Tanglewood Energy, Inc.; Fern Cove, Inc.; Randy Burke, and Randall Key

Plain-English summary

Samuel Knotts was discharged after speaking with a mine engineer about equipment conditions, management, and safety concerns at the Coalbank Fork No. 12 Mine. The judge found that Knotts had engaged in protected activity by testifying in an earlier discrimination case, assisting MSHA inspectors, and making safety-related complaints to the engineer. The judge concluded that the discharge was motivated at least in part by protected activity and violated section 105(c) of the Mine Act. The parties were ordered to address back pay, interest, litigation costs, and a civil penalty, and the company was ordered to expunge the discharge from Knotts's personnel file.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 820(i)
• Outcome: Discrimination was found, damages and penalty proceedings were ordered, and the discharge reference was ordered expunged. The matter was later reviewed by the Commission.
• Key point: A miner's truthful safety complaints to an outside mine engineer can constitute protected activity when the miner reasonably expects the communication to improve mine safety.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF A D M INISTRA TIV E LA W JUDGES
                         2 SK YLINE, 10 th FLOOR
                          5203 LEESBURG PIK E
                    FA LLS CHURCH, V IRGINIA 22041



                          June 20, 1995

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-357-D
ON BEHALF OF SAMUEL KNOTTS, :
Complainant : MORG CD 94-3
v. :
: Coalbank Fork No. 12
TANGLEWOOD ENERGY, INC.; :
FERN COVE, INC.; :
RANDY BURKE, AND RANDALL KEY, :
Respondents :

                             DECISION

Appearances: James V. Blair, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Complainant;
Paul O. Clay, Jr., Esq., Fayetteville,
West Virginia, for Respondents.

Before: Judge Maurer

                   STATEMENT OF THE CASE

 This case is before me upon the complaint by the Secretary

of Labor on behalf of Samuel W. Knotts under Section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq., the "Act", alleging that Mr. Knotts was discharged
by the respondents on January 28, 1994, in violation of
section 105(c)(1) of the Act. The Secretary seeks back wages and
interest for Mr. Knotts as well as civil penalties against the
respondents. Respondents maintain that Knotts was not discharged
in violation of the Act, but rather was discharged because of his
involvement in an allegedly unprotected 2 hour conversation with
an outside mining engineer representing the land owners that
respondents perceived to be negative and inflammatory in nature.

 Pursuant to notice, an evidentiary hearing was held at

Fairmont, West Virginia on January 19-20, 1995. Subsequently,
both parties have filed post-hearing proposed findings of fact

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and conclusions of law which I have considered along with the
entire record and considering the contentions of the parties,
make this decision.

                      STIPULATIONS

 The complainant and respondents have stipulated to the

following:

  1. The Coalbank Fork No. 12 Mine is a coal mine and is

operated by Fern Cove, Inc.

  2. Fern Cove, Inc. is a successor in interest to

Tanglewood Energy, Inc. at the Coalbank Fork No. 12 Mine.

  3. The products of the Coalbank Fork No. 12 Mine enter

commerce and the Coalbank Fork No. 12 Mine is therefore subject
to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq. (hereinafter "the Mine Act").

  4. The administrative law judge has jurisdiction to hear

and decide this case.

  5. The assessed violation history report may be used in

determining an appropriate civil penalty.

  6. For purposes of the assessment of civil penalties the

violation history of Tanglewood Energy, Inc. at the Coalbank Fork
No. 12 Mine shall be considered to be the violation history of
Fern Cove, Inc. and vice versa.

  7. Fern Cove, Inc. and Tanglewood Energy, Inc. are jointly

and severally liable for all civil penalties assessed against
either by the Federal Mine Safety and Health Review Commission
relative to the Coalbank Fork No. 12 Mine.

  8. Complainant Samuel Knotts was discharged by respondent

on January 28, 1994.

  9. Complainant Samuel Knotts was discharged because of

respondent's belief that he spoke with mine engineer J. Randy
Campbell for over 2 hours on January 27, 1994.

 10. At the time of his discussion with mine engineer

J. Randy Campbell on January 27, 1994, Complainant Samuel Knotts
was the only representative of the respondents on the surface of
the Coalbank Fork No. 12 Mine.

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 11. On September 1, 1993, Complainant Samuel Knotts

testified on behalf of the Secretary in the case of Secretary ex
rel. Perry Poddey v. Tanglewood Energy, Inc.

 12. On January 25, 1994, Administrative Law Judge Arthur

Amchan issued a decision ordering respondent to pay Perry Poddey
over $9,000 in back wages as a result of the respondent's
violation of section 105(c) of the Mine Act.

 13. A news story about Perry Poddey's reinstatement with

back pay appeared in the January 26, 1994 edition of the
Clarksburg Telegram.

 14. A news story about Perry Poddey's reinstatement with

back pay appeared in the January 26, 1994 edition of USA Today.

 15. Complainant Samuel Knotts engaged in protected activity

under the Mine Act when he testified in the case of Secretary ex
rel. Perry Poddey v. Tanglewood Energy, Inc.

 16. Complainant Samuel Knotts engaged in protected activity

under the Mine Act to the extent that he assisted mine safety and
health inspectors in locating violations.

 17. Complainant Samuel Knotts received $3,640 in

unemployment benefits from the State of West Virginia since his
termination by respondent on January 28, 1994.

 18. Complainant Samuel Knotts is presently employed by the

West Virginia Department of Highways and has been so employed
since July 1, 1994, working 40 hours per week at a rate of $7.85
per hour. Prior to his full-time employment Mr. Knotts worked
part time for the Department of Highways for 2 months.

 19. At the time of his discharge by respondents,

complainant was working 40 hours per week at the rate of $10.00
per hour plus occasional overtime at time-and-a-half.

                    FINDINGS OF FACT

 Having considered the record evidence in its entirety, I

find that a preponderance of the reliable, relevant, and
probative evidence establishes the following findings of fact:

  l. Complainant Samuel William Knotts was employed as an

outside man for the respondent, Tanglewood Energy, Inc. and Fern
Cove, Inc. for approximately 3 1/2 years at the Coalbank Fork
No. 12 Mine prior to his discharge on January 28, 1994.

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  2. Respondent Randy Burke is President of Fern Cove, Inc.

and of Tanglewood Energy, Inc.

  3. Respondent Randall Key is a part owner and officer of

Fern Cove, Inc. and Vice-President of Tanglewood Energy, Inc.

  4. Inspector Kenneth W. Tinney testified concerning two

citations written in November of 1992, and another on January 6,
1993, for a repeat violation concerning a discharged cylinder on
the belt fire suppression system. He discussed these violations
with Knotts and Key, and after the November citations Knotts
asked him not to use his name in discussing violations with the
company anymore "because they 'kind of' blamed him for getting
the citations." Key stated that he did not recall Tinney at any
time mentioning an employee's name during discussions of safety
violations, but Key admitted that he probably discussed the vio-
lations with Knotts because certain actions needed to be taken to
correct the same and Knotts was the individual with the respon-
sibility for checking the cylinder and had the responsibility to
report any problems to Key.

  5. Inspector Reed testified that on one occasion in July

of 1993, when MSHA inspectors were having trouble reconciling
training certificates with an outdated list of certified
employees that was kept in the mine office, Knotts suggested they
compare the training certificates to current time sheets that he
pointed out to them. This resulted in Inspector Reed coming up

with four employees that had not received their training, for
which he wrote a withdrawal order. Reed also testified that
Knotts told him later on a return visit that he "got pretty well
chewed out over the training records."

  6. On August 10, 1993, Knotts made a verbal complaint to

Inspector Reed of unsafe electrical practices that led to an
electrical inspection of the mine. The electrical inspection
resulted in a number of violations being issued. There was,
however, no testimony that the respondents knew that the
electrical inspection was a result of a complaint originating
with Knotts.

  7. Respondents were generally aware, however, that Knotts

was particularly helpful in assisting mine safety and health
inspectors in locating violations.

  8. On September 1, 1993, Knotts testified on behalf of the

Secretary in the case of Secretary ex rel. Perry Poddey v.
Tanglewood Energy, Inc., 15 FMSHRC 2401 (ALJ) (1993). He gave

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testimony that directly supported the testimony of Perry Poddey,
the complainant in that case, concerning who bore responsibility
for repairing certain equipment. In his November 29, 1993
decision finding respondent Tanglewood Energy, Inc. guilty of
violating section 105(c) of the Mine Act, Judge Amchan specifi-
cally cited Knotts' testimony as supporting his finding against
the respondent on this issue, which Judge Amchan described as
"[p]ossibly the most critical issue in th[e] case." Secretary ex
rel. Perry Poddey v. Tanglewood Energy, Inc., 15 FMSHRC 2401,
2410-2411 (ALJ) (1993). On January 25, 1994, 3 days before
Knotts was fired, Judge Amchan issued a Decision on Damages
ordering Tanglewood Energy, Inc. to pay Perry Poddey over $9,000
in back wages and interest as a result of the respondent's
violation of section 105(c) of the Mine Act.

  9. A news story about Poddey's reinstatement with back pay

appeared in the January 26, 1994 edition of the Clarksburg
Telegram, and the January 26, 1994 edition of USA Today. The
story was also reported on television.

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 10. Mine engineer J. Randy Campbell arrived at the Coalbank

Fork No. 12 Mine on January 27, 1994, to conduct an inspection as
a representative of the land owners of the property, or in his
words "to investigate whether or not the operators were
efficiently mining the coal and concerning their production."

 11. Campbell's inspections, which generally lasted from

1 to 4 hours, usually included asking questions of rank and file
miners like Knotts because he felt the information he obtained
from rank and file miners tended to be more specific and more
accurate. He would also usually ask rank and file miners about
morale at a mine because of its correlation to production.

 12. There is a lot of contention in the record concerning

the length of the conversation between Campbell and Knotts on the
morning of January 27, 1994. Respondents produced a lot of
evidence that, if found credible, would tend to establish the
conversation went on for 2 hours. On the other hand, the two
participants to the conversation contend it was for no longer
than 45 minutes, and was conducted, at least for a part of the
time, while Knotts busied himself with other tasks around the
mine office. During this time, they discussed the mine's
violation history, the condition of the batteries on the ram
cars; the bypassed electrical components on the mantrips,
including the three-wheelers and four-wheelers and the fact that
a lot of them were junk or needed substantial work to be
repaired. They discussed morale issues generally, and they
talked about management and problems with management, vacations,
and the lack of vacation pay, as well as the fact that
Messrs. Key and Burke were involved at other mines and that Key
had not been working at this mine until the recent past few
months. More particularly, they discussed Key and Burke's
management style and Burke's new truck. The truck's relevance
stems from the notion that if Burke could afford a new truck, he
could also afford to give miners a paid vacation, which they had
not had for the last 2 years. Apparently, the truck had become a
"morale" issue at the mine, and Knotts thought it appropriate to
pass that information to Campbell.

 Interestingly, both Campbell and Knotts testified that

Knotts stated at the time that he could be fired if management
could hear his comments to Campbell. Mr. Key did hear those

comments via an open mike telephone line and as he predicted,
Knotts was fired the next day. In order to resolve the timing
issue, I find as a fact that the Knotts/Campbell conversation on

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January 27, 1994, lasted from 1 hour 15 minutes to 1 hour
30 minutes. In so finding, I have given the greater credibility
to the disinterested witnesses. First of all, Mr. Campbell
stated that he arrived at the mine between 7:30 a.m. and
8:30 a.m., and that at least 45 minutes elapsed after his arrival
before he began his conversation with Knotts. He also stated
that he finished his conversation with Knotts and left the mine
somewhere between 9:00 a.m. and 9:30 a.m. Operating at the
extremes of those limitations, I deduce the conversation could
have been as long as 1 hour and 15 minutes. Secondly, Mr. Young,
although he seemed uncertain and confused about some of the
details of that morning, has the advantage of no longer working
for the respondents and seemingly "has no dog in this fight." He
estimated the time during which Key listened into the
conversation on the open line telephone as "at least an hour and
a half."

 13. The decision to terminate Knotts was made by Key and

agreed to by Burke. He was actually discharged at a meeting held
in Key's office on January 28, 1994.

               DISCUSSION AND CONCLUSIONS

 The principles guiding the Commission's analysis of

discrimination under the Mine Act are well settled. A miner
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
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 (3d Cir. 1981); 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 pro-
tected activity occurred or that the adverse action was in no
part motivated by protected activity. Pasula, 2 FMSHRC at 2799-
2800. If the operator cannot rebut the prima facie case in this
manner, he nevertheless may defend affirmatively by proving that
he also was motivated by the miner's unprotected activity and

would have taken the adverse action in question for the unpro-
tected activity alone. 2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d
639, 642 (4th Cir. 1987).

 It is stipulated that Knotts engaged in protected activity

under the Mine Act when he testified in the case of Secretary ex
rel Perry Poddey v. Tanglewood Energy, Inc. and also to the
extent that he assisted mine safety and health inspectors in

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Page 8

locating violations. Furthermore, I find that his discussion
with Campbell on January 27, 1994, also constituted protected
activity under the Mine Act to the extent that Knotts made
safety-related complaints to Campbell concerning the condition of
equipment at the mine. I also find that the complaints were
truthful. In fact, much of the mine equipment was in poor
condition. The company had five golf carts (or four-wheelers)
and none were operable at the time of Knotts' discharge. At the
time of Campbell's visit, there was no ride available to bring
him underground, a condition that had occurred at least once
before. The ram cars had been brought over from another mine and
had old worn out batteries that would not hold a charge. A
number of vehicles were observed to have been rewired so that
essential safety components were either bypassed or disconnected.

 State Safety Instructor Thomas Bass and MSHA Inspector

Virgil Brown testified at length as to the possible dangers these
conditions posed, and Knotts himself described problems he and
other employees had experienced with faulty equipment.

 While the complainant need not possess any specific intent

in making statements regarding safety or health in order for his
statements to be considered protected activity, it is clear here
that the complainant had a specific intent when relating certain
information to Campbell. The complainant reasonably perceived
Campbell to be an agent of the land owners who he thought would
or could exert pressure, either directly or indirectly, on the
respondents to improve safety at the mine. When the complainant
was asked at the hearing what his purpose was in telling Campbell
about the repeated electrical violations, the complainant
responded that he thought the mining conditions would improve as
a result of his having spoken up and that the working conditions
at the mine would in turn become safer for the men. I find that

the complainant was motivated by the fact that he reasonably
thought Campbell's communication with the land owner could
positively influence safety at the mine.

 The adverse action in this case was, of course, the dis-

charge. It is stipulated in this record that the reason for the
discharge was his conversation with Campbell. Thus, there is a
clear nexus between one of the instances of protected activity
and the adverse action. The nexus between the other two
instances of protected activity and the adverse action is less
clear. I find a very fragile connection, if any; perhaps I would
liken it to background noise that maybe set the scene for Knotts'
discharge. The earlier incidents involving MSHA inspectors are
very remote in time to complainant's discharge and are not more
than peripherally relevant or material to the discharge itself.

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With regard to his testimony in the Poddey case, it also is
relatively remote in point of time. He testified on September 1,
1993, and the decision on the merits was issued November 29,
1993.

 In any event, Knotts' discharge was motivated at least in

part by his protected activity and therefore, I find that the
complainant has made out a prima facie case of discrimination
under the Mine Act. I also find that the respondents are unable
to rebut this prima facie case by showing that no protected
activity occurred or that adverse action was in no way motivated
by the protected activity. The preponderance of the evidence is
clearly to the effect that Knotts' engaged in protected activity
and that his discharge was motivated at least in part by that
protected activity.

 When a prima facie case is established, a respondent may

defend affirmatively by showing that it was also motivated by an
unprotected activity and that it would have taken the adverse
action in any event for the unprotected activity alone. Of
course, the respondent bears the burden of proof with regard to
this affirmative defense. Haro v. Magma Copper, 4 FMSHRC 1935
(1982).

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 Respondents here argue that complainant's discussion with

Campbell contained both protected and unprotected aspects and
that complainant was discharged for the unprotected aspects,
alone.

 There are two distinct problems the respondents had with

this conversation. First, it was too long. And secondly, it was
personally slanderous to both Key and Burke, at least in part.

 With regard to the first, I have found it was 75 to

90 minutes long. The Secretary makes an excellent point in his
brief to the effect that however long it was, respondent Key
condoned that activity. He stated that the underground phone
could have been used to call the surface at any time during the
conversation. According to his testimony, he easily could have
pressed down the button on the phone after the first 5 minutes of
the discussion, and told the complainant to get back to work.
Key's inaction is no different than if he was on the surface, saw
Knotts talking to Campbell and did nothing to terminate the
conversation. Moreover, for whatever amount of time he spoke to
Campbell, the complainant was essentially doing his job. He was
the only employee on the surface at the time Campbell visited the
mine and his job duties included answering questions of more or
less "official" visitors, like Campbell. It was Campbell who
initiated the discussion with complainant, as he had done on
previous occasions. He began questioning complainant because
respondents had not been able to provide him with a ride under-
ground, he was not satisfied that he had received sufficient
information from respondents over the phone to prepare his
report, and because he believed that complainant was as know-
ledgeable about mine operations as anyone else at the facility.
And most of what the complainant stated was in the form of
embellished responses to questions put to him by Campbell.

 Turning to the content of the conversation, it is true that

certain portions of what Knotts was passing on to Campbell could
be characterized as "gossip" and inflammatory language at that.
However, I find that in the context of the coal mining industry
this was pretty mild stuff compared to many other cases which
come before the trial judges of this Commission. I therefore
conclude that the unprotected portions of the Knotts/Campbell
conversation could not reasonably have formed the basis for
Knotts' discharge without more.

 On balance, I find that the respondents did not meet their

burden of proving the affirmative defense.

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 Accordingly, I conclude that respondent terminated

complainant's employment on January 28, 1994, in violation of
section 105(c) of the Mine Act.

                          ORDER

 WHEREFORE IT IS ORDERED that:

 1. Within 15 days of this decision, the parties shall

confer in an effort to stipulate the amount of complainant's back
pay due, interest on that amount, and litigation costs as well as
a reasonable civil penalty for the violation found herein, con-
sidering the six statutory criteria contained in section 110(i)
of the Mine Act. Such stipulation as to damages shall not
prejudice respondent's right to seek review of this decision. If
the parties agree on damages, the Secretary shall file a stipu-
lated proposed order on damages within 30 days of this decision.
If the parties do not agree, the Secretary shall file a list of
mutually agreed upon trial dates for a further hearing on the
issue of damages, including the civil penalty to be assessed
herein.

 2. Respondents shall expunge any reference to his

January 28, 1994 discharge from Mr. Knotts' personnel file
maintained by the company.

 3. This decision will not become final until a subsequent

order is issued concerning damages and penalty.

                            Roy J. Maurer
                            Administrative Law Judge




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Distribution:

James Blair, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

Paul O. Clay, Jr., Esq., Laurel Creek Road, P. O. Box 746,
Fayetteville, WV 25840 (Certified Mail)

dcp

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