Consolidation Coal Company

Plain-English summary

Roger Lee Wayne, Sr., a mechanic and safety committeeman at Consolidation Coal Company's Ireland Mine, sought to attend a post-inspection conference about the mine's ventilation plan as the authorized representative of miners. Judge Avram Weisberger found that the meeting was protected activity under section 103(f) of the Mine Act and that the company improperly prevented Wayne from returning to work after the meeting was adjourned. The judge found discrimination under section 105(c), ordered the company to pay Wayne for 6 1/2 hours of lost work, post the decision for 60 days, and pay a $300 penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 813(f); 30 U.S.C. § 815(c)
• Outcome: The discrimination violation was found, with back pay, posting, and a $300 civil penalty ordered.
• Key point: A miner's participation as an authorized representative in a post-inspection conference can be protected activity, and retaliating by withholding work can violate section 105(c).

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) CONSOLIDATION COAL
DDATE:
19871120
TTEXT:

Page 2

~1958

           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 87-89-D
ON BEHALF OF
ROGER LEE WAYNE, SR., MORG CD 86-13
COMPLAINANT
v. Ireland Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

                               DECISION

Appearances: Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Complainant;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before: Judge Weisberger

Statement of the Case

 This case is before me based upon a Complaint filed by the

Secretary of Labor on February 9, 1987, on behalf of Roger Lee
Wayne, Sr., alleging discrimination under Section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 185(c)
(the Act). The United Mine Workers of America filed a Notice of
Intervention on February 12, 1987. Consolidation Coal Company
(Respondent) filed, on February 25, 1987, its Answer and a Motion
to Dismiss on the ground that the complaint was untimely filed.
An Order was entered denying Respondent's Motion to Dismiss on
March 17, 1987.

 The Complainant filed a Motion for Leave to Amend Complaint

on March 23, 1987. This motion was not opposed. Complainant's
Amended Complaint seeks an Order assessing a civil penalty
against Respondent in the amount of $300 to $500.

Page 3

~1959
Pursuant to notice, this case was scheduled for trial for
June 9, 1987. Respondent filed a Motion for Continuance of the
trail on June 2, 1987. This Motion was not opposed and pursuant
to notice the case was rescheduled for August 4, 1987, in Wheeling,
West Virginia. At the hearing, David Wolfe, Roger Lee Wayne, Sr.,
David Miller, Leo Connor, and Billy Wise testified for the
Complainant. Hestel B. Riggle, Jr., and George Carter testified
for the Respondent. Respondent filed its Posthearing Brief on
October 27, 1987. Petitioner filed its proposed Findings of Fact
and Memorandum on October 28, 1987.

Stipulations

    At the hearing, the following stipulations were entered

into:
. . . [T]hat the Federal Mine Safety and Health
Administrative Law Judge has jurisdiction over the
matter; the size of the operator, Consolidation Coal
Mine as reflected on the proposed Complainant's Exhibit
Number 82 was 37,808,900 and the size of the mine at
the Ireland Mill was 1,962,774 tons; that the proposed
assessment of the specific penalty is $3,500.00 and
will not affect the operator's ability to stay in
business. . . [T]hat the complaint in this matter was
timely filed; that Roger Wayne, Complainant, is an
employee of the Ireland Mine and-that Consolidation
Coal Company operates in this case. (Tr. 3)

         . . . [T]hat the Committeemen or Safety Committeeman
         who was on the shift of an MSHA Inspector present as
         possible inspection conferences as defined by the Act
         would be the first choice as the authorized
         representative of the miners on that shift. (sic)
         . . . [T]hat it is the responsibility of the safety
         committeeman to communicate to the other miners, to
         other members of the Union, safety problems at the
         mine, results of any conferences or communications with
         the Federal Mine Safety and Health Administration, and
         the results of inspections. (sic) (Tr. 100-101).

Findings of Fact

  The ventilation plans at the Respondent's Ireland Mine are

reviewed every 6 months by MSHA Inspectors and Respondent. Prior
to the review, MSHA conducts an on-site inspection to determine
if the mine conditions are suitable to the plan and if the mine is
adequately ventilated. MSHA Inspector David Wolfe conducted an
on-site ventilation inspection on March 3, 4, 5, and 6.
Subsequently, Wolfe contacted Respondent's superintendent of mines

Page 4

~1960
to arrange for a review of the ventilation plan on March 25,
1986. According to Wolfe, in general, in a 6 month review of the
ventilation plan MSHA officials meet with Respondent's personnel
and miners to review the compliance record of Respondent in the
past 6 months, review revisions of the ventilation plan proposed
by Respondent, and discuss comments by those present as to the
plan.

 Roger Lee Wayne, Sr., a first class mechanic employed by

Respondent, was a member of the safety committee in March 1986.
Hestel Riggle told Wayne on March 24, 1986, that the following
day there would be a ventilation plan review meeting. Wayne
informed Riggle that he would probably go with him to the meeting
as he (Wayne) was working the day shift. Prior to the
commencement of the day shift at 8:00 a.m., on March 25, 1986,
according to Riggle, Wayne informed him that he was to be the
Union Representative at the meeting at 9:00. Riggle told Wayne to
go to his work section and that if he was needed at the meeting he
will be called.

 When Wolfe met with Respondent's representatives on the

morning of March 25, 1986, to conduct a 6 month review of the
ventilation plan, David Shreve of the United Mine Workers of
America was present, along with David Miller and Leo Conner, both
miner members of the safety committee, and both of whom were not
on the day shift. Also in attendance was Billy Wise, another
miner and member of the safety committee, who according to the
uncontradicted testimony of Miller was not on the day shift.

 Riggle asked Wolfe if a walkaround was needed and Wolfe said

that one was not needed at the meeting, as the miners had
sufficient representatives. Miller requested of George Carter,
Respondent's Supervisor of Industrial and Employee Relations,
that Wayne attend the meeting as he was the designated
representative of the miners. Wolfe said that a representative was
not necessary at the meeting as the meeting was not an inspection.
Carter told Miller that Wayne could be brought out to the meeting
on Union business. Miller insisted that Wayne be called and the
dispatcher notified Wayne to go to the meeting. Subsequently,
Respondent asked that the meeting be postponed for a day so they
could have a corporate representative inasmuch as Shreve from the
UMWA was present. Miller requested a postponement of 10 days to
allow the safety committee to study the revision to the ventilation
plan. The meeting was then adjourned, and when Wayne arrived, he
was told by Carter that he was on Union business and could not go
back to the mine.

Page 5

~1961
Issues

 The issues are whether the Respondent discriminated against

Wayne, in violation of Section 105(c) of the Act, and, if so,
what is the appropriate relief to be awarded Wayne, and what are
the appropriate civil penalties to be assessed against the
Respondent for such discrimination.

Laws

 Section 105(c)(1) of the Act provides, in essence, that no

person shall in any matter discriminate against or cause
discrimination against, or other wise interfere with the exercise
of the statutory rights of any miner or representative of miners
because of the exercise by such miner of any statutory right
forded by the Act. In essence, Section 103(f) of the Act,
provides that ". . . a representative authorized by his miner
shall be given an opportunity to . . . participate in pre-or
post-inspection conferences held at the mine."

 Discussion

 Complainant and Respondent are protected by, and subject to,

the provisions of the Mine Safety Act, and specifically Section
105(c) of the Act. I have jurisdiction to decide this case.

 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 follows:

         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 2797-2800;
         Secretary on behalf of Robinette v. United Castle Coal
         Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
         may rebut the prima facie case by showing either that no
         protected activity occurred or that the adverse action
         was not motivated in any part by protected activity.
         Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v.
         Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C.Cir.1984);
         Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.1983)
         (specifically approving the Commission's Pasula-Robinette
         test).

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~1962
Protected Activities

 Wolfe's uncontradicted testimony established that, in general,

a 6 month review of Respondent's ventilation plan, is preceded by
an on-site inspection to see if the mine is being properly
ventilated. Indeed, Wolfe conducted such an inspection on March
3, 4, 5, and 6, 1986. According to the uncontradicted testimony of
Wolfe, the 6 month meeting to review the ventilation plan is held
to review the compliance record of the Respondent and review
revisions proposed by Respondent to the ventilation plan.
Accordingly, I find that the meeting scheduled for March 25, 1986,
was a "post-inspection conference," within the purview of Section
103(f) of the Act, inasmuch as it is likely that conditions
observed in the on-site inspection of March 3, 4, 5, and 6, would
have been discussed. It is also clear, based upon the testimony of
Wolfe, that miner attendance and participation at this meeting is
critical to further safety at the mine, as the latter would have an
opportunity to discuss the revision to the ventilation plan, and
then to inform other miners of these changes.

 Based upon all the above, I conclude that Wayne's

participation in the March 25 conference, as an authorized
representative of the miners, is to be considered a protected
activity within the purview of Section 105(c) of the Act.

 In essence, the uncontradicted evidence presented by

Complainant establishes that Wayne, on March 25, 1986, was a safety
committeeman, and that Miller had requested that the latter, as the
designated representative of the miners, be present at the March 25
conference concerning the revision of the ventilation Plan. Further,
I note that the Parties at the hearing stipulated that the
safety committeeman who was on the shift at the time of a post
inspection conference would be the first choice as the authorized
representative of the miners on that shift. I thus conclude that,
although three other safety committeemen were already present at the
conference, that Wayne, was the "authorized" representative within
the purview of Section 103(f) of the Act, as he was working on the
shift during which the conference occurred.

 In this connection, I find that there is no relevance to the

comments that MSHA Inspector David Wolfe made at the March 25
conference that, in essence, a "walkaround" was not required by him
and that the miners were already represented by the three safety
committeemen who were present.

Page 7

~1963
Adverse Action

 Respondent, in essence, argues that it had no legal obligation

to provide Wayne with an opportunity to attend the March 25, 1986
conference. In this connection, Respondent maintains that it
reasonably relied upon the statements by Wolfe that a walkaround
was not needed inasmuch as the miners already had three safety
committeemen present. However, the critical issue is not
Respondent's good faith in asserting that it had no obligation to
allow Wayne to participate in the meeting, but rather, its actions
against Wayne, when confronted with the request that he attend the
meeting. Respondent argues, in essence, that Miller, in asking for
Wayne to be present at the meeting, placed the latter on Union
business, and thus Wayne did not suffer any loss of pay. Wolfe
testified that Miller initially requested of Respondent that Wayne
be placed on Union business (Tr. 23, 24). However, I accept Miller's
version, as it was essentially corroborated by Riggle and Carter
(Tr. 141, 158), that George Carter, Respondent's Supervisor of
Industrial and Employee Relations told him that Miller would not be
brought out of the mine unless he went on Union business (Tr. 105,
106).

 Miller then insisted that Wayne be brought out of the mine to

attend the meeting. When Wayne arrived the conference had been
adjourned, but Carter told Wayne that he could not go back to the
mine as he was on Union business. This had the effect of causing
Wayne to loose his pay for the balance of the day. Accordingly, it
is clear that Respondent's refusal to allow Wayne to return to the
mine after the March 25 conference had been adjourned, constitutes
an adverse action.

Motivation

 The record tends to support a conclusion that Respondent did

not have any improper motive in concluding, in essence, that it did
not have any obligation to have Wayne attend the March 25
conference, as it relied upon the comments by Wolfe that such
attendance was not necessary. However, once the conference was
adjourned, there does not appear to be any basis for Carter's action
in refusing to allow Wayne to return to the mine, other than to
punish him for attempting to attend the meeting. Accordingly, it is
concluded that Respondent's action in not allowing Wayne to return
to the mine, was motivated solely by Wayne's asserting his rights
under Section 105(c) and attempting to attend the March 25
conference. Accordingly, it is concluded that Respondent did
violate Section 105(c) of the Act, as it did commit an act of
discrimination against Wayne within the purview of Section 105(c)
of the Act.

Page 8

~1964
In assessing a penalty to be imposed against Respondent, I have
considered the size of Respondent's mining operation as stipulated
to by the Parties. I have also taken into account the gravity of
the violation committed wherein. Also, although it might be
concluded that Respondent acted in good faith in initially
refusing to permit Complainant to attend the March 25 conference,
I find that the adverse action committed by Carter against Wayne in
not allowing him to return to the mine, was intentional. Based on
these factors, I find that a penalty of $300 is appropriate.

                                 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 Ireland Mine where
notices to miners are normally placed, and shall keep it posted
there for a period of 60 days.

 2. Respondent, shall within 15 days from the date of this

Decision, pay Complainant for the 6 1/2 hours he would have worked
on March 25, 1986, had he not been refused permission to return to
work.

 3. Respondent shall pay a penalty of $300 within 30 days of

this Decision.

                                Avram Weisberger
                                Administrative Law Judge