Secretary of Labor obo Kevin R. Shaffer v. The Marion County Coal Company

Plain-English summary

Kevin Shaffer complained about transmission, lighting, air-conditioning, and radio problems with haulage trucks at Marion County's underground coal mine. Management addressed the equipment issues but discharged Shaffer after concluding that he threatened to fight his foreman during a later argument about driving without headlights. Judge Jacqueline R. Bulluck found that the safety complaints were protected and that their timing initially supported an inference of discrimination. She nevertheless credited the threat evidence, found no management animus toward the complaints and no similarly situated employee who received better treatment, and concluded that Marion County discharged Shaffer for legitimate conduct reasons. The discrimination complaint was dismissed and the temporary reinstatement order was dissolved.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed, and temporary reinstatement ended.
• Key point: Close timing supported an initial retaliation inference, but credited evidence of a workplace threat and the absence of safety-related animus defeated the claim.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

November 6, 2019

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA), on behalf of KEVIN R. SHAFFER,

Complainant

v.

THE
MARION COUNTY COAL COMPANY,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. WEVA 2018-423-D

MSHA
Case No. MORG-CD-2018-01

Mine:
Marion County Mine

Mine
I.D. 46-01433

DECISION AND
ORDER

Appearances:               Jennifer
Bluer, Esq., U.S. Department of Labor, Philadelphia, Pennsylvania for Complainant

Jennifer
Betts, Esq., & Corey Ridenour, Esq., Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Pittsburgh, Pennsylvania for Respondent

Before:                        Judge
Bulluck

This
case is before me upon a Discrimination Complaint brought by the Secretary of
Labor (“Secretary”) on behalf of Kevin Shaffer (“Shaffer”) against the Marion
County Coal Company (“Marion County”) pursuant to section 105(c) of the Federal
Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(c). The Secretary alleges
that Marion County unlawfully discharged Shaffer on or about October 23, 2017
after Shaffer engaged in protected activity under the Act. Marion County denies
that it discriminated against Shaffer, and contends that he was discharged for
threatening his supervisor.

Shaffer
filed a 105(c)(2) complaint with MSHA on November 1, 2017. MSHA Special
Investigator Clarence W. Moore conducted an investigation, and determined that
there was “reasonable cause to believe” that Marion County unlawfully discharged
Shaffer in violation of section 105(c). On December 4, 2017, the Secretary
filed an Application for Temporary Reinstatement of behalf of Shaffer (WEVA 2018-117-D)
alleging that Shaffer was terminated because he had made safety complaints to
management about mobile equipment that he had been operating, and requested
alternative work due to its unsafe condition. Marion County elected to waive
its right to a hearing, and briefs were filed on January 9, 2018. The Secretary’s
Application was granted on January 16, 2018, temporarily reinstating Shaffer to
duty, effective December 31, 2017. Secretary of Labor on behalf of Shaffer
v. Marion Cty. Coal Co. , 40 FMSHRC 238 (Jan. 2018) (ALJ). Marion
County appealed the Order Granting Temporary Reinstatement on
January 22, 2018, and on February 8, 2018, the Commission affirmed
the Order. Sec’y of Labor on behalf of Shaffer v. Marion Cty. Coal Co. ,
40 FMSHRC 39 (Feb. 2018).

The
Secretary filed a Complaint of Discrimination on behalf of Shaffer on
April 20, 2018. A hearing was held in Morgantown, West Virginia, and
the parties filed Post-hearing Briefs. For the reasons set forth below, I
conclude that the Secretary has established a prima facie case of
discrimination, that Marion County has successfully rebutted the Secretary’s prima
facie case and that, ultimately, the Secretary has failed to prove that Shaffer
was terminated, in any part, because of his protected activity.

I. Stipulations

1. The Federal Mine Safety and Health Review Commission has jurisdiction
   over this case under section 105(c) of the Mine Act.

2. For the purposes of this case, Marion County is an operator as defined
   in the Federal Mine Safety and Health Act, 30 U.S.C. § 802(d).

3. For the purposes of this case, Marion County Mine is a coal or other
   mine as defined by the Federal Mine Safety and Health Act, 30 U.S.C. § 802(h).

4. Marion County is a Delaware corporation with a principal place of
   business located in St. Clairsville, Ohio.

5. Marion County operates the Marion County Mine, an underground coal mine
   located in Marion County, West Virginia, and Monongalia County, West Virginia.

6. Marion County has products that enter commerce and its operations affect
   commerce.

7. Non-supervisory employees at Marion County Mine are represented by the
   United Mine Workers of America.

8. For the purposes of this case, Complainant, Kevin Shaffer, is a miner as
   defined by the Federal Mine Safety and Health Act, 30 U.S.C. § 802(g).

9. Complainant was employed from June 2010 to December 2013, at what is now
   known as Marion County Mine by CONSOL Energy, Inc., at what was then known as
   the Loveridge Mine.

10. Complainant
    Kevin Shaffer began working at what is known now as the Marion County Mine as a
    mobile equipment operator on June 21, 2010.

11. Marion
    County employs Complainant as a mobile equipment operator, and did so at all
    times relevant to the Complaint at issue in this matter.

12. On October
    18, 2017, Foreman Bond and Complainant had a conversation about whether
    Complainant had driven his truck downhill without his headlights on.

13. On October
    19, 2017, Foreman Bond emailed Marion County’s human resources department
    concerning Complainant’s conduct on October 18, 2017.

14. On October
    23, 2017, Marion County suspended Complainant with intent to discharge him.

15. Complainant
    filed a Discrimination Complaint with the Mine Safety and Health Administration
    on November 1, 2017.

16. Complainant
    filed an Application for Temporary Reinstatement on December 4, 2017.

17. On January
    16, 2018, Complainant’s Application for Temporary Reinstatement was granted,
    effective December 31, 2017, and Complainant returned to work pending final
    adjudication of his Complaint.

18. Respondent
    produced 46,004,683 tons of coal in 2016, including 4,341,072 tons at the
    Marion County Mine.

19. During
    litigation regarding the merits of Kevin Shaffer’s 105(c) Complaint, the
    parties have filed some pleadings and exchanged some written discovery using
    the docket number from the Temporary Reinstatement proceeding, WEVA 2018-117-D.
    The parties stipulate that all pleadings filed and documents exchanged by the
    parties during the litigation of the Shaffer 105(c) merits case are part of
    Docket No. WEVA 2018-423-D.

20. Neither
    Kevin Shaffer nor the UMWA received [documentation of] a verbal warning
    regarding the August 14, 2017 incident.

21. If
    called, C.W. Moore, MSHA special investigator, would testify that the data
    listed on the Exhibit B to the Amended Complaint, regarding Respondent’s
    history of violations and history of 105(c) violations, is an accurate
    reflection of the information stored in the mine data retrieval system and MSHA’s
    records.

Ex.
J–1; see also Tr. 345-46.

II. Factual
Background

The Marion County Coal Company operates
the Marion County Mine (“mine”), an underground bituminous coal mine in Marion
and Monongalia Counties, West Virginia. [1]
The mine runs three shifts, six days a week: a day shift from 8:00 a.m. to 4:00
p.m.; an afternoon shift from 4:00 p.m. to 12:00 a.m.; and a night shift from
12:00 a.m. to 8:00 a.m. Tr. 37-38. Marion County has four haulage trucks in its
fleet, each with an approximate 40-ton capacity, and one 30-ton capacity rented
from Forquer for additional support. Tr. 34, 46, 92, 502, 514; Ex. C–9 at 5. Maintenance
of the haulage trucks is contracted out to Wheeling Diesel and, given the
constant wear and tear on the equipment, mechanics are regularly on-site making
repairs. Tr. 38-42, 222, 298, 502, 515. During each shift, the mine generally
operates two trucks, hauling refuse slate from the processing plant up a
quarter-mile road to the Harvey Run Impoundment (“impoundment”). Tr. 34, 512. Because
the road is too narrow and steep for haulage trucks to easily pass each other,
after mobile equipment operators (“MEO”) dump refuse at the impoundment, they
wait at the top of the hill to exchange places, and it is customary for waiting
MEOs to turn off their headlights so as not to blind their partners. Tr. 35-37,
60-63, 267.

Kevin Shaffer, also known at the mine as
“Cowboy,” began employment as an MEO at the mine in June 2010, and has held
that position at all times relevant to this proceeding. Stips. 10, 11; Tr. 141.
On October 18, 2017, Shaffer was assigned to haul refuse slate during the
afternoon shift. Tr. 38-40. Shaffer operated the No. 4 truck and Geoff
Phillips, his partner during that shift, operated the No. 1 truck. Tr. 513.

During Shaffer’s pre-operation examination
of the No. 4 truck, he noted several issues, including non-functional interior
lights and oil leaks. Ex. C–4. While operating the truck, when Shaffer set the parking
brake, the transmission would intermittently jump out of neutral into reverse. Ex.
C–4; Tr. 49. Shaffer reported the transmission problem to plant foreman Adam
Bond over the plant-wide CB radio system. Tr. 52, 365, 514; Ex. C–9 at 5. After
hearing Shaffer’s complaints, Bond went to the mine office and talked to plant maintenance
foreman Doug Sanders about the maintenance issues and availability of other
trucks. Tr. 365-73, 514-15. Sanders, who, among others, had heard Shaffer’s
complaints over the radio, called Wheeling Diesel mechanic Paul Dixon to come
to the mine that evening to service the No. 4 truck.     Tr. 298-300, 514-15,
520; Ex. C–9 at 5. While it is uncertain what exactly Shaffer and Bond said to
each other over the radio or how much was actually heard, it is undisputed that
during the next hour or so, Shaffer made numerous vulgarity-laced complaints
about his truck, as well as lack of air conditioning and a non-functioning
radio in Phillips’ truck. Tr. 52-53, 374, 514. Shortly thereafter, Bond
went up to the impoundment in his pick-up truck to deliver a replacement radio
to Phillips, and to talk to Shaffer about the maintenance issues with his truck.
Tr. 374-77.

An animated conversation ensued between
Bond and Shaffer in which Shaffer aggressively repeated his complaints
regarding the equipment and management’s failure to timely address safety
issues. Tr. 55-56, 384-88, 391. There is disagreement as to whether Bond had told
Shaffer to park the No. 4 truck and drive Forquer’s truck during the earlier
radio communications; Shaffer denies having heard this. Tr. 55-56, 171, 365-73.
In any case, the face-to-face exchange was emotionally charged, and involved
posturing and profanity. Tr. 178-80, 385-87, 391, 396-99. Bond repeatedly
directed Shaffer to park the No. 4 truck and, throughout the verbal confrontation,
Shaffer “invoked . . . [his] safety rights,” and threatened to call in the “Feds
. . . to shut every piece of equipment down on this job.” Tr. 180, 387-88, 390,

392. To defuse the situation, Bond suggested that he drive Shaffer down to the
     plant for his meal break and, en route, the two had routine conversation and an
     uneventful ride. Tr. 56, 183, 390, 396-99.

After his meal break, Shaffer switched
to Forquer’s truck, and returned to his hauling duties. Tr. 59-60. Between 8:00
and 8:30 p.m., mechanic Paul Dixon arrived at the mine to repair the No. 4
truck. Tr. 302-03. Shortly before 9:45 p.m., Bond made a second trip up to the
impoundment to check on Dixon’s progress with the repairs. Tr. 403-04. Upon
Bond’s arrival, Dixon reported to him that Shaffer had been driving down from
the impoundment without his headlights on and had almost run the mechanics’
truck off the road, and asked Bond to “make sure [that Shaffer] has his lights
on.” Tr. 303, 406.

Bond tried to contact Shaffer twice on
the CB radio to ask him to turn on his lights, but received no response. Tr.
409-11. Bond then observed Shaffer, driving Forquer’s truck, pull off to the
side of the road at the top of the hill to wait for Phillips’ truck to pass;
Bond claims that Shaffer did not have his headlights on as he was pulling off-road.
Tr. 185, 410-11, 414-15. Bond hollered up to Shaffer in his truck about driving
without his headlights and Dixon’s allegation. Tr. 60-63. Shaffer stepped
down from the cab, fervently denying driving without his headlights, and
advanced toward Bond at ground level. Tr. 64-66, 189-90, 191-95, 419-23; Ex. C–9
at 8. By both accounts, the ensuing conversation was extremely volatile. Tr.
191-95, 420-24. Throughout the exchange, Bond repeatedly instructed Shaffer to
turn on his headlights and resume work. Tr. 420, 422, 423. Shaffer continued
aggressive denial of driving without his headlights, and made multiple threats
to report Bond to human resources and call in the “Feds.” Tr. 64-66, 422-23. Shaffer
alleges that Bond became angry and put his finger in Shaffer’s face, shouting,
“I’m tired of this fucking shit on this fucking equipment.” Tr. 64-65. Bond
denies making that statement, and contends that Shaffer got in his face and
threatened to “take [him] to the gate and whip [his] ass.” Tr. 422-23, 426-28;
Ex. C–9 at 8.

Around 11:30 or 11:45 p.m., Dixon radioed
Shaffer to test drive the No. 4 truck. Tr. 67, 313. As he was getting into the cab,
Shaffer asked Dixon why he had reported him to Bond for driving without his
headlights, and Dixon replied that Shaffer had almost run his truck off the
road when he was driving up the hill. Tr. 67, 313-14; C-9 at 6. The exchange
grew heated, and Dixon told Shaffer that if he came closer, he would “bust
[Shaffer] in [his] fucking mouth.”   Tr. 67-69, 199-200, 313-15; Ex. C–9 at 6. At
this point, the hostility deescalated, and they proceeded to discuss the
repairs on the No. 4 truck, after which Shaffer test drove the truck and found
it to be operating properly. Tr. 67-69, 199-200, 314-15. Thereafter, Shaffer
finished his shift running the No. 4 truck. Tr. 68-69.

On October 19, Bond sent an email to
human resources manager Pam Layton and plant manager Rocky Cianfrocca
recounting the previous night’s events. Tr. 431; Ex. C–9 at 7. Thereafter, without
further explanation, Layton advised Shaffer not to report to work because
management was investigating an incident that had occurred on October 18. Tr. 71-72.
The next day, on October 20, general manager Scott Neitzelt held a meeting with
Cianfrocca, Layton, and human resources representative Dave Wilkinson to
discuss the incident and review Shaffer’s disciplinary record. Tr. 473-74, 488.
Neitzelt also launched an internal investigation, which included statements
from Doug Sanders, Paul Dixon and hourly employee Marty Miller. Tr. 475-76;
see generally Ex. C–9. In accordance with company policy, Shaffer was not interviewed.
Tr. 78-79, 286, 495-96, 556.

Shaffer was called in to the Mine on
October 23 for a meeting with Neitzelt, Layton, Wilkinson, and local union
president Jason Todd. Tr. 72. During the meeting, Shaffer was informed
that he was being suspended with intent to discharge because he had violated Marion
County’s employee conduct rules when he threatened Bond. Tr. 75-76. Todd
requested additional details about the investigation, which management declined,
and a grievance meeting (“24/48 meeting”) on Shaffer’s behalf. Tr. 262.

By agreement, Shaffer’s 24/48 meeting
took place on October 27, with Shaffer, Neitzelt, Layton, human resources
representatives Wilkinson and Tim Baum, Todd, and several other union
representatives. Tr. 80, 264, 270. Two prior incidents, in which Shaffer was
formally disciplined, were discussed. The first incident had occurred in 2011,
when Shaffer was suspended for six days for sleeping on the job. Tr. 282; Ex.
R–32. The other had occurred in 2014, when Shaffer was suspended-without-pay
and removed from the Mine Rescue Team for vandalizing a hotel room and verbally
assaulting the hotel manager with hostile language laced with racial slurs. Tr.
197, 282, 544; Ex. R–34. A third incident, occurring in August 2017, was also
discussed, where Shaffer threatened to lay down on the job in response to Bond
assigning him to work mandatory overtime, resulting in a verbal warning from
Bond, but no formal discipline. Tr. 268, 353-56; Ex. C–9 at 9-10; see Stip. 20.
The union argued that mitigating factors should be considered, including
Shaffer’s long-term employment with the company and his lack of issues with
foremen other than Bond. Tr. 283. At the conclusion of the meeting,
Neitzelt reiterated his decision to terminate Shaffer. Tr. 550. Consequently, the
union elected to take the matter to arbitration. Tr. 271.

The arbitration hearing was held on
November 17, 2017, and the Arbitration Report was issued on December 11, 2017,
finding that Marion County had just cause to terminate Shaffer because he had
threatened Bond. [2]
Marion County Coal Co. and UMWA, Dist. 31, Local Union 9909, Arb. No.
16–31–17–037, at 18-19 (2017) (Colflesh, Arb.). Thereafter, Shaffer filed his
Discrimination Complaint with MSHA.

III. 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
complainant must prove by a preponderance of the evidence “(1) that he engaged
in a protected activity, and (2) that the adverse action [complained of] was
motivated in any part by the protected activity.” [3]
Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC
2786, 2799-2800 (Oct. 1980),  rev’d on other grounds sub
nom. Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981).
The Commission has noted that “direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect.” Sec’y
of Labor on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov.
1981),  rev. on other grounds sub nom. Donovan v. Phelps Dodge
Corp. , 709 F.2d 86 (D.C. Cir. 1983). Circumstantial evidence may include:
1) coincidence in time between the protected activity and the adverse action;
2) knowledge of the protected activity; 3) hostility or animus toward the
protected activity; and 4) disparate treatment. The more that hostility or
animus is specifically directed toward the protected activity, the more
probative it is of discriminatory intent. Id.  at 2510.

Once the complainant has established
a  prima facie  case, “[t]he operator may attempt to rebut
[the]  prima facie  case by showing either that the complainant
did not engage in protected activity or that the adverse action was in no part
motivated by protected activity.” Sec’y of Labor on behalf of Robinette v.
United Castle Coal Co. , 3 FMSHRC 803, 818 n.20 (Apr. 1981). The operator
may also affirmatively defend its actions by proving, by a preponderance of the
evidence, that it was motivated by both the miner’s protected and unprotected
activities, and would have taken the adverse action for the unprotected
activity alone. Id. at 818. The Commission has explained that an
affirmative defense should not be “examined superficially or be approved
automatically once offered.” Haro v. Magma Copper Co. , 4 FMSHRC
1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine
whether they are credible and, if so, whether they would have motivated the
particular operator as claimed.” Bradley v. Belva Coal Co. , 4 FMSHRC
982, 993 (June 1982). Indicia of legitimate non-discriminatory reasons for an
employer’s adverse action include evidence of the miner’s unsatisfactory work
record, prior warnings to the miner, past discipline consistent with that meted
out to the complainant, and personnel rules or practices forbidding the conduct
in question. Id.

At this stage, the complainant has the
opportunity to demonstrate that the operator’s non-discriminatory reason for
its actions is a mere pretext for discrimination. Sec’y of Labor on behalf
of Price v. Jim Walter Res., Inc. , 12 FMSHRC 1521, 1534 (Aug. 1990). The
Commission has explained that “pretext may be found, for example, where the
asserted justification is weak, implausible, or out of line with the operator’s
normal business practices.” Id. However, the Commission has also stated
that “[its] judges should not substitute for the operator’s business judgement
[their] views on ‘good’ business practice.” Chacon , 3 FMSHRC at 2516. Finally,
the Commission has noted that the ultimate burden of proving discrimination
always remains with the complainant. Robinette , 3 FMSHRC at 818 n.20.

A.     Summary
of Testimony

1. Kevin
   Shaffer

Mobile equipment operator Shaffer
testified extensively about the sequence of events on October 18, 2017. He
believed that Bond had trouble hearing his safety complaints over the radio,
and he did not remember Bond telling him to drive Forquer’s truck, but thought
that Bond might have mentioned that he needed to check with Sanders about truck
availability. Tr. 51-52, 170-72. Shaffer stated that Sanders was the first
manager to respond to his safety complaints by broadcasting to the mine that
mechanics had been called in. Tr. 54-55. According to Shaffer, he continued
operating the No. 4 truck until Bond arrived at the impoundment and asked him
why he was still running it, where upon Shaffer “invoked . . . [his] safety
rights,” and detailed his concerns about the condition of the equipment and
management’s failure to timely address safety issues. Tr. 55-58, 136. Shaffer
stated that Bond did not respond to his complaints, but offered to drive him
“off the hill” for his lunch. Tr. 56. He also stated that in the past
management had gotten upset with him for downing a vehicle without approval,
but that he had not been formally disciplined for doing so, and he noted that
management would often respond to complaints with, “Walmart is hiring.” Tr. 55,
106, 137-38, 160-61.

By Shaffer’s account, he drove Forquer’s
truck after his lunch break, and Phillips went back to driving the No. 1 Truck,
which had cooled off sufficiently. Tr. 59-60. While he was waiting at the top
of the impoundment for Phillips to pass, without his lights, Bond approached by
foot, and accused him of nearly hitting Dixon while he was driving without
his lights. Tr. 60, 63-64. Shaffer alleged that Bond became angry, put his
finger in Shaffer’s face, and told him, “I’m tired of this fucking shit on this
fucking equipment.” Tr. 64-66. Shaffer stated that he told Bond that he could
not talk to him in that manner on mine property and that he could report it to
management or human resources, and that Bond walked away without responding. Tr.
65-66. Shaffer contended that both were upset during this exchange, and he
admitted that he was “talking heatedly,” but denied losing his temper. Tr. 103,

195. He also denied pointing at the gate or threatening to fight Bond, and
     stated that he has never threatened Bond or anyone else while at work. Tr. 70,
     196-98. Shaffer also testified that later, Dixon radioed him to test
     drive the No. 4 truck and, as he was climbing into the truck, he and Dixon
     discussed Shaffer’s headlights, things became heated, and Dixon threatened to
     “fucking bust [Shaffer].” Tr. 67-69. According to Shaffer, he perceived this
     comment as a threat, and he thought that he could defuse the tension by
     laughing at Dixon; ultimately, he did not report the incident. Tr. 68, 200-01.

196. Adam
     Bond

While the finer details vary
substantially, plant foreman Bond’s testimony largely confirms Shaffer’s
account of events. After hearing Shaffer’s complaints over the radio, Bond
contended, he went to the mine office immediately and discussed maintenance
issues and availability of trucks with Sanders, then radioed Shaffer to park
the No. 4 truck and drive Forquer’s truck, explaining to him that the brakes
were working on Forquer’s truck. Tr. 365-73. Bond stated that later in the
shift, he drove up to the impoundment and spoke to Shaffer about his truck. Tr. 374-75.
According to Bond, he told Shaffer to park the No. 4 truck again, and Shaffer
became angry, “invok[ing] his safety rights,” and threatening to call the
“Feds.” Tr. 385-88, 390, 392. Bond testified that he believed that the
situation was getting out of control and, in an effort to cool it down, suggested
that he drive Shaffer down to the plant for his meal break, during which time
Shaffer calmed down. Tr. 390, 396-99.

By Bond’s account, shortly after hearing
from Dixon about Shaffer driving without his headlights, he observed Shaffer,
in Forquer’s truck, pull off to the side of the road at the top of the hill
with his headlights off. Tr. 410-11, 414-15. Bond testified that when he
approached the truck and asked Shaffer about his headlights, Shaffer stepped
down from the cab and denied the allegation, before advancing toward him. Tr.
417-19. Bond contended that he instructed Shaffer to turn on his headlights and
resume work, and that Shaffer continued to deny driving without his headlights
and threatened to report Bond to human resources and the “Feds.” Tr. 420,
422-23. As
the exchange escalated, Shaffer
became hostile and approached
within a foot of Bond shouting, “Fuck this shit. I put up with this shit every
fucking day.” Tr. 420 -23.
Bond testified that at this point, he thought that Shaffer was going to strike
him, so he put his finger in Shaffer’s face to create some space between them. Tr.
421, 425-26. According to Bond, Shaffer then got in his face and threatened to
“take [him] to the gate and whip [his] ass,” all the while pointing toward the mine
gate. Tr. 422-23, 426.

Bond also testified about an incident with
Shaffer in August 2017. Tr. 353-56. According to Bond, after he had assigned
mandatory overtime work to Shaffer and Moran, Shaffer began shouting “fuck you,”
and stated that he would “fuck [Bond’s] eyeballs out.”    Tr. 353-56. Bond stated
that he understood Shaffer’s outburst to be a work refusal rather than a threat
of physical harm, and that he took Shaffer to Rocky Cianfrocca’s office in
order to issue a written warning. Tr. 356, 436. [4]
Bond recounted that upon reaching Cianfrocca’s office and finding him occupied,
he reconsidered his options and decided that he would only give Shaffer a
verbal warning. Tr. 355-56. He testified that Shaffer then asked, “[w]hy don’t
you just fire me,” to which Bond responded, “I don’t want to do that . . . I
want to start from square one.” Tr. 355-56.

3. Paul
   Dixon

Wheeling Diesel mechanic Dixon testified
that when Sanders called him about coming in to repair the No. 4 truck, between
6:30 and 7:00 p.m., he was in a hospital emergency room receiving medication
for an illness that he did not disclose. Tr. 301-03. He stated that on his way
up to the impoundment, Shaffer, coming down the road without his headlights on,
nearly ran the mechanic’s truck off the road, and that he asked Bond to “make
sure [Shaffer] has his lights on.” Tr. 303-04, 331-32. He testified that later
that evening, situated 20 to 30 feet from Shaffer and Bond, he heard Shaffer
shout repeatedly, “I had my fucking lights on,” and “no one puts a fucking
finger in my face;” he also heard Shaffer say the word “gate,” while pointing
in the direction of the mine gate. Tr. 305-7, 309, 312. Dixon noted that
Shaffer was louder than Bond throughout the confrontation. Tr. 307, 333. He also
testified that as Shaffer was climbing into the No. 4 truck, he paused, turned,
and said to him, “[Bond] said you said I didn’t have my lights on,” and that he
told Shaffer that he had made the statement. Tr. 314. Dixon contended that
Shaffer came closer to him and aggressively told him, “I had my fucking lights
on,” to which, in an effort to meet Shaffer at his level, Dixon responded,
“back off, or I’m gonna bust you in the mouth - - your fucking mouth.” Tr.
314-15. Dixon also testified that he had received a verbal warning, but was not
suspended, for threatening to hit Shaffer. Tr. 328-29.

4. Doug
   Sanders

Plant maintenance foreman Sanders
testified that employees are required to make pre-operation reports before
running any equipment, that items are prioritized for repair based on the
severity of issues identified, and that when issues are nonessential, equipment
may be kept in service until it can be addressed. Tr. 504-06. He testified that
mine management would never force an employee to continue operating unsafe
equipment because “no one [at the mine] would accept the liability,” and he
added that operating unsafe equipment is a violation of Marion County’s
employee conduct rules. Tr. 506. He stated that after he had heard Shaffer’s
complaints about the No. 4 truck over the radio, he immediately called Dixon to
come in, then broadcast over the radio that mechanics were coming in to work on
the trucks, and spoke to Bond about the brakes and availability of Forquer’s
truck. Tr. 514-17. In Sanders’ opinion, Shaffer had “lost his temper” and was
“worked up;” he was “screaming, [and] cussing” over the radio at Bond and any
other member of mine management who could hear him all evening, and he viewed
Shaffer’s behavior as upsetting and unprofessional. Tr. 522-25. Sanders
testified that he was impressed by Bond’s composure in dealing with Shaffer,
noting that he had never seen Bond swear at any employee. Tr. 521-22, 525.

5. Rocky
   Cianfrocca

Plant manager Cianfrocca testified that
he only became aware of Shaffer allegedly threatening Bond after he had
received an email from Bond about the previous night’s events. Tr. 471-72. Additionally,
he testified that when employees find maintenance issues during pre-operation
examinations, there is no discipline for reporting them and downing equipment.   
Tr. 459. He noted that there had been no complaints about Bond cursing at
employees, that employees liked working on Bond’s shift, and that Bond is
“pretty quiet,” easy to get along with, and well-liked. Tr. 493-94.

6. Jonathan
   Moran

Mobile equipment operator Moran testified
that he heard Shaffer’s initial safety complaints and Sanders’ response over
the radio, but that he did not hear Bond’s response to Shaffer. Tr. 229-31,

241. He also testified that vehicles are downed if issues are identified during
     pre-operation examinations, and that there is no discipline for reporting
     issues. Tr. 235, 240. Finally, Moran said that he had heard management comment
     that “Walmart is hiring” and, although he could not recall a specific instance
     when that had been said to him, he characterized the statement as a general
     response to complaints at the mine. Tr. 245  He also noted that he had a good
     relationship with Bond, and that Bond had never threatened him. Tr. 248.

242. Scott
     Neitzelt

General manager Neitzelt explained how
the mine’s disciplinary process works, and stated that while the mine usually
employs progressive discipline, severe conduct can result in immediate
termination. Tr. 537, 545-51, 561-63. He testified that his decision to
discharge Shaffer was based on the October threat and in no part Shaffer’s
safety complaints, and that he would have discharged any employee who had threatened
another employee, irrespective of whether the employees involved were hourly or
management. Tr. 552, 558.   He also testified that Shaffer’s prior disciplinary
infractions “showed somewhat of a pattern,” establishing Shaffer as “a
hothead,” and contributed to his decision to terminate Shaffer. Tr. 543-44,
552-54. Neitzelt explained that he elected to notify Dixon’s supervisor that he
had threatened Shaffer, rather than ban him from the mine, because Dixon worked
for a contractor. Tr. 540-41, 565. Finally, Neitzelt noted that Bond had told
him that since the incident, he has been afraid of Shaffer. Tr. 554.

8. Jason
   Todd

Todd, prep plant electrician and president
of the local UMWA chapter, accompanied Shaffer to the disciplinary proceedings
associated with Shaffer allegedly threatening Bond.   Tr. 256, 260. He
identified Adam Fry as Shaffer’s union representative at the 24/48 meeting. Tr.

263. Todd testified that Shaffer admitted to him that Bond had responded to his
     initial safety complaints by instructing him to drive a different truck. Tr. 290-91.
     In response to a question about whether Bond had ever been confrontational with
     him, he recounted an incident where he was speaking with union miners in the
     lunchroom and Bond approached him, commenting on Todd’s work schedule and union
     activities. According to Todd, both of them became angry, and there were a “few
     back and forth words” before Bond left the lunchroom. Tr. 274-77.

B.      Shaffer’s
Prima Facie Case

It is undisputed that Shaffer’s complaints
regarding the No. 4 and No. 1 trucks on October 18, 2017, constitute protected
activity under the Act, and it is clear that Shaffer’s termination is an adverse
action. Sec’y Br. at 17-19. As is often the case, the circumstantial evidence involved
in Shaffer’s discharge must be examined in order to determine whether Marion
County was motivated, in any part, by Shaffer’s protected activity.

The Commission has found that a
discharge occurring approximately two weeks after protected activity is
sufficiently coincidental in time to support a finding of discriminatory
motive. Sec’y of Labor on behalf of Baier v. Durango Gravel , 21 FMSHRC
953, 959 (Sept. 1999). In this case, the temporal nexus is even stronger, since
Marion County initiated Shaffer’s discharge approximately five days after
Shaffer’s safety complaints.

Marion County management had knowledge
of Shaffer’s protected activity. Clearly, Bond and Sanders had heard the
complaints about the trucks over the plant-wide radio. Sec’y Br. at 19;
Tr. 173,
365-73, 514-17 .
Layton and Cianfrocca were made aware of Shaffer’s safety complaints the next
day by Bond’s email describing the prior evening’s kerfuffle and, if not
sooner, Neitzelt was put on notice of Shaffer’s safety complaints by the
information gleaned from the ensuing internal investigation. Accordingly, I
find that the Secretary has established a prima facie case of
discrimination based on the temporal nexus between Shaffer’s safety complaints
and termination, in conjunction with management’s knowledge of Shaffer’s
protected activity.

C.     Marion
County’s Rebuttal

Marion County contends that it
terminated Shaffer because he threatened his supervisor, Bond, in violation of its employee
conduct rules, and in no part because of his protected activity . Resp’t Br. at
17-24. In relevant part, Marion County’s employee conduct rules state as
follows:

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 .

Ex.
C–8 (emphasis added). Marion County alleges that Shaffer threatened to “take [Bond]
to the gate and whip [his] ass.” Resp’t Br. at 11 . Marion County asserts
that it does not tolerate threats, and that Shaffer’s unprotected conduct was its
sole motivation for his termination. Resp’t Br. at 17, 24; Tr. 552-53.

The alleged threat occurred during Bond’s
second trip up to the impoundment. It is clear from the record that Shaffer’s
agitation had escalated as the shift progressed, and Dixon’s accusation about
his headlights took Shaffer’s disgruntlement up a notch when Bond approached
him about the matter. By both accounts, their exchange quickly became
confrontational. Shaffer got in Bond’s personal space, Bond pointed his finger
at Shaffer, and it is at this point that Bond alleges that Shaffer threatened to
fight him at the gate. Bond’s rendition is largely corroborated by Dixon, who,
standing 30 feet away at most, observed Shaffer pointing in the direction of
the gate as he was referencing it verbally.

The next day, based on Bond’s email to Layton
and Cianfrocca, management began an internal investigation, and Shaffer was
advised not to report to work. As a part of the investigation, Neitzelt reviewed
employee statements and Shaffer’s personnel file, and found Shaffer’s behavior toward
Bond in August 2017 and the incident at the hotel in 2014 particularly troubling.
Shaffer was called to the mine on October 23 for a meeting, and was informed
that he was being suspended with intent to discharge because of threatening
Bond.

Shaffer’s 24/48 meeting was held on
October 27, and the union’s arguments, that Shaffer was a long-term employee of
the company and had no issues with foremen other than Bond, did not persuade Neitzelt
to reverse his decision to terminate Shaffer. Tr. 549-52. In fact, Neitzelt testified
credibly that even with a clean disciplinary record, he would have
discharged any employee, hourly or management, for threatening another employee.
Tr. 558, 563. I find that Neitzelt offered credible testimony, that his account
of his motives was supported by the record and, therefore, that Marion County
has established that Shaffer was discharged for legitimate, non-discriminatory
reasons, entirely unrelated to his safety complaints.

D.     Pretext

The Secretary
argues that Marion County’s articulated justification for terminating Shaffer
is merely a pretext for unlawful discrimination. In support of this argument,
the Secretary maintains that Shaffer never threatened Bond, that management
displayed animus toward Shaffer’s protected activity, and that Shaffer was
disparately treated with respect to discipline. Sec’y Br. at 10-11, 20-25. For
the following reasons, I conclude that the Secretary’s arguments are not
supported by the record.

1. The
   Threat

The Secretary contends that it was Bond
who became agitated that evening, that he put his finger in Shaffer’s face and
said that he was tired of this “fucking shit” on the “fucking equipment,” and that
Bond fabricated the threat by Shaffer in order to insulate himself from being
held accountable for his hostility toward Shaffer. Sec’y Br. at 10-11, 21. Additionally,
the Secretary maintains that Dixon’s testimony lacks credibility. Sec’y Br. at
10-11, 28 n.9.

According to the Secretary, Bond’s
failures to call the police, report the incident to human resources
immediately, and send Shaffer home lend credence to his contention that Bond
fabricated the threat. Sec’y Br. at 11, 21. I find this reasoning unpersuasive.
Primarily, the record establishes Bond as someone who believes that actions
have consequences, and gives careful consideration to exercises of his supervisory
authority. See e.g., Tr. 355-56, 365, 430-33, 453-54. [5]
Additionally, Bond is well-liked by the employees under his supervision, including
Shaffer. [6]
See, e.g., Tr. 248, 493-94, 525. Consequently, I find the Secretary’s claim to
be inconsistent with Bond’s character and reputation, as borne out by the
record.

The Secretary’s assertion that Dixon was
an unreliable witness, insofar as his testimony corroborates Bond’s account of events,
is based on his contention that Dixon had reason to be “annoyed” with Shaffer due
to the inconvenience of being called in from the emergency room, and possibly because
Dixon took the complaints about the equipment personally. Sec’y Br. at 28 n.9. The
Secretary presented no evidence to support this contention. Furthermore, Dixon’s
assertion that he was working within earshot of Bond’s and Shaffer’s
confrontation was not refuted. According to Dixon, he could not hear Bond well during
the conversation, but he could hear Shaffer yelling at Bond. Dixon recounted
Shaffer repeatedly shouting in Bond’s face that he had his “fucking lights on,”
and “fuck you,” and that he heard Shaffer tell Bond that nobody puts his “fucking
finger” in his face, and say “gate,” while pointing toward the mine gate.    Ex.
C–9 at 6; Tr. 305, 307-09, 312.

While it is uncontroverted that Dixon came
to the mine from the emergency room to service the No. 4 truck, there is no
evidence that this generated hostility on his part. In fact, Dixon and Shaffer
never had any issues before the incident in question, and Dixon specifically testified
that he was not bothered by having to go to the mine that evening. Tr. 301-02,
313, 320-21; Ex. C–9 at 2. Moreover, if Dixon had harbored any hostility toward
Shaffer, he most likely would have misrepresented what he had heard that
evening to construct a more damaging story. As it stands, one would have to
consider why he merely stated that he heard Shaffer say “gate,” when he could
have testified that he heard Shaffer make the entire alleged threat. Additionally,
Dixon provided balanced testimony that could be construed against Bond, i.e., Shaffer
telling Bond that nobody puts their “fucking finger” in his face, which does
not serve the retaliatory motive that the Secretary attempts to construct. Therefore,
based on the record, and after observing him testify, I find Dixon wholly
credible, and conclude that he harbored no animosity toward Shaffer.

Shaffer’s abusive and disrespectful conduct
toward Bond was wholly inappropriate, and Bond, although obviously frustrated,
was more patient with him than could reasonably be expected under the circumstances.
Moreover, I find that Shaffer’s overall testimony was extremely self-serving. While
he admitted that his conversations with Bond and Dixon were heated, he left out
negative information corroborated by multiple witnesses, he denied past inappropriate
behavior that had been observed by others, he could not recall many events that
were readily established by other witnesses, and his testimony was riddled with
inconsistencies. See, e.g., Tr. 90-91, 170-71, 194-97, 203, 290-91. Shaffer
painted himself as an easy-going, cooperative employee, but his demeanor was
unconvincing, and the record tells a much different story. In fact, the record is
replete with examples of Shaffer’s hostile and disruptive attitude. See, e.g.,
Tr. 282, 353-54, 461, 544; Ex. R–34; Ex. C–9 at 5-6, 10.

While I find that Bond also became
agitated during the verbal confrontations with Shaffer, given the
circumstances, I do not find Bond’s conduct antithetical to his reputation as a
fair, even-tempered supervisor. Indeed, patience is not without limits. Moreover,
I find that Bond’s frustration was reasonable, when viewed in reaction to
Shaffer’s aggressive display of anger. To characterize Bond as intimidating and
hostile, as the Secretary urges, ignores Bond’s need, as Shaffer’s supervisor,
to maintain control and respect. Therefore, based on my credibility
determinations and the evidence in its entirety, I find that Shaffer did, in
fact, threaten Bond.

2. Marion
   County’s Animus

The Secretary contends that both Bond
and Sanders displayed animus toward Shaffer’s protected activity, and that their
conduct was consistent with management’s pattern of hostility toward safety
complaints. Sec’y
Br. at 20-21 .

The Secretary argues that Bond displayed
hostility toward Shaffer’s protected activity when he confronted Shaffer about
his headlights. Sec’y Br. at 20. After making the accusation, Shaffer
alleges that Bond became angry, put his finger in his face, and told him that
he was sick of the “fucking shit” on the equipment. Shaffer interpreted this
comment to be in reference to the safety complaints about his truck that he had
made earlier that day. Tr. 101-102. While I have found that Shaffer’s testimony,
as a whole, casts a deep shadow upon his credibility, I find it plausible that
Bond said something of this nature to Shaffer during their argument. However,
as has been briefly touched upon earlier, it is critical to evaluate any such
statement in the context of the events that precipitated it. Bond’s alleged
comment was made in the midst of an animated exchange in which Bond was taking
Shaffer to task for engaging in extremely hazardous conduct. As a reminder, leading
up to this confrontation, Bond had actually observed Shaffer park the truck
without using headlights. Additionally, I note that this was the second
instance of Shaffer engaging in unsafe conduct that shift. On his first trip up
to the impoundment, Bond discovered that Shaffer had been driving the No. 4 truck
for over two hours, despite having been instructed by Bond to drive Forquer’s
truck instead. Given Bond’s legitimate concerns about Shaffer’s attitude and
conduct in the mine that evening, and putting Bond’s comment in the context of
the accusation that actually sparked the confrontation, I conclude that Bond’s alleged
comment would have been in reference to Shaffer’s repeated safety infraction, i.e.,
not using his headlights, rather than his safety complaints.

Moreover, the alleged comment must be
viewed in light of Bond’s reaction to Shaffer’s safety complaints throughout
the evening. By the time that the alleged statement was made by Bond, Shaffer’s
complaints were already being addressed. Shaffer was driving Forquer’s truck
and Dixon was repairing the No. 4 truck; Phillips had been given a replacement
radio and the No. 1 truck had cooled down sufficiently. It is clear that Bond
took immediate action to address the safety issues that Shaffer had brought to
his attention. Importantly, Bond did not raise any objections to Shaffer’s
safety complaints the first time they spoke, but instead questioned why Shaffer
was still driving the malfunctioning truck. This immediate response to
Shaffer’s safety complaints supports the conclusion that Bond’s statement was,
in fact, about the headlights issue. Therefore, I find that the record does not
support the Secretary’s claim that Bond displayed any animus toward Shaffer’s
protected activity.

The Secretary also identifies statements
made by Sanders during the internal investigation as evidence of Sanders’ animus
toward Shaffer’s protected activity. Sec’y Br. at 20; Ex. C–9 at 5. Sanders stated that
he was “afraid
[Shaffer] would have both trucks down by the end of the shift,” which “would
only leave [the mine] with a rented 30-ton truck to haul refuse.” Ex. C–9 at 5.
Sanders also testified that production would be affected if either of the
40-ton refuse trucks were not running. Tr. 530. The Secretary contends that
Sanders’ statements suggest that management was concerned about production at
the expense of safety. Sec’y Br. at 20.

To fully understand Sanders’ comments,
they must be viewed in light of Sanders’ response to Shaffer’s complaints about
the No. 4 truck. Sanders took immediate action once he was made aware of
Shaffer’s complaints: he spoke to Bond about the safety issues and availability
of trucks, called in the Wheeling Diesel mechanics, and contacted Forquer to
work out the issue with the parking brake on the rented truck. Although Sanders
stated that he was worried about Shaffer downing trucks, he also testified credibly
that mine management would never encourage an employee to continue operating an
unsafe piece of equipment. Tr. 506;    Ex. C–9 at 5 . While not
discounting that Sanders had a concern about production, the record does not show
that he prioritized it over safety. It does show him to be disdainful of Shaffer’s
hostility toward Bond throughout the evening. Sanders regarded Shaffer’s
language and behavior as highly objectionable and disrespectful, and he was
impressed that Bond was able to maintain his composure. I fully credit Sanders’
testimony about the evening, as consistent with Shaffer’s history of uncooperative
conduct throughout his tenure at Marion County. The record illuminates
Shaffer’s disruptive behavior, his negative attitude toward work, and his
refusal to follow instructions despite the latitude and assistance afforded him
by Bond and Sanders. See, e.g., Tr. 282, 353-54, 461, 544; Ex. R–32; Ex.
R–34; Ex. C–9 at 5, 6, 10. Consideration of Shaffer’s pattern of bad behavior
provides support for Sanders’ negative view of him, and any hostility on
Sanders’ part is reasonably attributable to Shaffer’s non-protected conduct. This
highlights an important distinction. While the Act protects miners who have
legitimately engaged in protected activity, that protection is not without
parameters. Therefore, I find that any animus expressed by Sanders was directed
toward Shaffer’s prolonged demonstration of hostility throughout the evening - -
behavior that is wholly unprotected.

Finally, the Secretary notes a few
instances in which management, including Bond, responded to safety complaints
by telling employees that “Walmart is hiring,” and asserts that this created a
general hostility toward protected activity at the mine. Sec’y
Br. at 20-21 .
This contention also lacks support in the record. Shaffer claimed that he was
told “Walmart is hiring” after he had made a safety complaint regarding parts
on a truck, and also during the August 2017 incident. Tr. 55, 106, 138. Jonathon
Moran characterized “Walmart is hiring” as a general response to complaints at
the mine. While I credit that this retort has been made by management and, specifically,
by Bond, it does not follow, without more, that the statement rises to the
level of animus. Shaffer’s allegation is self-serving and uncorroborated; the
other instances identified by the Secretary are not tied to any specific safety
complaints. I note that the Secretary has offered no evidence of management
forcing miners who have raised legitimate safety complaints to continue
operating unsafe equipment. See Tr. 235, 238-40, 396, 459, 506. Moreover, it is
important to consider that heavy mobile equipment is running 24 hours, six days
a week at this mine, and that equipment breaks down often and needs maintenance
regularly. Complaints and concerns about equipment are raised multiple times on
a daily basis, and the record is devoid of evidence that management does not
adequately address safety issues.

Therefore, the Secretary has failed to
establish any animus on the part of management toward the safety complaints Shaffer
made on October 18.

3. Disparate
   Treatment

Finally, the Secretary asserts that
Shaffer was subject to disparate treatment respecting his termination. Sec’y
Br. at 22-24. After threatening Bond, Shaffer was told not to report to work and
stay off mine property. Five days later, he was suspended with intent to
discharge. The Secretary points out that Dixon engaged in similar threatening
conduct during the same shift, but was neither banned from mine property nor
suspended from work. Sec’y Br. at 23.

Dixon readily admitted that he
threatened to punch Shaffer in the face. However, Dixon contended that, having
just observed Shaffer screaming in Bond’s face, his own conduct was in response
to Shaffer’s temper and aggressiveness, in an effort to back Shaffer down. While
Dixon’s statement could be viewed as defensive, Marion County viewed it as a
threat, and I find likewise. Dixon is not a valid comparison employee as the
Secretary asserts, however, because Dixon and Shaffer are not similarly
situated. Shaffer is an employee of Marion County, and Dixon works at the mine
as a contractor employed by Wheeling Diesel. As such, the conditions of Dixon’s
employment are not under the dominion of Marion County. Neitzelt did not take
any disciplinary action against Dixon, but reported his conduct to his supervisor
at Wheeling Diesel, which lends credence to Marion County’s stated
zero-tolerance policy regarding threats. Consequently, I find that the
Secretary has failed to establish that any similarly situated employee has been
treated more favorably than Shaffer, under similar circumstances.

Having reviewed the evidence in its
entirety, including the demeanor and credibility of the witnesses, the record
shows that Shaffer threatened Bond, that management displayed no animus toward
Shaffer’s protected activity, and that Shaffer was not subject to disparate
treatment. Therefore, I conclude that the Secretary has failed to show, by a
preponderance of the evidence, that Marion County’s stated justification for
Shaffer’s termination was a pretext for unlawful discrimination, or that Marion
County’s termination of Shaffer was, in any way, motivated by his protected
activity.

IV. ORDER

ACCORDINGLY ,
it is ORDERED that the Complaint of Discrimination filed by the
Secretary of Labor on behalf of Kevin Shaffer is, hereby, DISMISSED ; and
the Order Granting Temporary Reinstatement is, hereby, DISSOLVED ,
effective November 6, 2019.

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Jennifer
L. Bluer, Esq., Office of the Regional Solicitor, U.S. Department of Labor,

170
S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106-3306

Thomas
A. Smock, Esq., Jennifer Betts, Esq., Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.

One
PPG Place, Suite 1900, Pittsburgh, PA 15222

Laura
P. Karr, United Mine Workers of America, 18354 Quantico Gateway Drive, Suite
200

Triangle,
VA 22172

/adh

[1] Prior to
December 2013, Marion County Mine was known as Loveridge Mine, and was owned
and operated by CONSOL Energy, Incorporated. Stip. 9.

[2] Administrative
notice is taken of the Arbitration Transcript (“Arb. Tr.”), filed in support of
the Secretary’s Application for Temporary Reinstatement, in conjunction with
the hearing record, for the purpose of establishing facts and assessing witness
credibility.

[3] 30 U.S.C. §
815(c)(1) states, in relevant part:

No person shall discharge or in any
manner discriminate . . . against . . . any miner . . . because such miner . .
. has filed or made a complaint under or related to this chapter, including a
complaint notifying the operator or the operator’s agent . . . of an alleged
danger or safety or health violation in a coal or other mine . . . or because
such miner . . . has instituted or caused to be instituted any proceeding under
or related to this chapter . . . or because of the exercise by such miner . . .
on behalf of himself or others of any statutory right afforded by this chapter.

[4] See Ex. C-9 at
10 (Marty Miller’s account of the lunchroom incident, including hearing Shaffer
shouting “fuck you,” and “I’m going to fuck your eyeballs out” at Bond).

[5] While the
Secretary points to the lunchroom incident between Bond and Todd as evidence of
Bond’s antagonistic temperament, I do not find this argument availing for two
reasons. See Sec’y Br. at 21. First, Todd’s recounting of the incident
does not provide enough context to evaluate the reasonableness of Bond’s
alleged actions. Second, if I were to take Todd’s testimony at face value, I do
not believe that an isolated display of anger outweighs what the record clearly
establishes - - that Bond enjoys a good relationship with his subordinates, and
is respected as a manager.

[6] In the
arbitration hearing, Shaffer testified that he had never had a problem with
Bond, and went so far as to say, “I’ve had two good bosses in my life, and
[Bond’s] the second best and the first was my dad.” Arb. Tr. 262.