Consolidation Coal Company

Plain-English summary

Consolidation Coal Company reprimanded and threatened miner William J. Keller after he engaged in activity protected by the Mine Act. Judge William Fauver found that the company violated 30 U.S.C. § 815(c)(1) and that its policy requiring employees to report alleged safety or health problems to management before contacting an inspector or mine safety committee member also violated that section. The order requires the company to pay a $1,200 civil penalty and to stop the discriminatory conduct and reporting policy.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(1)
• Outcome: The judge found discrimination and an unlawful reporting policy, ordered a $1,200 civil penalty, and entered cease-and-desist relief.
• Key point: A mine operator may not punish protected safety activity or require workers to report safety concerns internally before contacting government or committee representatives.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19890412
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-202-D
ON BEHALF OF MORG CD 87-22
WILLIAM J. KELLER
PETITIONER Ireland Mine

      v.

CONSOLIDATION COAL COMPANY,
RESPONDENT

                          DECISION

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

Before: Judge Fauver

 This proceeding was brought by the Secretary of Labor under

105(c) of the Federal Mine Safety and Health Act of 1977, 3
U.S.C. 801 et seq. The Secretary contends that Respondent
violated 105(c)(1) by reprimanding and threatening William J.
Keller for engaging in protected activities and by applying a
company policy requiring employees to report safety complaints
first to a foreman or mine management before reporting them to a
government inspector or a mine safety committee member. The
Secretary seeks injunctive relief and a civil penalty.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings in the discussion that follows.

                    FINDINGS OF FACT

 1. On July 3, 1987, William J. Keller was working as a

precision mason in the Three North Section of Respondent's
Ireland Mine. The mine produces coal for sale or use in or
affecting interstate commerce.

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2. Keller and Harry Gallagher were building an overcast, a job
that required about eight bags of block bond. Only one bag of
block bond was at the construction site.

 3. Following a common practice at the mine, after they

applied the bag of block bond they searched for block bond in
other parts of the mine. Keller looked in the belt entry and
Gallagher searched the supply track. Both miners considered the
places in which they were searching to be part of their work area
for the purposes of the construction job.

 4. The two miners had previouly searched areas of the mine

to look for work materials, without asking permission of a
foreman and without being reprimanded for such practice. Local
union president Jerald Stephens could not recall any case in
which a miner was disciplined (before the instant case) for
leaving his work area to search for materials. Witnesses Keller,
Gallagher, Stephens, and Wise testified that it was a common
practice for miners to look for work materials in the mine.
Keller's foreman had instructed him on previous occasions that if
he needed supplies, he should look for them. Gallagher had never
been instructed that he should first contact a foreman before
looking for supplies.

 5. While looking for block bond, Keller came upon an

inspection party in the belt entry: state mine inspector Colin
Simmons, company mine safety representative Chris Alloway, and
union safety committeeman Billy Wise. Inspector Simmons cautioned
Keller by telling him that he (Keller) had just walked under an
unguarded trolly wire. After walking a bit farther, Keller
stopped, turned, and told Billy Wise that there was tight
clearance and an upguarded high line in the supply track. This
statement was audible to Inspector Simmons as well as to Wise and
others present. It was, in effect, a complaint of two alleged
safety violations or dangers.

 6. The inspection party went to the supply track area

mentioned by Keller, and there Inspector Simmons issued two state
citations for the conditions Keller had mentioned. After the
issuance of the citations, the company mine safety
representative, Alloway, asked Wise, "Does Mr. Keller always
cause trouble like this?" (Tr. 77.)

 7. After Keller finished his shift (on Friday, July 3,

1987), the shift foreman met him outside and told him that the
mine superintendent, John Snyder, wanted to see him the following
Monday.

 8. Over the weekend, Keller told the local union president,

Stephens, that Snyder wanted to see him on Monday. Stephens said
he would accompany Keller to the meeting with Snyder.

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9. That Monday, at a meeting in Snyder's office, Snyder
reprimanded Keller for reporting safety violations to a state
inspector and a safety committee member, and threatened him with
discharge if he reported safety complaints to a federal or state
mine inspector or to a union safety committeeman in the future.
Keller testified that Snyder stated, "I cost him a lot of money
on July 3rd by turning in those violations and he told me if I
ever talked to a safety committeeman or a state or federal mine
safety inspector that he would discharge me." (Tr. 12.) Stephens
confirmed that Snyder reprimanded and threatened Keller, and that
the threat was serious. (Tr. 136, 139.) I credit Keller's and
Stephens' testimony on this matter.

 10. Harry Gallaher was not reprimanded or threatened for

walking up the supply track to look for block bond.

 11. Respondent has a policy that mine employees must first

report safety hazards or violations to a supervisor or mine
management before they report them to a government inspector or
safety committee member.

             DISCUSSION WITH FURTHER FINDINGS

  In order to establish a prima facie case of discrimination

under 105(c) of the Act, a miner must prove that (1) he engaged
in protected activity and (2) the adverse action complained of
was motivated in any part by that activity. In order to rebut a
prima facie case, an operator must show that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the
miner's unprotected activity alone and would have taken the
adverse action in any event for the unprotected activity.
Secretary on behalf of Robinette v. United Castle Co., 3 FMSHRC
803 (1981).

 Keller was engaged in a protected activity when he reported

alleged safety hazards or violations to his safety committeeman,
Billy D. Wise, in the presence of a state mine inspector, on July
3, 1987.

 Respondent has demonstrated a hostile attitude towards its

miners' exercise of complaint rights protected by 105(c)(1) of
the Act. Billy Wise, who has served as a member of the mine
safety committee and grievance committee and as vice president of
the local union, testified that Respondent did not like to have
employees turn in violations to federal or state inspectors and
that many employees did not report violations because they were
afraid of reprisal. (Tr. 101-102.) Harry Gallagher testified that
an assistant mine superintendent had told him not to tell
government inspectors or safety committee members about
violations. (Tr. 124-127, 132.) Jerald Stephens, president of

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the local union, testified that some miners were hesitant to
report conditions to inspectors "because they don't want to put
their jobs in jeopardy." (Tr. 139.) I credit the testimony of the
above witnesses.

 I do not accept Respondent's contention that it was

motivated to reprimand Keller because he left his work area
without permission. Gallagher was not reprimanded for searching
for bond block at the same time Keller searched a different entry
for bond block. The evidence showed that Keller and Gallagher
were simply following a mine custom and practice in looking for
bond block away from the immediate construction site. Employees
in the past had followed this practice and there was no evidence
of any other employee being reprimanded for searching for work
materials without permission of a foreman. I find that
Respondent's contention that Keller was reprimanded because he
left the work area without permission was a mere pretext.

 Respondent, through its mine superintendent, John Snyder,

reprimanded Keller because he had reported safety violations to a
safety committeeman and to a state inspector, and threatened
Keller with discharge if he ever reported safety violations to a
federal or state inspector or to a safety committee member in the
future. This reprimand and threat interfered with Keller's right
to engage in protected activities under 105(c) of the Act and
therefore violated that section. Considering all of the criteria
for a civil penalty in 110(i) of the Act, a civil penalty of
$1,200 is assessed against Respondent for this violation.

 Respondent has a policy that mine employees must first

report safety hazards or violations to a supervisor or mine
management before they report them to a government mine inspector
or a safety committee member. The local union president, Jerald
J. Stephens, who has been employed at this mine for 19 years,
described the policy as follows: "the practice is report things
to your immediate foreman first and then if you get no
satisfaction, then you are to go on to your steps, which you see
your safety committeeman or the state or federal agency" (Tr.
147). This same policy is illustrated by the mine
superintendent's answers to the following questions (Tr.
183-184):

      JUDGE FAUVER: When you talked to Keller and Stephens,
      the thrust of what you were saying to Keller seems to
      have been that he was causing unnecessary citations for
      this mine.

      THE WITNESS: I think the thrust of the conversation was
      that he needlessly got us two citations because he left
      his immediate work area to go out there and tell
      Simmons. He could have very well got on the phone and
      called his immediate supervisor and had them corrected
      the same way.

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JUDGE FAUVER: This is something that could have been done kind of
in the family without involving the state inspector?

      THE WITNESS: Correct.

      JUDGE FAUVER: Had the inspector gone down the belt
      entry and had Keller been mixing the block bond and
      working on the overcast and if he had told the
      inspector about these two violations at that point,
      would you have reprimanded or cautioned him?

      THE WITNESS: I don't know if I would have personally
      said anything but I would have maybe had his front-line
      supervisor again go over the important step they should
      bring their problems to mine management and then we
      don't have to receive a citation to get every little
      thing that they think is wrong corrected.

      JUDGE FAUVER: Do you believe that that kind of
      communication to Keller would be a discouragement of
      his exercise of a right to talk to an inspector who is
      in his work place?

      THE WITNESS: No, sir.

  Respondent's policy inhibits miners from reporting alleged

violations or dangers to inspectors or safety committee members;
it is an unjustified interference with their exercise of rights
under 105(c)(1) of the Act, and therefore violates that
section.

 In Local Union No. 1110 and Carney v. Consolidation Coal

Company, 1 FMSHRC 338 (1979), the Commission held that a
reprimand of a safety committee member for leaving his assigned
duties to report an alleged safety violation or danger to MESA,
the predecessor to MSHA, violated 110(b) (the
anti-discrimination section) of the 1969 Mine Safety Act, which
is the predecessor to 105(c)(1) of the 1977 Act. It also held
that the company's "permission policy" -- requiring the company's
permission before a member of the safety committee could leave
his assigned duties to report safety complaints to federal
inspectors or their agency -- violated the 1969 Act's
anti-discrimination provision. The Commission affirmed Judge
Broderick's order to Consolidation Coal Company to "cease and
desist from enforcing a policy requiring [the Company's]
permission before a member of the Mine Health and Safety
Committee can leave his assigned duties to bring safety
complaints to the Secretary" (id., at 340).

 In the instant case, the Secretary is similarly entitled to

a cease and desist order regarding Respondent's violative policy
of requiring employees to report alleged violations or dangers

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first to a supervisor before reporting them to a government
inspector or a safety committee member. This ruling does not
relieve or affect a miner's obligation to report a violation or
hazard to his supervisor where special circumstances, e.g., a
work refusal, create such a duty. For example, in a work refusal
case, the following legal principles apply (quoted from the
Commission's decision in S & M Coal Company, Inc., et al (Slip
0p. p. 6; Sept 26, 1988)):

      A miner has the right under section 105(c) of the Mine
      Act to refuse to work if the miner has a good faith,
      reasonable belief that continued work involves a
      hazardous condition. Pasula, supra, 2 FMSHRC at
      2789-96; Robinette, supra, 3 FMSHRC at 807-12. See
      also, e.g., Metric Constructors, supra. Where
      reasonably possible, a miner refusing to work
      ordinarily must communicate or attempt to communicate
      to some representative of the operator his belief that
      a hazardous condition exists. Reco, supra, 9 FMSHRC at
      955; Dunmire & Estle, supra, 4 FMSHRC at 133-35. See
      also Miller v. Consolidation Coal Co., 687 F.2d 194,
      195-97 (7th Cir. 1982) (approving Dunmire & Estle
      communication requirement).

                  CONCLUSIONS OF LAW

 1. The judge has jurisdiction over this proceeding.

 2. Respondent violated   105(c)(1) of the Act on July 6,

1987, by reprimanding and threatening William J. Keller for
engaging in activities protected by that section.

 3. Respondent's policy of requiring employees to report

alleged mine safety or health violations or dangers first to a
supervisor or mine management before reporting them to a
government inspector or a mine safety committee member violates
105(c)(1) of the Act.

                          ORDER

 WHEREFORE IT IS ORDERED that:

 1. Respondent shall pay a civil penalty of $1,200 within 30

days of this Decision.

 2. Respondent shall cease and desist from reprimanding

threatening, or otherwise discriminating against employees for
engaging in protected activities under 105(c)(1) of the Act.

 3. Respondent shall cease and desist from enforcing a policy

of requiring employees to report alleged mine safety or health
violations or dangers first to a supervisor or mine

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management before reporting them to a federal or state inspector
or a mine safety committee member.

                             William Fauver
                             Administrative Law Judge