Consolidation Coal Company

Plain-English summary

Consolidation Coal Company reassigned Donald Zecco from a continuous-miner production section to a seal-construction project after he had complained about methane and sulfur conditions and followed additional safety precautions. The Commission considered whether the reassignment was motivated by his protected safety activity or by legitimate business reasons, including lower production and his relative skill with a satellite miner. It affirmed the judge's result, finding that the record did not establish illegal motivation, while explaining that safety-based shutdowns and reasonable extra precautions are protected activity. One Commissioner dissented, arguing that the judge should have evaluated the connection between the protected activity and lower productivity in the first instance.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.323(b), 75.362(d)(1)(iii), and 75.402; 30 U.S.C. § 815(c)
• Outcome: The Commission affirmed the ALJ's result that Consolidation Coal did not discriminate against Zecco.
• Key point: A miner's compliance with methane controls and reasonable additional safety precautions is protected activity, but the record here did not prove that those activities motivated the reassignment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                      September 30, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of DONALD E. ZECCO :
:
v. : Docket No. WEVA 97-82-D
:
CONSOLIDATION COAL COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners1

                                           DECISION

BY: Jordan, Chairman; Riley and Verheggen, Commissioners

    In this discrimination proceeding, arising under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), Administrative Law Judge Gary
Melick determined that Consolidation Coal Company (“Consol”) did not violate section 105(c)
of the Act,2 30 U.S.C. § 815(c), when it reassigned Donald Zecco from a production section
where he operated a continuous miner to a construction project where he did general inside
laborer duties. 20 FMSHRC 497 (May 1998) (ALJ). The Commission granted the Secretary of
Labor’s petition for discretionary review filed on behalf of Zecco challenging the judge’s
decision. For the reasons that follow, we affirm the judge in result.

   1
     Commissioner Beatty recused himself in this matter and took no part in its

consideration.
2
Section 105(c)(1) provides in pertinent part:

                      No person shall discharge or in any manner discriminate
              against or cause to be discharged or cause discrimination against or
              otherwise interfere with the exercise of the statutory rights of any
              miner, [or] representative of miners . . . because of the exercise by
              such miner, [or] representative of miners . . . of any statutory right
              afforded by this Act.

                                       21 FMSHRC 985

                                              I.

                            Factual and Procedural Background

    Zecco worked for Consol at its Robinson Run No. 95 Mine in Marion County, West

Virginia, and had 15 years experience as a continuous miner operator. 20 FMSHRC at 498; Tr.
26; Am. Compl. at 2. In October 1995, he was assigned as a continuous miner operator to the
midnight shift on the 6D section. 20 FMSHRC at 498. The mining conditions on the 6D section
were unfavorable due to high levels of methane, sulfur in the coal seam, water, and roof
problems. Id. The methane level was so high that the 1 percent warning light on Zecco’s
continuous miner came on almost every time he started cutting coal. Id.; Tr. 33. When this
occurred, he was required by 30 C.F.R. § 75.323(b)3 to deenergize the miner and check the
methane level until it fell below 1 percent. 20 FMSHRC at 498. The sulfur in the seam caused
sparks to fly off the barrel of the continuous miner, damaging cutting bits and, at times, causing a
ring of fire at the head of the miner. Id.

    According to Zecco, the combination of high methane levels, sparks caused by the sulfur,

and dusty conditions created a serious risk of an explosion. Id.; Tr. 34-35. From October to mid-
December 1995, he and his crew took additional safety measures to reduce the risk, including
testing for methane with a handheld monitor more frequently than required by Department of
Labor Mine Safety and Health Administration (“MSHA”) safety standards (see 30 C.F.R. §
75.362(d)(1)(iii)); doing frequent ventilation tubing checks; hanging additional ventilation
curtain to improve the air at the face; stopping to rock dust more frequently than required by
MSHA safety standards (see 30 C.F.R. § 75.402); and washing down the continuous miner to
minimize float coal dust. 20 FMSHRC at 498; Tr. 35-37, 599.

    Zecco claimed that these additional safety precautions, and the maintenance delays

caused by sulfur damage to the bits, slowed down the mining cycle. 20 FMSHRC at 498. The
three shifts on the 6D section produced an average of 46.3 feet per shift in October 1995, while
the 7D and 8D sections produced an average of 72.4 and 69.4 feet per shift, respectively. Id. at
498-99. During October through December 1995, Zecco’s midnight shift on the 6D section
produced an average of from 3.4 to 10 feet less per shift than the day or afternoon shifts working
in the same location and using the same equipment. Id. at 499; Poland Tr. 39, 122; Tr. 354.

   3
       Section 75.323(b) provides in pertinent part:

                    (b) Working places and intake air courses. (1) When 1.0
            percent or more methane is present in a working place . . .
            electrically powered equipment in the affected area shall be
            deenergized, and other mechanized equipment shall be shut off . . .
            [and n]o other work shall be permitted in the affected area until the
            methane concentration is less than 1.0 percent.

                                     21 FMSHRC 986

    In early October 1995, Zecco checked the auxiliary fan in the 6D section because he

believed it was not pulling enough air into the section. 20 FMSHRC at 499. He found that it
was rated at 40 horsepower, whereas the other sections had 50 horsepower fans. Id. Zecco
complained 10 to 12 times to mine management, including to assistant mine superintendent
Rodney Poland, about the inadequate fan as well as methane and sulfur conditions on the 6D
section. Id. at 499-500; Tr. 66.4 In mid-November, he told Poland that, as required by law, he
would not run the continuous miner when the methane warning light was activated. 20
FMSHRC at 499.

    In mid-December, there was a major workforce reduction and “realignment” at the mine

due to the completion of a conveyor belt haulage system. Id. at 501. From a total of 450 miners,
75 were laid off and approximately 125 were reassigned to different shifts, portal assignments,
and job classifications. Id. The portal assignment of many miners was changed from the
Oakdale Portal to the Robinson Run Portal or vice versa. Id. Around this time, a construction
project (the “seal construction project”) was started to seal off parts of the mine. Id.

    At the same time, Consol decided to set up a longwall in the 6D section and needed to

maximize mining progress in the section in order to begin installing the longwall on schedule.
Id. at 502. Poland also wanted to improve production on the midnight shift on the 6D section.
Id. At the time, Zecco, Rick Garcia, Jennings O’Dell, and John Belcastro were the continuous
miner operators on the midnight shift at the mine. Poland Tr. 55. According to Poland, Garcia
was an excellent continuous miner operator and he decided to replace Zecco and his crew on the
midnight shift in the 6D section with Garcia and his crew in order to improve production. 20
FMSHRC at 502; Poland Tr. 67-68.

    In December 1995, the mine was using two kinds of continuous miners at the Oakdale

Portal: 12CM miners in the 6D section and 14CM satellite miners in the 7D and 8D sections. 20
FMSHRC at 502; Poland Tr. 39-40. The satellite miners were larger and harder to operate than
the 12 CM miners, and it was difficult to move them between sections. 20 FMSHRC at 502.
O’Dell, considered to be the best available satellite miner operator, was retained as the 7D
section satellite miner operator. Id.; Tr. 602. Belcastro was reassigned from the Robinson Run
Portal to the Oakdale Portal as the 8D section satellite miner operator because, according to
Consol, he was a better satellite miner operator than Zecco. 20 FMSHRC at 500, 502. Zecco
was reassigned to the seal construction project at the Robinson Run Portal as a continuous miner
operator. Id. at 500.

   Belcastro was the least senior and Zecco was the most senior continuous miner operator

on the midnight shift. Id. On December 16, Zecco protested his reassignment to Poland. Id.

   4
      The fan was upgraded to 50 horsepower in January 1996, after Zecco had been

transferred off the section, and 70 horsepower fans were later installed on all the sections. 20
FMSHRC at 500.

                                     21 FMSHRC 987

When his reassignment was not canceled, Zecco filed a grievance pursuant to Article 23(c) of the
National Bituminous Coal Wage Agreement of 1993 (the “Contract”). 20 FMSHRC at 500, 502.
Zecco claimed that he was being improperly reassigned because he had a seniority right under the
Contract to remain as a continuous miner operator on an active production section. Id.; Tr. 105,
116, 128-29. After Zecco filed his grievance, Poland told him that he was reassigned because of
his low productivity. Tr. 103-04.

    Although Zecco was transferred to the Robinson Run Portal as a continuous miner

operator, he did not operate a miner during his time there. 20 FMSHRC at 500-01; Tr. 129.
Instead, he performed general inside laborer duties, including building cribs, shoveling belt
spillage, carrying belt structure, dragging and setting posts, shoveling snow out of the mine
entrance, and pumping water out of the seals. 20 FMSHRC at 500; Tr. 129-32. Zecco described
this work as “a lot more physical” than his work at the Oakdale Portal and testified that it
sometimes required bending and walking under low top for up to four miles, crawling and
working in areas under two feet high, and working while standing in water. Tr. 129-32.

    On January 11, 1996, Zecco filed the instant discrimination complaint with MSHA,

claiming that he was reassigned to the Robinson Run Portal because he made protected safety
complaints to Consol and because he shut down his continuous miner when the methane warning
light was activated. 20 FMSHRC at 503; Am. Compl., Attach. A. In February 1996, when
Consol realized it lacked enough miners at the Oakdale Portal to move the longwall to the 6D
section, it transferred the seal construction project crews, including Zecco and his continuous
miner crew, back to the Oakdale Portal to help with the move. 20 FMSHRC at 503; Poland Tr.

44. From February 20, 1996, when he returned to the Oakdale Portal, until October 1996, Zecco
    worked as a floater, substituting for other continuous miner operators, building cribs, helping
    with the longwall move, and operating other mining equipment. 20 FMSHRC at 501; Tr. 133.
    Zecco’s grievance was resolved in October 1996 when he was assigned full-time to a continuous
    miner and was paid for 75 hours of overtime lost as a result of not working exclusively on
    continuous miners. 20 FMSHRC at 501. Zecco’s discrimination claim subsequently proceeded
    to hearing before Judge Melick.

    The judge found that Consol did not discriminate against Zecco in violation of section
    

    105(c) of the Mine Act. Id. at 507. Although he found that Consol knew about Zecco’s
    protected safety complaints and assumed that adverse action (the transfer to the seal construction
    project) had occurred, id. at 503-04, he found that the Secretary had failed to show that the
    adverse action was motivated in any part by Zecco’s protected activity. Id. at 504. The judge
    held that no inference of improper motive could be drawn because there was a rational, objective,
    non-protected business rationale for Zecco’s transfer (his crew’s low productivity and his
    inadequate operation of the satellite miner). Id. at 506. He also determined that Zecco did not
    suffer disparate treatment when he was transferred because Consol planned to use him as a
    continuous miner operator on the seal construction project and because other continuous miner
    operators were also transferred to the project. Id. Alternatively, the judge found that, even if
    Consol was motivated in part by Zecco’s protected activity, Consol could have defended

                                    21 FMSHRC 988
    

affirmatively because it would have transferred Zecco based solely on his unprotected activity
(his lower production and inadequate operation of the satellite miner). 20 FMSHRC at 507.

                                             II.

                                        Disposition

    The Secretary argues that the judge erred in holding that Consol proved that it relied on

rational, objective business reasons for Zecco’s transfer. S. Br. at 32-34. She contends that the
judge’s finding that Zecco was a less capable satellite miner operator than Belcastro is not
supported by substantial evidence. Id. at 33-38. She also argues that, because Zecco’s lower
production resulted directly from his protected safety measures, the judge should not have
viewed Zecco’s lower production as an objective business reason for the reassignment. Id. at 32­
33.

    Consol claims that substantial evidence supports the judge’s finding that Zecco was not

transferred in retaliation for his protected activities. C. Resp. Br. at 18-23. It argues that he was
transferred because he was less able to operate the satellite miner than Belcastro, and because his
crew had the lowest productivity of the three shifts on the 6D section. Id. at 23-26.

    A complainant alleging discrimination under the Mine Act establishes a prima facie case

of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2799 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (Apr. 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. See Robinette, 3 FMSHRC at 818 n.20. 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 and would have taken the adverse action for the
unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-
Robinette test).

   It is undisputed that Zecco engaged in protected activity and that the transfer to the seal

construction project subjected Zecco to more physically demanding work which was performed
under harsher conditions. Assuming this transfer constituted adverse action sufficient to prevail

                                     21 FMSHRC 989

under section 105(c),5 the only issue raised in this case is whether Zecco’s transfer was motivated
in any part by his protected activity, or whether instead it was due to legitimate business reasons.
The judge found that the transfer was not motivated by Zecco’s protected activity because his
complaints were not the kind to typically elicit hostility and retaliation from management. 20
FMSHRC at 505. The judge also noted that Consol replaced the 40 horsepower fan with a 50
horsepower fan after Zecco was transferred, and subsequently replaced all the 50 horsepower
fans with 70 horsepower fans. Id. In addition, he took into account the fact that other miners
complained about the fan and suffered no adverse action. Id. at 505-06. The judge also
concluded that “even assuming, arguendo, that Zecco’s transfer was motivated in part by his
protected activity, . . . Consol would nevertheless have successfully defended affirmatively by
proving that it would have transferred Zecco in any event, based on his unprotected activity
(lower productivity and inadequacy in operating the satellite miner) alone.” Id. at 507. Although
we agree with the Secretary that the judge should have considered whether Consol’s productivity
defense was intertwined with Zecco’s protected activity, our review of the entire record leads us
to agree with the judge that there was no illegal motivation, and to affirm the judge’s decision in
result.

   A.      Zecco’s relative lack of skill on the satellite miner

    In reviewing the Secretary’s claim of illegal motivation, we turn first to her assertion that

substantial evidence does not support the judge’s finding that Consol transferred Zecco in part
for the legitimate, non-discriminatory business reason that he was a less able satellite miner
operator than Belcastro.6 Although several miners testified that Zecco was a very good satellite

   5
     Adverse action “is not simply any operator action that a miner does not like.” Secretary

of Labor on behalf of Price & Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1533
(Aug. 1990). The judge did not directly discuss adverse action but implied in his decision that
Zecco’s transfer to the seal construction project met that element of the Secretary’s case. See 20
FMSHRC at 503-04. In addition, Consol did not dispute that Zecco’s transfer constituted
adverse action.
6
The judge correctly declined to address the issue of whether the Contract precluded
Consol from reassigning Zecco, despite his seniority, to the seal construction project because he
was less experienced with the satellite miner than Belcastro. 20 FMSHRC 503 n.4. We have
held that “[t]he Commission and its judges have neither the statutory charter nor the specialized
expertise to sit as a super grievance or arbitration board meting out industrial equity.” Secretary
of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516 (Nov. 1981),
rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). Even if the Secretary could demonstrate
that Consol violated the Contract when it transferred Zecco, that in itself would not show that it
discriminated against Zecco because Consol may apply the same contractual interpretation to all
similar miner transfers. Indeed, as the judge noted, Consol claims to have a general right under

the Contract to transfer miners to different mine locations, irrespective of seniority. 20

                                     21 FMSHRC 990

miner operator or at least as good as Belcastro (Tr. 431-32, 480-81, 569, 906-07), the judge
accepted Poland’s testimony that “the general consensus of mine management [was] that Zecco
had struggled with the satellite miner and Belcastro had performed well on the satellite miner.”
20 FMSHRC at 502. The judge also noted that “Zecco’s own witness, Albert Titus, recognized
that Zecco was not as good at running the satellite miner as” Belcastro. Id.; Tr. 606. Even Zecco
testified that, at the time of his reassignment, Belcastro was “[p]robably a little more”
experienced than he at operating satellite miners. Tr. 227. We find that there is substantial
evidence in the record to support the judge’s conclusion that Zecco was a less able satellite miner
operator than Belcastro, and that Consol in part based its decision to transfer him on this
legitimate, non-discriminatory business reason.

   B.      Zecco’s lower productivity

    The Secretary also asserts that Consol’s decision to transfer Zecco was motivated in part

by the fact that he took certain safety measures which resulted in reduced production. S. Br. at
17-18. There is no dispute that Consol transferred Zecco out of the 6D section, at least in part,
because of his lower productivity compared to the other shifts. 20 FMSHRC at 502, 505; Poland
Tr. 58, 187-88. The Secretary contends that the judge erred in treating Zecco’s low productivity
as a neutral business justification because the low productivity resulted from Zecco’s protected
activity. S. Br. at 32-33.

     The Commission has held that the Secretary may establish unlawful motivation through

evidence that the operator took action based on an ostensibly neutral factor which was itself
inextricably linked with the protected activity. See Secretary of Labor on behalf of Glover v.
Consolidation Coal Co., 19 FMSHRC 1529, 1535-36 (Sept. 1997). In Glover, the Commission
ruled that Consol could not rebut the prima facie case with evidence that its transfer of
complainants to a more dangerous job assignment was based on their absences, when the
absences were themselves the direct result of the complainants’ exercise of their protected
activities (their walkaround rights). Id. at 1537. The Commission noted that Senate legislative
history states that a finding of discrimination should be made whenever protected activities
contribute “in any manner” to adverse action. Id. at 1535-36. We agree with the Secretary,
therefore, that productivity loses its status as an objective business rationale if it is inextricably
linked with protected activity. We must therefore determine if the record could reasonably allow
one to conclude that such a link existed in this case.

   The protected activity allegedly related to Zecco’s productivity falls into two categories:

(1) Zecco’s refusal to operate the continuous miner while the methane warning light was on and
(2) additional safety precautions taken by Zecco and his crew, which were over and above those
required by MSHA’s regulations. We address each of these categories separately.
1. Continuous Miner Shutdown

FMSHRC at 506 n.5; Poland Tr. 50-51.

                                      21 FMSHRC 991

     Section 75.323(b) requires deenergizing electrically powered equipment and shutting

down other mechanized equipment when 1.0 percent or more methane is present. Zecco made it
clear to mine management, including Poland, that he would not mine with the methane warning
light activated.7 20 FMSHRC at 499. The Secretary argues correctly that such refusal is
protected. S. Br. at 14-15. Heeding the command of a mandatory safety standard promulgated
pursuant to the Mine Act is clearly the exercise of a protected right. An operator may not
retaliate against a miner for invoking such a right (and in fact, Consol does not argue otherwise).
If Zecco had demonstrated that his shift’s lower productivity was a result of his compliance with
the mandate of § 75.323(b), we agree with the Secretary that Consol could not rely on
productivity levels to rebut the Secretary’s prima facie case. In such circumstances, productivity
would no longer be viewed as a legitimate business justification for Zecco’s transfer.

    We recognize that the judge did not utilize this analytical framework when he pronounced

Zecco’s low productivity to be a “rational, objective, non-protected business reason for Zecco’s
transfer . . . .” 20 FMSHRC at 506. While we would normally remand in such a case, our review
of the record leads us to conclude that there is no need to do so here.

    In order for Zecco to prove that his compliance with section 75.323(b) was the reason

productivity suffered on the midnight shift, he had to either prove that more methane was emitted
on his shift, and that therefore more shutdowns were necessary, or he had to prove that the
miners on the other shifts were not always deenergizing their machines when the methane
warning light was activated.

    Zecco did not even allege, much less prove that the miners on the other shifts were failing

to deenergize equipment as required by the regulation. Indeed when questioned on this point,
Zecco asserted that he had no reason to believe that the miners on the other shifts were failing to
deenergize the equipment as required. Tr. 261-62. Zecco attempted instead to prove that more
methane was emitted on the midnight shift because of lower barometric pressure. 20 FMSHRC
at 507. The judge considered this argument but concluded that the evidence failed to support it.
“While Complainant maintains that lower productivity on the midnight shift may have been the
result of lower barometric pressure there is no evidence that the actual barometric pressures were
lower nor of the actual correlation between such pressure and methane emissions on the 6D
Section.” Id. We see nothing in the record that causes us to disturb the judge’s findings on this
issue.

    Given the fact, therefore, that the record contains no evidence that methane levels for the

6D Section were different on any of the three shifts, and given the fact that the miners on all three
shifts were presumably deenergizing their equipment when the methane warning light came on,
our review of the record compels the conclusion that Zecco failed to demonstrate that his low
productivity was inextricably linked to his protected refusal to operate equipment when the

   7
    We note that Poland agreed that if the warning light came on, Zecco was to stop the

miner. Poland Tr. 125-27.

                                     21 FMSHRC 992

methane levels exceeded 1 percent.

           2.      Additional Safety Measures

   Zecco also contends that the conditions in 6D necessitated his taking additional safety

precautions and that these measures adversely affected production on the midnight shift. Tr. 32­
37, 72-73, 120. These safety measures included: testing for methane with a hand held monitor
every 10 minutes rather than every 20 minutes as required by MSHA, doing frequent ventilation
tubing checks, hanging additional ventilation curtains to improve air at the face, stopping to rock
dust every 20 feet rather than every 40 feet as required by MSHA standards, and washing down
the continuous miner to minimize float coal dust. 20 FMSHRC at 498; Tr. 35-37, 599.

    The question of whether these actions constitute protected activity is complicated by the

fact that some of these additional safety measures involved precautions that were beyond the
requirements of MSHA’s regulations. For example, Zecco and his crew tested for methane and
stopped to rock dust more frequently than required under MSHA standards. We recognize that at
some point there is a line beyond which additional precautions over and above the regulations
cease to be protected. Just where this line is drawn depends on the particular facts and
circumstances of each case. The general principle, however, is that extra precautions should be
protected when, like a protected work refusal, they are based on a miner’s “good faith, reasonable
belief” that such precautions are needed, and when the precautions themselves are reasonable.
Cf. Robinette, 3 FMSHRC at 812 (enunciating the Commission’s work refusal standard).

    It would appear that the precautions taken by Zecco and his crew were conceded by

Consol to be reasonable in light of the extremely hazardous conditions present in 6D. Zecco
does not allege that Consol ever instructed him to cease taking these precautions. Indeed, as the
judge observed, “management was well aware of the sulfur and methane problems on the 6D
Section causing a recognized slowdown of production.” 20 FMSHRC at 505. The judge also
noted that “neither Zecco’s foreman Albert Titus, who he called as his own witness, nor Zecco
himself, ever testified that anyone ever suggested they mine unsafely or with the warning light
activated.” Id. Accordingly, we treat these activities as protected.

     Even if these precautions are deemed protected, however, Zecco has failed to submit

evidence from which one could conclude that these precautions were inextricably linked to his
shift’s relatively lower productivity. As is the case with his protected shutdowns, discussed
above, Zecco does not allege that his coworkers on the other shifts in 6D were failing to take
similar additional precautions over and above what might be required by MSHA’s regulations.

   Consol’s witnesses attributed the lower production levels on the midnight shift to poor

management by the section foreman. Id. at 502; Tr. 860-61. One witness explained that Poland
“thought the midnight crew could bring its productivity up to the level of the other shifts on the
6D Section by such things as staggering lunch breaks and not permitting the crew to stay in the
dinner hole too long.” 20 FMSHRC at 505. Zecco’s witness, mechanic Michael Smith,

                                    21 FMSHRC 993

confirmed this and “noted the efforts by Zecco’s foreman to increase productivity took such
forms as prompting the crew to get to the dinner hole earlier.” Id. In sum, we find that the judge
was correct in finding that no inference of an illegal motive could be drawn in the face of the
reduced productivity, which constituted a legitimate business motivation.

                                           III.

                                       Conclusion

   For the foregoing reasons, we affirm the judge in result.




                                         Mary Lu Jordan, Chairman




                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                    21 FMSHRC 994

Commissioner Marks, dissenting:

   I would vacate the judge’s determination that Consol did not discriminate against Zecco

and remand so that the judge, who is the proper fact-finder, can apply the analytical framework
announced by the Commission in its opinion. Therefore, I dissent.

     While I agree with the Commission that “productivity loses its status as an objective

business rationale if it is inextricably linked with protected activity” (slip op. at 7), and that
Zecco’s shutdown of the continuous miner and additional safety precautions were protected
activities under the Mine Act (slip op. at 7-10), I strongly believe that the judge should have the
first opportunity to pass on whether Zecco’s protected activities diminished his productivity such
that his productivity could not be used as a legitimate affirmative defense by Consol. The judge
never even considered the Secretary’s contention that Zecco’s refusals to operate the continuous
miner in unsafe conditions and the additional safety measures he performed constituted protected
activity. 20 FMSHRC 497, 498 n.2. Here, the majority properly determines that the contention
should have been considered, but instead of remanding for the judge to apply the analysis to the
record, the majority improperly performs the analysis itself.

    What makes the majority’s error even more untenable is that the majority relies on slim

record support to incorrectly conclude that Zecco’s protected activity was not tied to his lower
productivity. See Secretary of Labor on behalf of Glover v. Consolidation Coal Co., 19
FMSHRC 1529, 1535-36 (Sept. 1997) (noting that a finding of discrimination should be made
whenever protected activities contribute “in any manner” to adverse action). For example, the
majority makes assumptions about the other shifts, such as “the miners on all three shifts were
presumably deenergizing their equipment when the methane warning light came on” (slip op. at
8-9). This is pure imagination on the majority’s part. The judge simply did not make this
finding. The majority also overlooks evidence that supports Zecco’s contention that he was a
highly productive miner prior to encountering the very dangerous conditions on the 6D section
midnight shift. Tr. 342, 413-14. The evidence should have been parsed by the judge, not the
Commission.

    For these reasons, I believe that the majority is wrong in affirming the judge and would