Consolidation Coal Company

Plain-English summary

Consolidation Coal Company restricted David P. Clarke, a miners' representative at the Ireland Mine, from accompanying MSHA inspectors at the River Portal because the company preferred a representative already working there. Judge Avram Weisberger found violations of the Mine Act's walkaround and anti-discrimination protections. The order required Consolidation to post a notice, stop interfering with Clarke's inspection rights, and pay a $200 civil penalty.

Decision snapshot

• Cited standard(s): 30 U.S.C. §§ 813(f) and 815(c)(1)
• Outcome: The walkaround and discrimination violations were found, with a $200 penalty and cease-and-desist relief.
• Key point: An operator's convenience-based policy cannot override a designated miners' representative's right to accompany inspectors.

Full text (FMSHRC public release)

CCASE:
CONSOLIDATION COAL V. SOL (MSHA)
DDATE:
19890331
TTEXT:

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

CONSOLIDATION COAL COMPANY CONTEST PROCEEDING
CONTESTANT
Docket No. WEVA 88-184-R
v. Citation No. 2949890; 3/1/88

SECRETARY OF LABOR, Ireland Mine
MINE SAFETY AND HEALTH Mine ID 46-01438
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-209
PETITIONER A. C. No. 46-01438-03730

      v.                              Ireland Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-282-D
ON BEHALF OF DAVID P. CLARKE,
COMPLAINANT MORG CD 88-7

      v.                              Ireland Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

                           DECISION

Appearances: Anita D. Eve, Esq., Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary;
Michael Peelish, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Respondent.

Before: Judge Weisberger

Statement of the Cases

 In these consolidated cases the Secretary (Petitioner) seeks

a civil penalty for an alleged violation by the Operator
(Respondent) of section 103(f) of the Federal Mine Safety and
Health Act of 1977, and the Respondent has contested the

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violation and alleges that the underlying citation be vacated. In
addition, the Secretary on behalf of David P. Clarke seeks, in a
Complaint filed on June 27, 1988, and in an Amended Complaint
filed on July 20, 1988, seeks a civil penalty and various
declaratory relief alleging that Respondent unlawfully
discriminated against Clarke in violation of section 105(c)(1) of
the Act. Respondent filed its Answer to the Complaint on July 11,
1988. Subsequent to notice, the cases were heard in Wheeling,
West Virginia, on December 14, 1988. David P. Clarke, David
Miller, and Lyle Tipton testified for Petitioner, and John Hiram
Snyder and Hestle B. Riggle, Jr., testified for Respondent.

 The Parties were allowed 3 weeks after receipt of the

Transcript to file Proposed Findings of Fact and Memorandum of
Law. Respondent filed its Brief on March 21, 1989. Petitioner did
not file any Brief or Proposed Findings of Fact.

Stipulations

 At the hearing the Parties submitted the following

stipulations:

 1. Consolidation Coal Company is the owner and operator of

the Ireland Mine located in Marshall County, West Virginia.

 2. Consolidation Coal Company and the Ireland Mine are

subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977.

 3. The Administrative Law Judge has jurisdiction over this

case pursuant to section 105 of the Act.

 4. Section 104(a) Citation No. 2949890 was issued by Lyle R.

Tipton, a duly authorized representative of the Secretary of
Labor.

 5. The appropriateness of the penalties, if any, to the size

of the coal operator's business, should be based on the fact that
in the previous calendar year, 1987, the Ireland Mine produced an
annual tonnage of 2.3 million and the contracting company,
Consolidation Coal Company, had an annual tonnage of 48.5
million.

 6. The history of previous violations should be determined

based on the fact that the total number of assessed violations in
the preceding 24 months is 652, and the total number of
inspection days for that period is 687.

 7. Assessment of a civil penalty in these proceedings will

not affect the operator's ability to continue in business.

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Issues

 Essentially the ultimate issue to be decided in each of the

above captioned cases, which have been consolidated, is whether
Respondent discriminated against David P. Clarke in violation of
section 105(c)(1) of the Act. In this connection, Respondent
argues that Clarke was not engaged in any protected activities.
However, Respondent concedes that if it be found that Clarke did
in fact engage in protected activities, then it is not disputed
that Respondent took adverse action against Clarke based solely
upon his protected activity. As such, the critical issue to be
determinedherein is whether or not Clarke engaged in any
protected activities.

Findings of Fact and Discussion

 David P. Clarke, a miner employed by Respondent at the

Moundsville Portal of its Ireland Mine, is an elected Safety
Committeeman of the union representing the miners at the Ireland
Mine. In this capacity it is his responsibility, along with the
three other members of the safety committee, to accompany MSHA
inspectors on inspections of the Ireland Mine. On December 21,
1987, Hestle B. Riggle, Jr., Respondent's safety supervisor, in
response to Clarke's inquiry, advised him at the beginning of the
day shift, that an MSHA inspector was at the River Portal that
morning to perform an inspection. Clarke informed Riggle that he
was the elected official on the Union's Safety Committee, and
requested of the latter permission to go to the River Portal to
accompany the inspector on the inspection. Riggle denied his
request and indicated that, in essence, the designated Union
members at the River Portal, which was approximately 12 miles
from the Moundsville Portal, would go with the Inspector. Clarke
then made the same request of George Carter and received the same
response. Subsequently on January 12 and January 16, 1988, Clarke
made similar requests to accompany the MSHA inspector at the
River Portal, and the requests were denied for the same reasons.
At each instance there were no Union Safety Committeemen at the
River Portal. Further, on March 1, 1988, Clarke made a similar
request to accompany an MSHA inspector at the River Portal, and
John Hiram Snyder, Respondent's operations superintendent at the
Ireland Mine, informed him that he (Snyder), would not allow
Clarke to travel to the River Portal unless the inspector would
write a violation. Lyle Tipton, a MSHA Journeyman inspector, on
March 1, 1988, issued a Citation No. 2949890 alleging that
Respondent violated section 103(f) of the Act in refusing Clarke
permission to accompany him at the inspection at the River
Portal.

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The local Union representing the miners at Respondent's Ireland
Mine had prepared separate walk-around lists for the Moundsville
Portal, River Portal, and Preparation Plant. According to the
uncontradicted testimony of Snyder, the walk-around list for the
Moundsville Portal was posted on the Portal's bulletin board. The
Complainant's name was not on the posted list. The walk-around
list for the River Portal and the one for the Preparation Plant
were posted in those areas respectively. According to Snyder,
prior to Clarke's request on December 21, 1987, it was the
practice that an inspector commencing an inspection at the
Moundsville Portal would get a walk-around from among the workers
in that area. In 1987 and 1988 respectively, David Miller gave
management an updated walk-around list containing only the four
names of the safety committeemen as designated representatives.
According to Miller, these lists stated that if one of the safety
committeemen was not present, then the miners were free to choose
their representative as per the Act. He further testified that
the more extensive walk-around list was to be used at a specific
location if the miners' Union representative was not present at
that shift in 1985. Tipton indicated that in performing
inspections, in the event that none of the walk-around specified
on the walk-around list were present on the shift, he then
offered an opportunity to the miners to select a representative
to participate in the inspection.

 It appears to be the position of Respondent that, in

essence, inasmuch as the miners' representatives to accompany the
inspector could be selected from a broad list supplied by the
Union, Clarke was not engaged in any protected activities when he
asked to travel from the Moundsville Portal to the River Portal
to accompany the Inspector. I find however, that in resolving the
issue of whether Clarke engaged in protected activities an
analysis must be made of Clarke's rights, as opposed to an
analysis of management's duties and responsibilities. In this
connection, testimony from Miller and Clarke, which has not been
contradicted, establishes that Clarke was elected by the Union
representing the miners at the Ireland Mine, to serve as a safety
committeeman. Further, as their testimony has not been
contradicted, it established that in this capacity Clarke had a
right to represent the miners in accompanying the MSHA inspector
on an inspection. In this connection, Clarke explained that to
disallow him to travel with an Inspector on an inspection would,
in essence, decrease the effectiveness of his being an authorized
representative of the miners as a member of the safety committee,
inasmuch as in that capacity he receives complaints from miners
with regard to various hazards at the mine. Hence, he explained
that if he would be unable to accompany an inspector at the River
Portal, he would not be able to bring to the attention of the
inspector the safety complaints of the miners he

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represents. I thus conclude that Clarke, in requesting of
management on the various dates in issue, the opportunity to
travel from the Moundsville Portal to the River Portal to
accompany an inspector on an inspection, was engaging in a
protected activity. (See, Secretary on behalf of Richard Truex v.
Consolidation Coal Company, 8 FMSHRC 1293 (1986)). Hence,
inasmuch as Clarke was a representative of the miners, and
authorized by them, he thus had a right to accompany the
inspector as requested pursuant to section 105 of the Act (See,
Truex, supra). Thus, inasmuch as Clarke had engaged in a
protected activity on each occasion that he requested to
accompany an inspector on an inspection, and it is essentially
not contested that adverse action was taken against him in
denying him this right, it is concluded that Complainant herein
has established a prima facie case of discrimination. (See,
Secretary of behalf of Pasula v. Consolidation Coal Company 2
FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds
sub. non. Consolidation Coal Company v. Marshall, 663 F 2nd 1211
(3rd Cir. 1981)). This prima facie case has not been rebutted,
nor has Respondent herein established an affirmative defense.
Thus, I conclude that there has been a violation of section
105(c) herein, and also of section 103(f).

 In assessing a penalty for the violation found herein, I

have taken into account and adopted the stipulations of the
Parties with regard to the size of Respondent's operation, the
history of its violations in the preceding 27 months, and the
stipulation that an assessment of a penalty will not affect its
ability to continue in business. With regard to Respondent's
negligence, I have taken into account the testimony of
Respondent's witnesses that the denial of Clarke's request to
accompany the inspectors at the River Portal was based upon prior
policy that miners working at that area be the ones to accompany
the inspector. In this connection, Snyder explained the policy by
indicating that a miners' representative traveling from the
Moundsville Portal to the River Portal to accompany an inspector
would lose production time during the travel between the two
Portals, in contrast to having a representative from the miners
already working at the River Portal accompany the inspector at
that site. As such, Respondent's policy in this regard appears to
be based upon a business reason. I also have taken into account
Snyder's testimony that he conferred with legal counsel who
advised him not to change the Respondent's policy in this regard.
I also note that on each of these occasions when Clarke was
deprived of his right to accompany the inspector, another miners'
representative did indeed go with the inspector. However, with
regard to the gravity of the violations, I note, as discussed
above, that the deprivation of Clarke's right to accompany the
inspectors at the River Portal would tend have the

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effect of diminishing the effectiveness of safety complaints made
by miners to him in his capacity as member of the safety
committee. Taking into account all of the above factors, I
conclude that a penalty herein of $200 is appropriate for the
violations found herein.

                           ORDER

 It is ORDERED that, within 30 days of this Decision,

Respondent shall post a notice stating that it will not violate
section 105(c) of the Act. It is further ORDERED that Respondent
shall cease and desist attempts to interfere with the right of
David P. Clarke to accompany inspectors on inspections as the
designated representative of the miners.

 It is further ORDERED that Respondent shall, within 30 days

of this Decision, pay $200 for the violations found herein.

                              Avram Weisberger
                              Administrative Law Judge