U.S. Steel Mining Co., Inc.

Plain-English summary

Roger Nelson raised safety concerns about ventilation tubing and rock dusting at U.S. Steel's Morton Mine. Judge Avram Weisberger found that a foreman intimidated Nelson by falsely accusing him of illegally taking a man trip and later required him to shovel coal after Nelson made protected safety complaints. The judge rejected other allegations, including that management's discussions about a transfer were motivated by Nelson's safety activity. U.S. Steel was ordered to post the decision for 60 days and pay a $400 civil penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: Two adverse actions were found to violate the Mine Act, other allegations were rejected, and a $400 penalty plus a 60-day posting was ordered.
• Key point: Timing, management statements, and disparate treatment supported findings that two actions were motivated by protected safety activity.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. U.S. STEEL
DDATE:
19870224
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 86-407-D
ON BEHALF OF
ROGER NELSON, HOPE CD 86-7
COMPLAINANT
v. Morton Mine

U.S. STEEL MINING CO., INC.,
RESPONDENT

                             DECISION

Appearances: Jonathan M. Kronheim, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for the
Complainant Billy M. Tennant, Esq., Pittsburgh,
Pennsylvania for the Respondent

Before: Judge Weisberger

                       Statement of the Case

 Complainant filed a complaint with the Commission under

Section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c) (the Act) alleging that on about January 21,
1986 he was illegally discriminated against when he was
intimidated as a result of making a safety complaint to his
foreman, and that on or about January 28, 1986 he was
discriminated against when he was required to perform additional
and strenuous duties as a result of filing a safety complaint
with MSHA and speaking with an MSHA inspector.

 Pursant to notice the case was heard in Huntington, West

Virginia on November 12, 1986. Roger Nelson, Charles Pauley,
Danny Meadows, Bernie May, and Samuel Smith testified for
Complainant. John Cummings, Bill Wright, Ron Winfrey and David
Kirk testified for Respondent. Both Parties filed Post Hearing
Briefs and Proposed Findings of Fact. In addition, Parties were
granted the right to file Reply Briefs, but none were filed.

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Findings of Fact

 The Complainant, Roger Nelson, has been employed as a miner

by the Respondent, U.S. Steel Corporation, since 1981. On
September 9, 1985 Nelson begin working as a shuttle car operator
under Foreman David Kirk.

 During a daily safety meeting on January 21, 1986 Nelson

asked Kirk how far ventilation tubing could be legally kept from
the mining face. Kirk told Nelson that the law required
ventilation tubing to be kept within 10 feet of the face. At the
time the tubing was being kept more than 10 feet from the face.
Nelson give his opinon to Kirk that the Respondent was violating
the law in its placement of the ventilation tubes. Merle Johnson,
a miner operator who was present, stated that keeping the tubing
10 feet from the face was dangerous to the miner operator and the
miner helper. Johnson and Nelson argued but there was no physical
contact.

 After this incident, Nelson said that Kirk ordered him to

take the man trip and get some additional ventilation tubing
(although Charles Pauley testified that Kirk told him that he did
not order Nelson to take the man trip, I have adopted Nelson's
version as Kirk did not contradict it in his testimony). As
Nelson was leaving the man trip Kirk approached the electrician,
Charles Pauley. Pauley testified that Kirk asked who was in the
man trip. When Pauley replied that it was Nelson, Kirk stated to
Pauley that he did not tell Nelson to take the man trip and that
it was against the law for Nelson to take the man trip from the
section. When Nelson returned to the section, Kirk informed him
that it was illegal to take the man trip off the section and
denied that he had told Nelson to take the man trip.

 After the argument between Nelson and Johnson, Kirk called

Ron Winfrey, the General Mine Foreman, and asked that he come to
the section as he (Kirk) had a problem. However, Kirk did not
explain to Winfrey the nature of the problem. Winfrey did not
have any tranportation available but advised Kirk that he told
Bill Wright, Shift Foreman, and John Cummings, Assistant to the
Mine Foreman, to come to the section. Cummings and Wright asked
Kirk what the problem was and they testified that they were told
by Kirk that Nelson was the problem. I note that Kirk denied that
he told Wright and Cummings that Nelson was the problem. I adoped
the verison testified to by Wright and Cummings based upon
observations of their demeanor and also considering the fact that
their testimony corroborates each other.

 According to Cummings, Kirk told them that Nelson and

Johnson "just about got into a fight" over placement of the
tubing (Tr. 177). According to Wright, Kirk told him that Nelson
and Johnson had a fist fight. Kirk did not ask Cumming or Wright

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to talk to Nelson. On his own initiative Wright told Kirk to have
Nelson to come to the dinner hall to talk to him and Cummings.
Wright explained he wanted to talk to Nelson in order to "try to
solve the problem before it got out of hand" (Tr. 197).

 At the dinner hall Nelson admitted to Wright and Cummings

that there had been an argument about placement of the
ventilation tube. Wright and Cummings explained to Nelson the
hazards involved in maintaining the ventilation tube within 10
feet of the face. Wright and Cummings asked Nelson if he would
like to be transferred from the section to another job elsewhere
in the mine running a supply motor. Cummings stated that there is
a difference in pay between a suttle car operator, (Nelson's job
on January 21) and that of a supply motor operator. He said that
he was not sure what the difference was but that he "would
imagine" that the suttle car operator job pays more (Tr. 183).
There is no other evidence in the record regarding the pay of
these two jobs. Accordingly, I conclude that Cummings' testimony
is insufficient to establish positively that the job that Wright
and Cummings asked Nelson if he wanted to transfer to, would have
involved a cut in pay.

 Nelson testified that Cummings said that if he stayed on the

section he "would end up with the short end of the stick." (Tr.
24). Nelson told Wright and Cummings that he would like another
job, but that he did not want people to think that Kirk had run
him off the section.

 Wright and Cummings did not threaten Nelson nor did they

take any disciplinary action against him or remove him from the
section.

 Wright testified that he had decided to speak to Nelson and

not Johnson because he felt that the latter was the problem as
Kirk had so indicated. Also he said that he could speak to
Johnson any time as he operated a miner, whereas Nelson operated
a suttle car and thus did not stay in one place.

 At about 11:00 a.m. Winfrey arrived at the section. He

testified that Kirk had said that there was almost a fight
between Johnson and Nelson concerning the distance ventilation
tubing is to be kept from the face. Kirk did not ask Winfrey to
speak to anyone. Winfrey then went to talk to Johnson who said
that he and Nelson "about came to blows" in the dinner hall that
morning arguing placement of the ventilation tube (Tr. 220).
Johnson asked Winfrey to be transferred from the section. Winfrey
did not grant this request. After Winfrey talked to Johnson,
Winfrey asked Nelson to leave his suttle car and talk to him.
According to Winfrey, he asked Nelson, just as he had asked
Johnson, to tell

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him what happen earlier in the day. Winfrey and Nelson had a
discussion with regard to placement of the ventilation tube, and
Winfrey explained why they were placed beyond 10 feet from the
face. According to Nelson, Winfrey told him that he thought he
(Nelson) had an attitude problem. Winfrey said there seem to be
"turmoil" between Nelson and Kirk and he asked Nelson if he
wanted to transfer to another section. Winfrey said that Kirk had
not asked him to transfer Nelson, and that he was unaware that
earlier in the day Wright and Cummings had offered Nelson work in
another section. Winfrey said that he asked Nelson if he wanted a
transfer but turned down Johnson's request for transfer, as
Nelson was calm and Johnson was "belligerent." Winfrey did not
take any action to have Nelson transferred.

 The following day Danny Meadows, the scoop operator,

inspected the face area and noted that it was not rock dusted
within 40 feet of the face. He testified that there was no rock
dust available to correct the problem. Meadows brought the
problem to Kirk's attention and Kirk told Meadows that he would
order some rock dust. Nelson asked Kirk if he was going to get
some rock dust. Meadows testified that Kirk told that him
"(Nelson) was crying about the place not being rock dust(ed)."
(Tr. 114). Nelson reported the violation to the Safety Committee
and another Section 103(g) complaint was filed.

 On January 28, 1986 MSHA Mine Safety and Health Inspectors

Martin Copley and Karl Jenkins came to the mine to investigate
the Section 103(g) complaints filed by the Union at Nelson's
request. Nelson and Danny Meadows told the Inspectors in the
presence of Kirk about the failure to properly rock dust the face
area. Meadows also told Inspector Jenkins that it had taken 16
bags of rock dust to dust the area that had been in violation.
Three citations were issued by Inspector Copley and paid by the
Respondent. They were for failure to maintain ventilation tubing
within 10 feet of the face, failure to rock dust within 40 feet
of the face on January 22, 1986, and for allowing work to
continue on the section without ventilation.

 According to the testimony of Meadows there was an occasion

when a State Mine Inspector looked at a scoop after Meadows said
"how about coming over there and looking at it?," as the battery
plugs were loose on the scoop. Meadows testified that after the
mine inspector looked at the scoop, Kirk said that if the scoop
would have been put out of operation then Meadows "would have
been shoveling ribs out the rest of the day." (Tr. 123). Kirk, in
essence, testified that he did not remember that incident nor in
essence did he remember making such a statement to Meadows. I
adopt the testimony of Meadows in this regard based upon my
observations of the witnesses' demeanor, and in as much as this
testimony was corroborated by May (Tr. 153).

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On January 29, 1986, when Meadows arrived on the section the
scoop was broken. He testified that Kirk told him to get two
shovels and get Nelson as the two of them would be shoveling to
clear the face area and remove coal from the ribs. It was the
testimony of Nelson that only he and Meadows shoveled. They
shoveled for approximately 20 minutes before Kirk told them to
stop.

 Nelson also testified that, in the section, prior to this

incident whenever the scoop broke down the miner would be used to
clean up the coal and that there was never any shoveling done
before in the section when the skoop broke down. Kirk's testimony
was at variance to that testified to by Nelson. I adopt the
testimony of Nelson, after having observed and evaluated the
demeanor of both witnesses, and also due to the fact that
Nelson's testimony was corroborated by May and Meadows.

                              Issues

 1. Whether Complainant has established that he was engaged

in activity protected by the Act.

 2. If so, whether the Complainant suffered adverse action as

a result of the protected activity.

   3. If so to what relief is he entitled.

Conclusions of Law

 Complainant and Respondent are protected by and subject to

the provisions of the Act, the Complainant as a miner, and
Respondent as operator of the Morton Mine. I have jurisdiction to
hear and decide this matter.

 The Commission, in a recent decision, Goff v. Youghiogheny &

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff supra at 1863,
stated as follow:

       A complaining miner establishes a prima facie case of
       prohibited discrimination under the Mine Act by proving
       that he engaged in protected activity and that the
       adverse action complained of was motivated in any part
       by that activity. Pasula, 2 FMSHRC at 2797Ô2800;
       Secretary on behalf of Robinette v. United Castle Coal
       Co., 3 FMSHRC 803, 817Ô18 (April 1981). The operator
       may rebut the prima facie case by showing either that
       no protected activity occurred or that the adverse
       action was not motivated in any part by protected

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activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958Ô59
(D.C.Cir.1984); Boich v. MSHRC, 719 F.2d 194, 195Ô96
(6th Cir.1983) (specifically approving the Commission's
PasulaÔRobinette test). Protected Activity

 On January 21, 1986 the Complainant questioned Kirk

concerning the placement of ventilation tubing. On January 22,
1986 the Compainant asked Kirk if he was going to get some rock
dust. On January 28, 1986 the Complainant told MSHA Inspectors
Mark Copley and Carl Jenkins about the failure to properly rock
dust the face area. I conclude that all of the these activities
were safety related and are protected by the Act.
Adverse Action

 In his Post Hearing Brief, Complainant complains of three

separate actions by Respondent:

 1. After Complainant questioned Kirk about the position of

ventilation tubing on January 21 he was "set up" for possible
disciplinary action.

 I accepted Complainant's testimony that Kirk had told him to

take the man trip to get additional ventilation tubing I also
accepted Complainant's testimony that when he returned to the
section Kirt informed him that it was illegal to take the man
trip off the section and denied that he had told Complainant to
take the man trip. I also accepted Pauley's testimony that Kirk
told that he did not tell Complainant to take the man trip and
that it was against the law for Nelson to take the man trip from
the section. In this context, I find that Kirk's statement to
Complainant and Pauley could reasonably tend to intimidate
Complainant and cause fear of reprisal. As such, I find Kirk's
statements to constitute an adverse action [See Moses v. Whitley
Developement Corporation, 4 FMSHRC 1475, 1478 (August 1982) ].

 2. Cummings, Wright, and Winfrey discussed with the

Complainant the possibility of transfering him off the section.

 Neither Wright, nor Cummings, nor Winfrey did discipline,

demote, or transfer Complainant subsequent to his engaging in
protected activities on January 21, 1986. The only overt actions
were discussions that Cummings, Wright and Winfrey had with the
Complainant at which time they raised the possibilty with
Complainant of him transfering off the section to another
section. These discussions, by management officials, coming soon
after Complainant engaged in protected activities, surely tended,
in some degree to cause the Complainant to feel intimidated. As
such, I conclude that they constitute an adverse action.

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3. On July 29 1986 Kirk required Complainant to shovel the face
area for approximately 20 minutes.

 Ron Winfrey, Respondent's Shift Foreman, testified that

shoveling coal is part of coal mining and that the only crew
member he would exempt would be an electrian. He further
testified, in essence, that shoveling is required when a scoop is
down. It was also his testimony that normally a suttle car
operator shovels coal around a feeder on an average of three to
five times a shift, and that nine times out of ten the shovel car
man normally cleans the spillage around the tail piece. These
statements might be true with regard to Winfrey's general
experence, but in order to ascertain the specific working
conditions in Kirk's crew, I adopted the testimony of Nelson, May
and Meadows, as being crew members, they would have personal
knowledge of the work conditions in the crew. As such, I found
that prior to January 29, 1986 no crew members had been required
to shovel coal upon the breakdown of the scoop. Accordingly, I
find that an adverse action occured when Kirk required Compainant
to shovel coal.

Motivation

 I have concluded, infra, that the discussions of Cummings,

Wright, and Winfrey with Complainant on January 21, 1986,
concerning a transfer out of Kirk's section, constituted an
adverse action. In as much as Kirk did not tell them to speak to
Nelson in this regard, and they acted soley on their own
initative, the inquiry must focus on their motivation rather than
on Kirk's motivation. These discussions took place a short time
after Complainant had engaged in protected activities. Also,
although Johnson and Nelson had an agrument over the placement of
the ventilation tubing, Wright, Cummings, and Winfrey initiated a
discussion about a transfer only with Nelson. However, Winfrey
indicated that Johnson had initiated with him a discussion of a
tranfer, and he considered talking about a transfer with Nelson
and not Johnson, as the latter was still belligerent. Winfrey
indicated that he wanted to transfer Complainant as there was
"turmoil" between him and Kirk. Kirk had told Wright and Cummings
that Complainant was the problem and Wright testified that he
wanted to talk to the Complainant in order to try to solve the
problem before it got out of hand. After the discussions that
Wright, Cummings, and Winfrey had with the Complainant, with
regard to a transfer out of the section, no futher action was
taken by them to transfer Complainant. I thus find that their
motivation in offering to transfer Complainant from the section
was not related to safety complaints.

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The adverse action against the Complainant by Kirk on January 21,
1986 in falsely accusing him of illegally using a man trip was
committed almost immediately after Complainant had engaged in a
protected activity. It establishes, prima facie, that this
adverse action on Kirk's part was motivated by Complainant's
protected activity. Respondent has not offered any evidence to
rebut this prima facie finding. Accordingly, it is concluded,
that this adverse action on Kirk's part was motivated solely by
Complainant's protected activity.

 On January 29, 1986, one day after Complainant engaged in a

protected activity in the presence of Kirk, Kirk had him shovel
coal. Further, I adopted the testimony of Meadows that on one
other occasion Kirk had told Meadows that he "would have been
shoveling ribs all day", if a piece of equipment would have been
taken out of service by a State Inspector as a result of comments
that Meadows had made. Also, I have adopted the testimony of
Meadows that after Complainant asked Kirk if he was going to get
some rock dust, that Kirk told Meadows that Nelson was "crying
about the place not being rock dust(ed)". Also, I have adopted
the version testified to by Nelson, May and Meadows that in
Kirk's section miners in the past had not done any shoveling when
the scoop had broken, and that only Complainant and Meadows, who
also had complained to Kirk about the lack of rock dust on
January 28, were singled out by Kirk to shovel coal on January
29.

 I thus find, based on the above, that the Complainant

established a prima facie case that Kirk's action, in having him
shovel coal for 20 minutes on January 29, was motivated by the
former's protected activity. I further find that Respondent has
not rebuted this finding.

 I therefore find that Complainant has met his burdon in

establishing that his being required to shovel coal for 20
minutes on January 29, 1986 constitutes a violation of Section
105(c) of the Act. I also find that Kirk's action on January 21,
1986, accusing Complainant of illegally using a man trip
constitutes a violation of Section 105(c) of the Act. The balance
of the allegations in the complaint do not establish a violation
of Seciton 105(c) of the Act.

 I have considered the size of Respondent's mining operation

and history of violations, as contained in figures submitted by
Complainant and stipulated to by the Respondent. It is
significant to note that no previous Section 105(c) violations
have been assessed. I futher find that the adverse actions taken
by Kirk against the Complainant to have been intentional. Based
on these factors as well as the nature of the adverse actions
established, I find that a penalty of $400 is appropriate.

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Order

   It is ORDERED that:

 1. Respondent shall within 15 days from the date of this

decision post a copy of this decision at the Morton Mine where
notices to miners are normally placed and shall keep it posted
there for a period of 60 days.

 2. Respondent shall pay a penalty of $400 within 30 days of

this decision.

                         Avram Weisberger
                         Administrative Law Judge