Madison Branch Management, Inc.

Plain-English summary

Ernie L. Spaulding alleged that Madison Branch Management did not hire him as a bulldozer operator because of his past work record and prior union activity. Judge Roy J. Maurer found that Spaulding did not prove he engaged in activity protected by the Mine Act. Because protected activity is a necessary element of a discrimination case, the complaint was dismissed.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: A Mine Act discrimination claim requires proof that the complainant engaged in protected activity.

Full text (FMSHRC public release)

CCASE:
ERNIE SPAULDING V. MADISON BRANCH
DDATE:
19930406
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE

              FALLS CHURCH, VIRGINIA 22041

ERNIE L. SPAULDING, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEVA 92-971-D
v. : HOPE CD 92-07
:
MADISON BRANCH MANAGEMENT, :
INC., :
Respondent :

                          DECISION

Appearances: Thomas L. Woolwine, Personnel Management
Consultants, Princeton, West Virginia, for
Respondent;
Ernie Spaulding, Pro Se.

Before: Judge Maurer

 This case is before me based on a Complaint filed by

Ernie Spaulding, alleging that he was discriminated against by
Madison Branch Management, Inc., (Madison), in violation of
section 105(c) of the Federal Mine Safety and Health Act of 1977,
(the "Act"), 30 U.S.C. 815(c). Pursuant to notice, the case
was heard in Bluefield, West Virginia, on December 29, 1992. At
the hearing, Mr. Ernie L. Spaulding appeared pro se and testified
in his own behalf. David Collins also testified on behalf of
complainant. At the conclusion of the complainant's case,
respondent made a motion for summary decision, which I took under
advisement at the time in order to hear their evidence. Messrs.
Sturgill and Logan subsequently testified on behalf of respondent
and were cross-examined by Mr. Spaulding. Finally, Mr. Spaulding
made a closing statement on the record. Following that, I
granted the respondent's motion for a summary decision.

 Complainant, who has never worked for Madison, alleges

basically that he was not hired to be a bulldozer operator at
Madison in this instance because even though he professes to be
"pretty good at it," he believes he was not given a fair tryout
on the equipment. Furthermore, he believes that the reason for
this "discrimination" was because of a previously poor work
record with other employers when he was younger. He states he
had a lot of "AWOLs" in those days, and thinks Madison might be
aware of this along with the fact that he was a "union radical"
in his previous coal mine employment. Madison's defense is
essentially that they tried him out on the equipment and he
performed poorly on the practical test.

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~673
As I explained to the parties at the beginning of this
hearing (Tr. 15-16), in order to establish a case of
discrimination under section 105(c) of the Act, the complainant
has the burden of proving that (1) he engaged in protected
activity and (2) the adverse action complained of was motivated
in any part by that protected activity. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 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 in no part motivated by protected activity.
If an 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 and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra. See also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987); Donovan v. Stafford Construction 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). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act).

 Complainant herein failed to demonstrate that he had engaged

in any prior activity that would be considered "protected
activity" under the Mine Act. Since this is a necessary element
of any discrimination case, his case has failed of proof and must
be dismissed.

                            ORDER

   It is ORDERED that this case be DISMISSED.

                              Roy J. Maurer
                              Administrative Law Judge

Distribution:

Mr. Ernie Spaulding, 201 Meadow Road, Madison, WV 25130

Mr. Thomas L. Woolwine, Personnel Management Consultants,
P. O. Box 1389, Princeton, WV 24740-1389

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