evidence that the Respondent had knowledge of Harrison’s
protected activity of participating in a FMSHRC hearing.

Lastly, the
Respondent had knowledge of Harrison’s protected activity of making safety
complaints concerning the bonus program implemented in February 2015. Harrison
engaged in various conversations with mine management over his safety concerns
about the program. Tr. 46-48. Based on Respondent’s cross-examination of
Harrison, it appeared that the Respondent was arguing that there was no way for
it to conclude from the words on the check that Harrison was making a safety
complaint. Tr. 67. However, based on the totality of the circumstances,
including previous conversations with mine management, it is clear that the
Secretary has met its burden in showing that Respondent should have known that
Harrison’s writing and returning the check was in reference to his safety
concerns.

Coincidence in time between the protected activity and the
adverse action

The
Commission has accepted substantial gaps between the last protected activity
and the adverse employment action. See e.g. CAM Mining, LLC, 31
FMSHRC at 1090 (three weeks) and Sec’y
of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan.
1999) (a 16-month gap existed between the miners’
contact with MSHA and the operator’s
failure to recall miners from a lay-off; however, only one month separated MSHA’s issuance of a penalty
resulting from the miners’
notification of a violation and that recall failure). The Commission has stated
“We ‘appl[y] no hard and fast criteria in determining coincidence in time
between protected activity and subsequent adverse action when assessing an
illegal motive. Surrounding factors and circumstances may influence the effect
to be given to such coincidence in time.’” All American Asphalt, 21
FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531
(Apr. 1991).

In the
instant matter, two of the protected activities—the 2008 discrimination
complaint and the 2006 and 2009 participation in FMSHRC proceedings—occurred
several years before Harrison’s termination. If these acts alone served as the
basis of Harrison’s instant discrimination complaint, then the Secretary would
have had a harder time showing that a coincidence in time existed.[11]
However, the third protected activity, which concerned Harrison’s complaints
about the bonus plan and which culminated in the return of his bonus check,
occurred less than five weeks from Harrison’s termination, with Harrison
returning the check on February 7 and being suspended with intent to discharge
on March 13. Tr. 23-24, 33-39. As a result, I find that the time span between
the protected activities and the adverse action is sufficient to establish a
nexus.

Hostility or animus towards the protected activity

The
Commission has held, “[h]ostility towards protected activity--sometimes
referred to as ‘animus'--is another circumstantial factor pointing to
discriminatory motivation. The more such animus is specifically directed
towards the alleged discriminatee's protected activity, the more probative
weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).

In the
instant case, there are a host of actions that could constitute animus towards
Harrison’s protected activities. First, Bob Murray’s speech to miners, where he
stated that he has reviewed past violations and litigation and knew who served
as witnesses and how much it cost the company represented animus towards
Harrison’s testifying on behalf of MSHA. Tr. 22-23.

Second,
the Respondent’s introduction at the arbitration hearing of the 2008 safety
slip as evidence of past impropriety also represented animus towards Harrison’s
2008 Section 105(c) discrimination complaint. Tr. 42. According to the terms of
the settlement between the company and Harrison, the company was required to
remove this slip from the Harrison’s file. Tr. 42; GX-2. The act of not removing
the slip, the ongoing act of retaining the slip, and the act of using the slip
at arbitration to show past misconduct, all represent animus toward Harrison’s
protected activity.

Third,
the response by John Larry and Wayne Conaway to Harrison’s safety concerns over
the bonus program, that he should “take the money and run,” showed that they
were not taking his safety concerns seriously. Tr. 46-48. Their glib response
represented hostility to Harrison’s protected activity of bringing a serious
safety concern to management attention.

Lastly,
the suspension with intent to discharge as a response to Harrison’s protected
activity of writing on the check and returning it, illustrated animus towards
the act. Though the Respondent appeared to offer shifting reasons for the
termination, suggesting at times that it was due to Harrison’s lying about the
check or his posting a photo of the check on Facebook, the returned check with
the markings was the only matter mentioned in meetings with mine management and
in the termination letter. Tr. 40-41; RX-3. Having found these repeated
instances of animus towards Harrison’s protected activities, I find sufficient
animus to meet the evidentiary bar at issue here.

Disparate Treatment

“Typical forms of disparate
treatment are encountered where employees guilty of the same, or more serious,
offenses than the alleged discriminatee escape the disciplinary fate which
befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). The Commission has previously held
that evidence of disparate treatment
is not necessary to prove a prima facie claim of discrimination when the
other indicia of discriminatory intent are present. Id. at 2510-2513.

In the instant matter, the record
is sparse with regards to disparate treatment. There is some evidence that
another miner, Jesse Stolzenfels, wrote “Eat Shit, Bob” on his returned check
and was subsequently fired. Tr. 68-69, 104. However, there was no evidence
presented as to whether his use of profanity on the check and his termination
were connected.

In the Cooley case cited
above, as well as other Commission precedent regarding swearing, the Commission
laid out a several factor test to determine whether a terminated complainant
was disparately treated for using offensive language. This test looks at “whether
the operator had prior difficulties with the complainant's profanity, whether
the operator had a policy prohibiting swearing, and how the operator treated other
miners who had cursed.” Sec'y obo Bernardyn v. Reading Anthracite 23
FMSHRC 924, 929-30 (Sept. 2001) (citing Cooley v. Ottawa Silica, 6
FMSHRC at 521, and Hicks v. Cobra Mining, 13 FMSHRC 532-33.) As
discussed supra, there is little in the record about a company policy
regarding swearing, nothing about prior issues with Harrison swearing, and
little about how the operator treated other miners who used profanity. Without
this additional evidence, it is impossible to conclude that Harrison was or was
not disparately treated.

Conclusion

In concluding that Harrison’s complaint herein was not
frivolously brought, I find that there is reason to believe that Harrison
engaged in a variety of protected activity, including his 2008 discrimination
complaint, his 2006 and 2009 participation in FMSHRC proceedings, and his 2015
complaints about the bonus plan. I further conclude that the Secretary has met
its burden in showing that there was a nexus between Harrison’s protected
activities and his March 2015 termination.

ORDER

For
the reasons set forth above, it is ORDERED that Complainant Richard B.
Harrison be immediately reinstated by Respondent and/or its successors to his
former position, or the equivalent, at the same rate of pay, hours worked, and
with all other benefits he was receiving at the time of his discharge,
effective the date of this decision.

The
court retains jurisdiction over this temporary reinstatement proceeding. 29
C.F.R. § 2700.45(e)(4). The Secretary shall complete the investigation of the
underlying discrimination complaint as soon as possible. Immediately
upon completion of the investigation, the Secretary shall notify counsel for
Respondent and this court, in writing, whether a violation of Section 105(c) of
the Mine Act has occurred. Id.

/s/
Janet G. Harner

Janet
G. Harner

Administrative
Law Judge

Distribution (Via E-mail and First Class Mail):

Jordana L. Greenwald, Esq., Office of the Solicitor, U. S.
Department of Labor, The Curtis Center, Suite 630 East, 170 South Independence
Mall West, Philadelphia, PA 19106-3306

greenwald,[email protected]

Philip K. Kontul, Esq., & Michael D. Glass, Esq., Ogletree,
Deakins, Smoak, Nash & Stewart, P.C. One PPG Place, Suite 100, Pittsburgh,
PA 15222

[email protected]
& [email protected]

Joe Reynolds, International Field Representative, UMWA
District 31, 310 Gaston Avenue, Fairmont, WV 26554

[email protected]

Richard B. Harrison, #4 Care Street, Worthington, WV 26591

[1]
Respondent may be in the process of changing its name to “Murray American
Energy Inc.” and/or “Marion County Coal Co.” and changing the name of the mine
to “Marion Mine.”

[2]
Under Commission Rule 45, a Temporary Reinstatement hearing must be held within
10 calendar days of an operator’s request. 29 C.F.R. §2700.45(c).

[3] “Substantial evidence” means “such
relevant evidence as a reliable mind might accept as adequate to support [the
judge’s] conclusion.” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

[4]
Hereinafter, the transcript of the proceeding shall be referred to as “Tr.” The
Secretary’s exhibits shall be referred to as “GX” followed by the number. The
Respondent’s exhibits shall be referred to as “RX” followed by the number.

[5]
As Respondent did not call any witnesses, the only testimonial evidence
presented at hearing was that of the discriminatee.

[6]
This is apparently what the Respondent currently calls the Loveridge #22 Mine.

[7] According to Respondent’s counsel, dozens of other
miners returned their bonus checks. Tr. 68, 72.

[8] There was some inconsistency regarding the dates of
the March meetings. The first meeting took place on a date between March 6-8.
Tr. 33-34, 73-75. The next meeting took place on either March 12 or 13. Tr.
35-36, 73-75.

[9] According to the contract, a terminated employee
has the right to a meeting within 24 hours of a termination. This meeting is
referred to as the “24-48 hour meeting.” Tr. 37.

[10]
See eg, Sec’y obo Bernardyn v. Reading Anthracite Co., 22 FMSHRC 298
(Mar. 16, 2000).

[11]
This is not to say that a six or seven year span from the protected activity to
the adverse employment action is per se too long. The Secretary would
simply have to make a strong showing that a strong nexus existed using the
other factors in the Commission’s test.