John Ervin Paugh v. Mettiki Coal Corporation
John Ervin Paugh v. Mettiki Coal Corporation (FMSHRC YORK 86-9-D): Discrimination complaint dismissed
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
John Ervin Paugh alleged that Mettiki Coal Corporation discharged him because he raised safety concerns about ventilation and roof-bolting procedures. Mettiki maintained that it discharged him for fighting with another miner underground. Judge George A. Koutras found that management reasonably believed Paugh had acted as the aggressor and that the discharge was based on that legitimate reason, not on protected safety activity. The discrimination complaint was dismissed and Paugh's request for relief and Mettiki's counterclaim for costs and attorney fees were denied.
Decision snapshot
- Governing provisions: 30 U.S.C. § 815(c)(1); 30 U.S.C. § 815(c)(2); 30 U.S.C. § 815(c)(3); 29 C.F.R. § 2700.1
- Outcome: The discrimination complaint was dismissed, the requested relief was denied, and the respondent's counterclaim for costs and attorney fees was denied.
- Key point: The Judge found the discharge was based on management's reasonable belief that Paugh had engaged in a fight, not on his protected safety activity.
Full text (FMSHRC public release)
CCASE:
JOHN PAUGH V. METTIKI COAL
DDATE:
19870429
TTEXT:
Page 2
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
JOHN ERVIN PAUGH, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. YORK 86-9-D
v. MSHA Case MORG CD 86-14
METTIKI COAL CORPORATION, CÄMine
RESPONDENT
DECISION
Appearances: W. Bryan Hall, Esq., Cumberland, Maryland,
for the Complainant; Thomas P. Gies and Susan
E. Chetlin, Esqs., Crowell & Moring, Washington,
D.C., for the Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a discrimination complaint filed by
the complainant John Ervin Paugh against the respondent pursuant
to section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et seq. Mr. Paugh filed his initial
complaint with MSHA on May 5, 1986. Following an investigation of
his complaint, MSHA determined that a violation of section 105(c)
had not occurred, and notified Mr. Paugh of this finding by
letter of June 27, 1986. Mr. Paugh then filed a timely complaint
with the Commission pro se, but subsequently retained counsel to
represent him.
Mr. Paugh alleges that the respondent harassed him because
of his concern for safety and because of his insistence on
following safe work procedures, particularly with respect to the
amount of air over his roof bolting machine and the spacing of
roof bolts. Mr. Paugh contends that his discharge on March 10,
1986, was in retaliation for his safety concerns and complaints.
The respondent filed a timely answer to the complaint, and
as an affirmative defense asserts that Mr. Paugh was discharged
for fighting underground with another miner. A
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hearing was held in Cumberland, Maryland, and the parties have
filed briefs and proposed findings and conclusions. I have
considered these arguments in the course of my adjudication of
this matter.
Issue
The critical issue in this case is whether Mr. Paugh's
discharge by the respondent was prompted in any way by his
engaging in protected activity, or whether it was the result of
fighting in violation of company policy as claimed by the
respondent. Additional issues raised by the parties are
identified and disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301 et seq
2. Sections 105(c)(1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 815(c)(1), (2) and
(3).
3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Complainant's Testimony and Evidence
Ronald W. Smith, confirmed that he worked as a temporary
roof bolter with Mr. Paugh and Mr. Beckman on foreman Randy
Johnson's section until October, 1985, when he was laid off. He
considered Mr. Paugh to be a good and fast roof bolter who was
safety conscious and insisted on "doing things by the book" (Tr.
29, 52). Mr. Smith stated that Mr. Paugh insisted on maintaining
the ventilation curtains to provide air over his roof-bolting
machine, that he was "real strict on air" and complained to Mr.
Johnson about the lack of air "at least once a day" (Tr. 29Ä32).
Mr. Smith confirmed that the scoop and feeder operators were
responsible for maintaining the ventilation curtains to insure
enough air on the section, and that air for the bolter was
provided by a fan and tubing which had to be moved as the bolting
cycle advanced. He estimated that the moving of the fan resulted
in approximately 20 to 25 minutes down time for the bolter (Tr.
34).
Mr. Smith confirmed that he attended safety classes every
Monday morning, and received instructions in roof and rib
control, ventilation, and methane detection procedures (Tr. 39).
When methane was detected, Mr. Johnson would
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instruct someone to tighten up the curtain or wash down the
methane detectors on the mining machines (Tr. 39). Mr. Smith
stated that he once complained to Mr. Johnson about "smoke from a
diesel scoop," and that in 1982, he operated a scoop in cuts
where the roof had not been bolted, sometimes on his own, and
sometimes at the direction of mine superintendent Paul Tenney
(Tr. 44Ä47). Mr. Smith also stated that Mr. Johnson instructed
him to clean up some coal spillage or debris in an unbolted roof
area, and that this was a "common practice to save time" (Tr.
48Ä51).
On cross-examination, Mr. Smith confirmed that when he had
occasion to go under unsupported roof with his scoop, it was
equipped with an overhead canopy which shielded him from any
falls, and that the roof bolters were equipped with temporary
roof support systems (TRS), which is considered to be equivalent
to a supported top (Tr. 54). Mr. Smith further confirmed that on
those occasions when Mr. Johnson asked him to work under
unsupported roof, he refused, and Mr. Johnson would do the work
himself (Tr. 59).
Mr. Smith conceded that he was aware of his right not to
work in an area where there may be an imminent danger, and that
he was aware of the respondent's "open door policy" to speak with
mine management if he were not satisfied with his foreman's
response to his safety concerns (Tr. 65). Mr. Smith confirmed
that he stopped operating the smoking diesel scoop until it was
repaired. However, when he complained to Mr. Johnson about the
smoke, and he too "grouched" about it, but did not have the scoop
repaired until 2Ämonths passed and another scoop was brought in
to the section (Tr. 69). He confirmed that the smoking scoop
conditions prevailed "somewhere in 1984" for about 2 months, but
after a new one was brought in, Mr. Johnson's section "was the
cleanest and best section in the mine" (Tr. 72). Mr. Smith
confirmed that he had no gripe against Mr. Johnson, and had no
complaints about his safety procedures (Tr. 74). He also
confirmed that Mr. Paugh was never disciplined because of his
frequent complaints about the air (Tr. 75).
In response to further questions, Mr. Smith stated that Mr.
Johnson was "quick tempered," that they sometimes argued over
safety matters, and one argument over a cable splice resulted in
Mr. Johnson's suspension for 2 weeks after Mr. Smith and another
miner complained to management (Tr. 77). They also argued about
the air, but Mr. Smith conceded that this was not entirely Mr.
Johnson's fault because "the headings and things like that wasn't
right" (Tr. 77). Mr. Smith explained that since Mr. Johnson was
the section boss, he was
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the recipient of the complaints, and that he sometimes took care
of the problems (Tr. 78). However, he could not recall any
instances when Mr. Johnson totally ignored or did absolutely
nothing about Mr. Paugh's safety complaints (Tr. 84).
Mr. Smith stated that Mr. Paugh and Mr. Johnson did not get
along and "grouched" at each other (Tr. 85). In Mr. Smith's
opinion, Mr. Paugh was right "90 percent" of the time with regard
to his safety complaints to Mr. Johnson, and he recalled an
incident in 1984, 2Äyears before Mr. Paugh's discharge, when Mr.
Paugh bolted for a shift without an operative TRS, and then
refused to continue bolting after arguing with Mr. Johnson (Tr.
88). On another occasion when Mr. Johnson and Mr. Smith would
knock down curtains with their machines, Mr. Paugh would put them
back up, and he and Mr. Johnson would argue over this (Tr.
89Ä91).
John Prinkey, rib bolter, confirmed that he has worked with
Mr. Paugh on Mr. Johnson's section, but was not working on March
5, 1986, because he was off with a back injury (Tr. 96). He
worked with Mr. Paugh and Mr. Beckman on the roof bolter, and Mr.
Paugh would shut the bolter down and refuse to bolt while the
ventilation fan was being advanced and there was no air over the
bolter. When Mr. Paugh advised Mr. Johnson that he would not bolt
without air, Mr. Johnson responded "well, you know, I can't force
you" (Tr. 98).
Mr. Prinkey stated that Mr. Beckman spent time "prying and
picking" down ribs which he believed were unsafe, and that this
slowed the bolting crew down to the point where Mr. Prinkey
complained to Mr. Johnson and to superintendent Steve Polce. Mr.
Paugh and Mr. Beckman also argued about the situation, and Mr.
Paugh told Mr. Johnson that Mr. Beckman was "goofing off" (Tr.
100). Mr. Prinkey and Mr. Paugh complained because they did not
like to work overtime, and if they did not work fast enough to
prepare the area for the next shift, they would have to stay to
finish the bolting.
Mr. Prinkey considered Mr. Paugh to be a good roof bolter,
and he knew of no instances where Mr. Paugh would put in extra
roof bolts just to slow down (Tr. 101). Mr. Prinkey stated that
Mr. Johnson never instructed his crew to bolt without air, but
there were times when the fan would be moved, without notifying
the crew, and this would result in an interruption to the air
(Tr. 102).
Mr. Prinkey stated that after Mr. Paugh's discharge, Mr.
Johnson stated that he "despised" Mr. Paugh (Tr. 103). Mr.
Prinkey confirmed that Mr. Paugh tried to follow all
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safety rules, but conceded that "a lot of times, he probably did
things wrong. I do things wrong" (Tr. 104).
On cross-examination, Mr. Prinkey explained the duties of
his roof bolting crew. He conceded that at times Mr. Beckman was
slowed down by water or when prying down a rib and numerous times
he taunted Mr. Beckman and made fun of him for being slow, and
they argued a lot over it (Tr. 106). Mr. Prinkey stated that no
one in management ever forced Mr. Paugh to work when there was no
air over the bolter (Tr. 106).
In response to further questions, Mr. Prinkey confirmed that
Mr. Paugh's reluctance to work with no air over the bolter
occurred during the interval when the fan was shut off and
advanced, and that Mr. Johnson was upset because Mr. Paugh would
not bolt without air (Tr. 110). However, Mr. Johnson never
insisted that Mr. Paugh continue to bolt with no air, but
generally griped about Mr. Paugh's unwillingness to do so (Tr.
110).
Mr. Prinkey stated that Mr. Beckman liked to work overtime,
and it was his opinion that most of the time Mr. Beckman would
"pick and pry" at the ribs deliberately to slow down the crew so
he could work overtime. This resulted in arguments between Mr.
Paugh, Mr. Prinkey, and Mr. Beckman (Tr. 111Ä112).
Jimmie K. Wolfe, confirmed that he had at one time worked
with Mr. Paugh on Mr. Johnson's section as a bolter, and was
aware of "discussions" between Mr. Paugh and Mr. Johnson over the
lack of air over the bolter while the ventilation fan was being
advanced. However, Mr. Wolfe was not aware that Mr. Johnson ever
ordered Mr. Paugh to continue bolting without air (Tr. 116).
Mr. Wolfe stated that sometime in 1984 or 1985 Mr. Paugh and
Mr. Johnson were involved in a dispute over a bolter which needed
repairs, and Mr. Johnson lost his temper and he and Mr. Paugh
exchanged heated words and foul language (Tr. 118). As a result
of that encounter, Mr. Paugh advised Mr. Johnson that he would
insist that he have air over his bolter, and that the
relationship between the two changed and "they was sort of pretty
much on edge with each other" (Tr. 120).
On cross-examination, Mr. Wolfe conceded that he was not
assigned with Mr. Paugh on Mr. Johnson's section when the March,
1986, suspension and discharge of Mr. Paugh occurred, and since
he was not on the section since the spring or summer
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of 1985, he had no opportunity to observe their relationship
during the period in question (Tr. 122).
Mr. Wolfe stated that while riding home from the mine with
Mr. Johnson after Mr. Paugh's discharge he stated to Mr. Johnson
that "You will never convince me that you people did not take
advantage of this to get rid of a guy that has caused you a
hassle because of safety," and that Mr. Johnson responded, "Well,
I will have to admit that it is a lot easier since he's gone"
(Tr. 130). Mr. Wolfe stated that when he worked as a bolter, he
continued to bolt while the fan was being moved, and did so
because of "pressure from supervisors." Mr. Wolfe was of the
opinion that anyone who inhibited production by complaining about
safety was considered a "bawl baby," "complainer" or
"troublemaker" (Tr. 131).
Mr. Wolfe stated that on those occasions when he was
requested to continue to bolt with no air while the fan was being
advanced, and refused, he was assigned to help move the fan. He
also confirmed that when he complained to his section foreman
about safety, his concerns "were taken care of more or less after
the horse got out of the barn" (Tr. 134). As an example, he cited
an instance when complaints were made about the remote control
devices on a continuous-mining machine, and although mine
management changed some parts in an attempt to find out why the
device was malfunctioning, the miner was not taken out of service
until after the miner operator Donnie Bray was injured when the
malfunctioning device resulted in his being pinned against the
rib and injured (Tr. 135Ä137).
Mr. Wolfe stated that he has been reassigned from one
section to another, and found this unusual because most transfers
involve the whole crew, and not just one individual. He conceded
that management has the right to make such reassignments, and
while he concluded that his transfer came about because he was "a
complainer, concerned about safety," he did not complain because
his reassignments placed him in a better working environment (Tr.
139).
Mr. Wolfe confirmed that he has been "a rank and file" miner
since June 1979, but that he served as a foreman on the midnight
construction shift for approximately 7Ämonths prior to that time,
and was taken off that job because management did not believe he
was getting the job done. He denied that he holds any grudges
against the respondent because of this, or because of the prior
miner lay-offs, and confirmed that the company treats him well.
However, when asked whether he "has an axe to grind" with the
company, he responded "I
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ground it a long time ago" (Tr. 141). When asked whether he held
his removal as a foreman against the company, he responded "I did
for a while, but it was the best thing that ever happened to me"
(Tr. 142). Mr. Wolfe also confirmed that even though he has been
safety conscious and has filed safety complaints over the past 7
years, he has not been disciplined and still has a job (Tr. 146).
Donald W. Bray, continuous-miner operator, confirmed that he
worked on Mr. Johnson's section with Mr. Paugh and Mr. Beckman.
Mr. Bray confirmed that he was injured during the summer of 1985
when he was pinned against a rib when the miner remote control
device malfunctioned. He also confirmed that he had experienced
problems with tramming the machine and the remote control device
prior to the incident, reported it to the head mechanic Tom
Scott, and that Mr. Scott "did the best he could" in
troubleshooting the problems and in his attempts to repair the
devices. He considers Mr. Scott to be a good mechanic, and did
not believe that he ignored his complaints, and that he attempted
to find the problem and make the necessary repairs (Tr. 156).
Mr. Bray confirmed that the problems with the machine
occurred over an extended period of time, but they "would come
and go," and he believed the problems were being addressed, and
that Mr. Scott was making an effort to find the problem. Once the
accident occurred, the machine was immediately removed from
service, dismantled, and thoroughly checked out (Tr. 164). Mr.
Scott subsequently advised him that a short had been found in the
machine boom wiring (Tr. 159).
Mr. Bray stated that he had no complaints about Mr. Johnson
as a foreman, and considered him to be "fairly conscious safety
wise." He confirmed that Mr. Johnson has never ordered or asked
him to do anything that was unsafe, and stated "I don't think he
would do that" (Tr. 157). He further stated that "sometimes maybe
I've done stuff on my own that might not have been unsafe" but he
never really told me, you know, to really put myself in danger or
something like that" (Tr. 157).
Complainant's counsel proffered the testimony of Blaine
Fike, and stated that if called to testify, Mr. Fike would
testify that he was working on Mr. Johnson's section on March 5,
1986, and would confirm that Mr. Paugh would stop the bolter when
there was no air while the fan was stopped and being moved, and
that Mr. Johnson was suspended because of the faulty cable repair
incident. Counsel also proffered
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the testimony of Terry Lucas, who was likewise working on Mr.
Johnson's section on March 5, 1986. Mr. Lucas would testify that
Mr. Paugh "made complaints about or said he would not work
without air" (Tr. 165).
Respondent's Testimony and Evidence
Terry W. Lucas, testified that in 1980 he was working as a
laborer on the same shift with Mr. Paugh and Mr. Harry Beckman.
Mr. Lucas stated that while in the process of moving a cable, he
and Mr. Paugh got into a dispute which resulted in a fight
between them. He stated that Mr. Paugh hit him, and that he held
Mr. Paugh down on the ground. Mr. Lucas stated that he "told John
to behave, calm down . . . and after that, everything was all
right." Mr. Lucas confirmed that he and Mr. Paugh were rolling
around on the ground, and that Mr. Beckman had to separate them.
The incident was never reported to the foreman, and Mr. Lucas
never discussed it with him. Mr. Lucas further confirmed that he
was aware of the company rule on fighting, and that it is an
offense for which one may be fired (Tr. 178Ä179). Since that
time, he has had no further disagreements with Mr. Paugh, and has
since worked with him many times (Tr. 186).
Mr. Lucas confirmed that he was present during the shift
when the incident of March 5, 1986, between Mr. Paugh and Mr.
Beckman occurred, but that he did not personally observe what
occurred. He found out about it when he learned that foreman
Randy Johnson had taken them out of the mine. He asked Mr.
Johnson what had happened, and Mr. Johnson replied "It's went too
far this time. I've got to take them outside." When Mr. Lucas
tried to talk Mr. Johnson out of taking them outside, Mr. Johnson
replied "No, I've got to do my job. I've got to take them
outside" (Tr. 187).
Mr. Lucas stated that after Mr. Johnson took Mr. Paugh and
Mr. Beckman outside, he asked roof bolter Earl Sisler about the
incident, and that Mr. Sisler told him that while he did not
observe Mr. Paugh "go across the bolter," he heard "the ruckus,"
looked up alongside the bolter, and observed that Mr. Beckman had
Mr. Paugh up against the rib "slugging him" (Tr. 187). Mr. Lucas
reiterated that he did not personally observe the incident, and
simply stated what Mr. Sisler told him about the incident (Tr.
187Ä189).
Complainant John Paugh was called as an adverse witness by
the respondent. Mr. Paugh confirmed that general mine foreman
Steve Polce telephoned him on March 10, 1986, and informed him
that he was fired for fighting. Mr. Paugh also
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confirmed that he was aware of the company rule prohibiting
fighting, and that if he engaged in fighting, it would be a
reason for discharging him (Tr. 191).
Mr. Paugh confirmed that he does not like to work overtime,
and that he began work on a new section of the mine on the Monday
before his discharge. He also confirmed that he lives 32 miles
from the mine, and prior to this time he had been car pooling
"off and on," and that Mr. Polce informed him that in view of the
fact that he might have to stay and work overtime if his roof
bolting crew did not keep within two and one-half cuts ahead of
the continuous miner, that he was to drive his own car to work
(Tr. 192). Mr. Paugh stated that Mr. Polce's instructions was
nothing new to him because he drove himself to work many times,
and that he understood Mr. Polce to mean that he should not have
to depend on a car pool if he had to work overtime (Tr. 193).
Mr. Paugh denied that he ever made any statements to Mr.
Sisler about having to buy extra gasoline because of the
necessity of driving his own car to work, but admitted that he
told Mr. Sisler that "I wasn't crazy about working overtime" (Tr.
195). Mr. Paugh also denied telling Mr. Sisler that if he were
required to work overtime he would make sure that he got more
overtime (Tr. 195).
Mr. Paugh confirmed that he received a 40Ähour safety
training course when he was first hired, and that he participated
in periodic safety meetings held every Monday morning before work
(Tr. 195). He also confirmed that he was aware of his rights
under the Act, and understood that he was not required to work
under any unsafe conditions, and that there were several
occasions when he turned off his roof-bolting machine as
necessary, and did not work when he believed there was
insufficient ventilation. On these occasions, while he did not
continue to bolt, he performed other work.
Mr. Paugh stated that he refused to continue bolting a dozen
times during the 2 or 3Äyears prior to his discharge, and that he
worked on the bolting machine about 90 percent of the time during
this period. His refusal to continue bolting was limited to those
occasions when he did not believe that the ventilation over his
bolting machine was adequate. Although he believed that the lack
of ventilation was "always serious," he confirmed that with the
exception of the dozen occurrences when he refused to operate the
bolter, the ventilation was not such a serious problem as to
cause him to discontinue bolting (Tr. 198).
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Mr. Paugh confirmed that he operated a roof bolter for 6 years,
and that he was aware of the respondent's "open door" policy, and
that if he had any problem with his foreman, he could talk to
someone else in management (Tr. 198). He confirmed that as part
of his safety training, he was told that the company wanted him
to always be careful and look out for safety, and that as an
underground miner, the company was concerned about his safety
(Tr. 199).
Mr. Paugh confirmed that he was an experienced roof bolter,
and he stated that under good conditions he was able to complete
five cuts of coal a day during his bolting cycle, installing
approximately four to six rows of bolts in each cut, with four
bolts in each row, and that this is usually considered to be a
good day's work (Tr. 199Ä200).
Mr. Paugh stated that he has complained about the lack of
ventilation over his bolter, and has discussed the matter with
general mine foreman Polce several times, and with superintendent
Tenney a couple of times. He stated that over a period of 18
months, he discussed this with Mr. Polce three or four times in
his office, and six or seven times underground (Tr. 202). On one
occasion after speaking with Mr. Polce, Mr. Polce informed him
that there were problems with the air, and said "If you can get
it, get it, and if you can't, you can't." Mr. Paugh stated that
he then "got the best air I could, . . . and later on, the air
was down, and I complained to him again" (Tr. 201). Mr. Polce
also told him that "we was having trouble getting enough air on
the section" and that "it was hard to get enough air to the face.
But it could be done" (Tr. 202).
Mr. Paugh stated that Mr. Polce told him that he wanted him
to continue bolting even if he (Paugh) believed there was
inadequate ventilation. Mr. Paugh stated that this occurred
underground approximately a month before he was discharged. Mr.
Paugh explained that on one occasion when the fan was down, he
shut the bolter off, and proceeded to determine why the fan was
down. Mr. Polce was there and advised him to keep bolting and
that there was "plenty of air." Mr. Paugh stated that "I told him
there couldn't be enough air there if the fan wasn't running."
Mr. Polce took out his anemometer, and held it up, and Mr. Paugh
stated that "it just barely turned." Mr. Polce then said "Yeah,
there's plenty of air, get to bolting." However, the fan came
back on, and Mr. Paugh started bolting again (Tr. 204).
Mr. Paugh stated that on occasions when the ventilation
curtain was down in the roadways where the buggies and ram
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cars operated, air was cut off from the face or the bolter, and
Mr. Polce expected him to continue to bolt. Mr. Polce stated to
him "Bolt, or you're going to be taken off the bolter or find
another job," and Mr. Paugh informed Mr. Polce that he would not
bolt without air. Mr. Paugh explained further that he and Mr.
Polce would continue the argument, but that he did not bolt
without air, and eventually Mr. Polce "would get around to
getting the air" (Tr. 205).
Mr. Paugh stated that on another occasion in 1984 or 1985,
after complaining to Mr. Polce, he was taken off Mr. Johnson's
section for 7 months "to keep me and Randy Johnson apart" (Tr.
207). Mr. Paugh stated that when he complained to Mr. Johnson
about the ventilation, "he would get in an uproar about it" (Tr.
208).
Mr. Paugh conceded that he had never been disciplined prior
to his discharge, and he confirmed that he worked for Mr. Johnson
for 3 to 4 years "off and on," and their relationship was not
good for 2 years. Mr. Paugh stated that while Mr. Johnson never
disciplined him during this time, he made him "do extra things,"
and because of his complaints, tried to limit his lunch hours to
10 to 15 minutes, rather than the usual half-hour. Mr. Paugh
conceded that lunch hours may be shorter if work was required,
and he also conceded that the "extra work" entailed other work
assignments by Mr. Johnson when the roof bolter was down (Tr.
210). Mr. Paugh also conceded that other crew members were
sometimes given other things to do. He also stated that Mr.
Johnson would assign him to stack tubing, advance curtain, rock
dust, and shovel the feeder while the bolter was down, while the
other two crew members "were standing there watching the mechanic
fix it." He asserted that this happened 8 to 12 times during the
last year. He also conceded that at times when he and Mr. Prinkey
were ahead of Mr. Beckman in their work, they would sit and drink
coffee waiting for him to catch up, if there was nothing else to
do (Tr. 212).
With regard to the altercation with Mr. Lucas in 1980, Mr.
Paugh denied that he threw a punch at Mr. Lucas, but that "we
wrestled." Mr. Paugh described the incident as "horseplay," and
stated that he had forgotten the incident and could supply no
details (Tr. 215). Mr. Paugh conceded that he failed to include
in his complaint to MSHA that he was fired for fighting, and he
did so "because I didn't think it would have anything to do with
it" (Tr. 222). He conceded that Mr. Polce told him that he was
being fired for fighting underground, but supplied him with no
details. Mr. Paugh also stated that when Mr. Johnson took him out
of the mine on
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March 5, he gave him no explanation or reason for doing so other
than "he was just tired of the things that's being going on. He
took us outside to discuss it" (Tr. 224). After Mr. Polce called
him to inform him of his discharge, Mr. Paugh called Mr. Gearhart
and advised him that he put his hand on Mr. Beckman's shoulder
(Tr. 226). Mr. Paugh conceded that he said nothing to Mr.
Gearhart about being fired for making any safety complaints (Tr.
228).
Mr. Paugh denied that Mr. Beckman had him against the rib
"pounding" on him, and the only explanation he could give with
regard to Mr. Sisler's testimony in this regard was that Mr.
Beckman "knocked me against the rib when he went out past me"
(Tr. 225). Mr. Paugh explained that he went around to Mr.
Beckman's side of the bolter, and placed his hand on Mr.
Beckman's shoulder to talk to him about the spacing of the roof
bolts, and that Mr. Beckman "tore out past me and knocked me up
against the rib" (Tr. 225).
Mr. Paugh further explained his encounter with Mr. Beckman
as follows (Tr. 234Ä236):
Q. In fact, you were in a hurry to go over and talk to
Mr. Beckman; weren't you? Because right after Randy had
leftÄit was right after Randy had told you to go back
to work; wasn't it?
A. Yes.
Q. And it was right after you said to Mr. Beckman, "I'm
going to get you, you son of a bitch"; wasn't it?
A. I don't recall.
Q. What do you recall saying, Mr. Paugh, at that point?
A. I think I called Harry a cry baby at that point.
Q. And you don't think you called him a cry baby, son
of a bitch?
A. I don't remember.
Q. You might have; right?
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~841
A. That's possible.
Q. All right. Now, then, Mr. Sisler was at the back of
the machine; was he not?
A. Yes, he was.
Q. And isn't it a fact that you walked right by Mr.
Sisler on your way to get to Harry Beckman?
A. Yes.
Q. And isn't it a fact that, as you walked by Mr.
Sisler, you said something like, "Harry is a cry baby?"
"Harry is crazy?"
A. Yes; probably did.
Mr. Paugh confirmed that immediately prior to his encounter
with Mr. Beckman, he and Mr. Johnson discussed the spacing of the
roof bolts, and that he told Mr. Johnson "You cover your ass;
I'll cover mine" (Tr. 255). Mr. Paugh confirmed that he and Mr.
Johnson were angry, and that Mr. Johnson told him to put the
bolts in "skin to skin," and to "Put as many as you want up, as
long as you are safe" (Tr. 246Ä247). Mr. Paugh denied that he was
upset with Mr. Beckman about "ratting on him" to Mr. Johnson, but
admitted that he stated to Mr. Johnson "what's the problem? Is
this cry baby complaining about me" (Tr. 237). Mr. Paugh denied
that he pushed Mr. Beckman, and stated that he touched him hard
enough so that he knew someone was behind him, and that he did so
to get his attention over the noise of the machine (Tr. 244). Mr.
Paugh stated further that he went over to Mr. Beckman's side of
the machine simply to have "a business conversation" with him,
and he confirmed that in a prior statement to MSHA he stated that
he wanted to discuss the spacing of the bolts with Mr. Beckman
(Tr. 250).
Mr. Paugh stated that after the incident with Mr. Beckman,
Mr. Johnson and Mr. Beckman returned to the area where he had
resumed working, and that Mr. Johnson asked him "what's going
on." Mr. Johnson also asked Mr. Beckman whether he had told him
the truth, and Mr. Paugh denied that Mr. Johnson asked him
whether he had hit Mr. Beckman, but admitted that it was possible
he told Mr. Johnson that he placed his hand on Mr. Beckman (Tr.
252Ä253).
Page 15
~842
Mr. Paugh denied that he and Mr. Prinkey had ever taunted or made
fun of Mr. Beckman in the past, and denied that they ever threw
grease over the machine at him while having coffee while Mr.
Beckman was working (Tr. 256Ä257). Mr. Paugh confirmed that the
day before he was suspended, his bolting crew had to stay and
work overtime because they were not caught up with the
continuous-mining machine (Tr. 257).
Mr. Paugh testified as to his efforts to obtain employment
since his discharge, and he also testified as to the incident
concerning the broken down roof bolter. He denied that Mr.
Johnson had asked him to tell the mechanic to fix the machine,
and stated that Mr. Johnson asked him to tell Mr. Wolfe to tell
the mechanic to fix it (Tr. 259Ä265).
On cross-examination, Mr. Paugh conceded that management's
"open door policy" was a good one, but "sometimes it never
worked." He stated that "I've seen guys go out to higher
authorities before and complain, and come back to the mine site,
and they would get transferred off of the section or put on dead
work" (Tr. 266Ä267). He explained the roof bolting sequence he
was following on March 5, 1986, confirmed that he argued with Mr.
Beckman over the roof bolting pattern on that day, and stated
that he went around the machine to speak with Mr. Beckman about
it (Tr. 269).
In response to further questions, Mr. Paugh confirmed that
he and Mr. Johnson had been at odds with each other "off and on"
from 1984 until he was discharged, and that their arguments
concerned the lack of air over the bolter and short dinner
breaks, and that his complaints to Mr. Polce about Mr. Johnson
resulted in Mr. Polce's transferring him to another section (Tr.
270, 272). Mr. Paugh denied any prior altercations with Mr.
Johnson, except for disagreements and misunderstandings, and it
was his impression that Mr. Johnson's work assignments were
deliberately made to punish his bolting crew, and this is why Mr.
Polce took him off the crew the first time (Tr. 274). Mr. Paugh
confirmed that he and Mr. Johnson had exchanged strong words more
than once, and when asked whether or not Mr. Johnson ever invited
him to hit him, Mr. Paugh responded. "He could have. He's a
pretty good instigator" (Tr. 274). Mr. Paugh denied that he
"despised" Mr. Johnson, but he believes that Mr. Johnson "had a
big part to do" with his discharge because he complained to the
mine foreman and superintendent about him several times (Tr.
277).
Harry L. Beckman, roof bolter, confirmed that on Wednesday,
March 5, 1986, he was working on a crew with
Page 16
~843
Mr. Paugh and Mr. Earl Sisler, and that Mr. Johnson was their
foreman. He recalled a meeting held on Monday, March 3, when work
in the new section began, and confirmed that mine foreman Polce
told the crew that they would have to drive their own cars to
work and would have to stay and work overtime if they were more
than 2 1/2 cuts behind the continuous miner. Mr. Beckman stated
that Mr. Paugh later commented to him that he wanted more than an
hour of overtime (Tr. 280).
Mr. Beckman confirmed that he had worked with Mr. Paugh
since October, 1985, up to the time of his discharge, and he
confirmed that Mr. Paugh drilled faster than he did and that he
had trouble keeping up with him at times (Tr. 282Ä283). Mr.
Beckman stated that on one occasion when he was behind, Mr. Paugh
and Mr. Prinkey threw grease at him while he was working, but
they stopped after it hit him in the face and he warned them that
he would leave the mine if the grease hit him in the eye (Tr.
283).
Mr. Beckman confirmed that Mr. Paugh was a fast worker "when
he wanted to be," and he explained the roof bolting procedures
and Mr. Paugh's work (Tr. 285Ä287). Mr. Beckman stated that
during the week in question, Mr. Paugh was "holding him up" and
was "standing around and talking" rather than installing test
holes. Mr. Beckman stated that Mr. Paugh told him that since he
had to drive to work himself, "he wanted to fool around and get
the overtime." Mr. Beckman complained to Mr. Polce and told him
what Mr. Paugh had said, and Mr. Polce advised him that "he would
keep an eye on us" (Tr. 288). Mr. Beckman stated that the crew
had to stay and work an hour overtime on Tuesday, March 4, and
that he told Mr. Johnson about it on Wednesday, March 5. He
testified further as to the subsequent sequence of events (Tr.
292Ä295):
And then, Randy came up and I saysÄhe said we was
getting behind. I said, "Yeah, I know. John's over
there fooling around." I said, "Now he's putting three
(3) pins in where he only needs two (2)." And I said,
"He's going to end up making us have to stay again
today."
So, then, Randy went over and talked to him or
something, and he shut the bolter off and said he would
measure them, and then JohnÄwhen he went up there, John
said, "What's the problem? Who's holding me up; who's
holding me up now?" And started hollering.
Page 17
~844
And he says, "Is he the problem over there, that cry baby, son of
a bitch?"
Q. Who was he referring to when he said that?
A. To me.
Q. All right.
A. And Randy saidÄafter he measured it and stuff, Randy
said, "You guys do whatever you think is safe. I don't
care how many bolts you put in to make it safe, but get
back to work." And he said, "You guys think you can
work together?"
**********
A. Well, then, Randy left, and I started the bolter up,
and then I went back to the controls, and John said
something aboutÄit sounded to me like, over the
noiseÄlike, "I'll get you, you son of a bitch," or
something like that.
Q. Did you say anything back to him?
A. No. I just went, "Yeah," or something like that
(indicating). I just started letting the TRS down and
started tramming the bolter up, and then John came over
and pushedÄ
Q. Let me stop you there. When he said, "I'm going to
get you, you son of a bitch," where was he? Was he over
on his side of the machine?
A. Yeah. He was up at his. He was just starting.
Q. I think your testimony was that you started to move
the TRS.
A. Yes.
Q. Then, what happened after that?
Page 18
~845
A. Well, I was getting readyÄI was starting to tram the bolter,
and the next thing I knew, he said "You cry baby, son of a
bitch," and hit me in the back and pushed me into the bolter and
knocked my hat off. And I turned around, and I pushed him back
like this (indicating), and the ribs ain't that wide
(indicating), and I turned around real quick, and he started to
lift his arms, and I grabbed his arms, because I thought he might
be trying to hit me or something.
I just grabbed his arms and moved him aside, and I said
"Get out." I said, "Get out of here," or something, and
moved him to the side, and I went and got Randy
Johnson.
Q. Okay. Did Mr. Paugh say anything to you as you were
leaving to get Mr. Johnson?
A. No. I just took off.
Q. When did your hard hat fall off?
A. When he pushed me into the bolter.
Q. What part of your body hit the bolter?
A. It would have been my chest.
Mr. Beckman stated that he found Mr. Johnson within 5
minutes, and "I told him that John pushed me into the bolter,
come over there and pushed me into the bolter; knocked my hat
off." Mr. Johnson then proceeded with him to the bolter, shut it
off, and told him and Mr. Paugh "I'm taking you outside. I can't
put up with this stuff underground" (Tr. 296). Mr. Beckman stated
that later, while he and Mr. Paugh were in the shower room, Mr.
Paugh said to him "You had better tell no lies, or they will fire
us both" (Tr. 297). Mr. Johnson later informed them that he had
called Mr. Polce and informed them that they were both suspended
pending an investigation and that he would escort them off the
property (Tr. 297). Mr. Beckman confirmed that he and Mr. Paugh
left the mine in their vehicles, and that Mr. Johnson followed
them both off the mine property in his own vehicle (Tr. 298).
Mr. Beckman confirmed that after he was suspended, he was
directed to appear at the mine on Friday, March 7, and he
Page 19
~846
met that day with management representatives Mr. Gearhart, Mr.
Polce, Mr. Tenney, and Mr. Bill Pritt. Mr. Beckman stated that
after telling them what had occurred, he was told to go back to
work that same day, and he did (Tr. 299).
Mr. Beckman confirmed that Mr. Paugh was in a fight with Mr.
Terry Lucas in 1980, and he explained that while moving a belt,
they exchanged words and Mr. Paugh jumped on Mr. Lucas and threw
him to the ground, and they wrestled around until someone broke
it up and told them to "straighten up or you're going to get
fired." Nothing further was said about the incident, and it was
not reported to the foreman because they would have been fired
(Tr. 300).
Mr. Beckman confirmed that he has never been harassed by Mr.
Johnson, that Mr. Paugh has never complained to him about being
harassed by Mr. Johnson, and he could not recall Mr. Paugh
raising any safety complaints during any of the Monday safety
meetings (Tr. 301).
On cross-examination, Mr. Beckman confirmed that Mr. Sisler
was filling in for Mr. Prinkey on the crew during the week in
question, and he explained the work procedures and confirmed that
for the 3 days during the week in question, Mr. Paugh seemed to
be working slower than him (Tr. 301Ä306). He also explained the
procedure for "spotting" and checking the bolting pattern, and
confirmed that he wasn't too happy with the manner in which Mr.
Paugh was helping him on the day in question (Tr. 308, 309Ä312).
Mr. Beckman confirmed that he complained a lot to Mr.
Johnson and Mr. Polce about Mr. Paugh (Tr. 314). Mr. Beckman
confirmed that he told Mr. Johnson that Mr. Paugh had pushed him
against the bolter, but that he could have said that a "big hit
on the back pushed me in" (Tr. 316). He also confirmed that he
told the management team at the Friday meeting that Mr. Paugh
"either hit me or pushed me in the back or something and knocked
me into the bolter" (Tr. 318). Mr. Beckman confirmed that Mr.
Paugh did not "strike him" and that they did not exchange blows.
When asked whether they were in "a fight," he responded "No. I
turned around and grabbed his hands because I didn't know if he
was going to or not. I just grabbed his hands to try and protect
myself" (Tr. 323).
Mr. Beckman stated that after he was suspended, Mr. Prinkey
and other miners told him that he too would end up being fired,
and that they harassed him because "I went and told on him for
pushing me into the bolter." He stated
Page 20
~847
further that the other miners "thought I ought to try to handle
it underground and just left it go, . . . and a lot of them was
. . . angry about it, and they gave me a rough time over it"
(Tr. 320Ä321). As a result of this, he spoke with Mr. Gearhart a
week or so later about it, and Mr. Gearhart stated to his
(Beckman's) wife that "they can tell us who to hire, but they
can't tell us who to fire," and that Mr. Beckman then told Mr.
Prinkey about Mr. Gearhart's comment (Tr. 322).
Earl R. Sisler, confirmed that on March 5, 1986, he was
working as a rib bolter installing rib boards on the same crew
with Mr. Paugh and Mr. Beckman. Mr. Sisler confirmed that Mr.
Polce advised the crew at the start of work on the new section
that they would have to drive their own cars to work if they had
to work overtime. Mr. Sisler said that Mr. Paugh stated to him on
Monday or Tuesday evening of the week in question that "if he had
to drive the car by himself, that he would work the overtime to
get gas money" (Tr. 329Ä330). Mr. Sisler confirmed that the crew
had to work overtime on Tuesday, March 4, because "things slowed
down," but he did not complain to Mr. Johnson (Tr. 332). He
confirmed that a few times, Mr. Beckman had his bolting work
done, and the crew had to wait for Mr. Paugh to finish his
bolting (Tr. 331). Mr. Sisler confirmed that Mr. Beckman
complained to Mr. Johnson about Mr. Paugh's bolting, and he
observed the three of them in a conversation on the day in
question, but he could not hear what was said. After Mr. Johnson
left the area, Mr. Paugh came around to Mr. Beckman's side of the
machine, past Mr. Sisler at a pace "more than normal," and
commented to him that "Harry's a damn cry baby" (Tr. 335). Mr.
Sisler further explained (Tr. 335Ä336):
JUDGE KOUTRAS: But when Mr. Paugh came around the back
of the machine and made the comment to you about Harry
being a cry baby, what was his demeanor? I mean, was he
angry; was he mad? Was he running towards Mr.Ä
THE WITNESS: He was upset.
JUDGE KOUTRAS: He was upset. What made you believe he
was upset?
THE WITNESS: Well, just prior to that, when they were
up at the front of the bolter, the talkingÄlike I say,
you could look up there
Page 21
~848
and seeÄlike John was talking back to the boss.
Mr. Sisler stated that he saw no punches thrown, and that he
could only see Mr. Paugh and Mr. Beckman from the waist up over
the machine, and that there was approximately 3 feet between the
machine and the rib. Mr. Sisler confirmed that he did not see Mr.
Paugh push Mr. Beckman, and when asked to account for Mr.
Beckman's hat flying off, Mr. Sisler responded "he had to be
pushed into the controls or Harry flinched." Mr. Sisler did not
see Mr. Beckman go against the machine, and stated "all I saw was
his hat came off, and then Harry turned and tried to secure
John's arms," and he saw that Mr. Beckman had Mr. Paugh by the
wrists against the rib (Tr. 337Ä341).
Mr. Sisler believed that Mr. Paugh had no reason to go to
Mr. Beckman's side of the machine, and that if he wished to speak
with him over the noise, he could have shut the machine off, or
talked across the machine (Tr. 343). Mr. Sisler confirmed that he
made no attempt to stop Mr. Paugh as he proceeded by him, because
he didn't want to get involved, and he stated that "there was an
indication . . . that something was going to happen" (Tr. 344).
Mr. Johnson returned with Mr. Beckman within 3 or 4 minutes, and
took them both out of the section (Tr. 345).
Mr. Sisler confirmed that he had worked for Mr. Johnson
about 3 months, and had no safety complaints about him. He never
previously observed Mr. Johnson harass Mr. Paugh, nor had he
observed them arguing or exchanging words (Tr. 346). Mr. Sisler
confirmed that he was interviewed by Mr. Gearhart, Mr. Polce, and
Mr. Pritt about the incident in question, and told them his
version of the event as testified to during the instant hearing
(Tr. 349).
On cross-examination, Mr. Sisler explained the work
performed during the period in question, and confirmed that the
crew worked an hour overtime on Tuesday because they were behind
and within one row of bolts of finishing the cut. He also
explained the measuring of the cuts, and the bolting sequence
which was followed (Tr. 353Ä359).
with Mr. Terry Lucas over the fighting incident because he did
not believe it was any of his business, Mr. Lucas "might have
mentioned it." When Mr. Lucas asked him whether any punches had
been thrown, Mr. Sisler said "I just said yeah, because I didn't,
you know, want to get involved."
Page 22
~849
Mr. Sisler confirmed that he did not actually see Mr. Beckman
punching Mr. Paugh (Tr. 361). When asked why Mr. Lucas would
testify that he did make such a statement, Mr. Sisler said "He
probably really thought I meant it; . . . There was nothing to
it. It was just more or less a joke, you know. I didn't want to
get involved in it. I didn't want to say nothing in the respect
that it would get anybody else in trouble" (Tr. 363).
When asked what he meant by the term "flinched," Mr. Sisler
explained as follows (Tr. 364):
A. Well, if you get your back to someone and somebody
comes up on you that you don't know is about
(indicating), it would scare you, you know. It's out of
the blue, you know; you're not ready for it.
Q. Are you saying you saw Mr. Beckman move and his hat
fly of, and then you saw him turn around?
A. True.
Q. And then, you saw him get Mr. Paugh's arms?
A. True.
Section Foreman Carl Randall Johnson confirmed that he was
suspended 2 or 3 years ago without pay for a week for making a
temporary splice on a shuttle car cable, and for allowing men to
roof bolt without a TRS system on the bolter (Tr. 6). Mr. Johnson
confirmed that he was the section foreman on March 5, 1986, and
that Mr. Paugh and Mr. Beckman were the roof bolters, and Mr.
Sisler was the rib bolter. The crew was advised by mine foreman
Steve Polce on Monday, March 3, that they would have to drive
their own cars to work if they were behind more than 2 1/2 cuts
in their work and had to stay and work overtime (Tr. 9). Mr.
Johnson confirmed that the crew worked 1 hour overtime on
Tuesday, March 2, because it got behind (Tr. 10). Mr. Beckman
told him that overtime resulted from Mr. Paugh's "dragging his
feet," and Mr. Johnson took this to mean that Mr. Paugh was
slowing up in putting in roof bolts (Tr. 12).
Mr. Johnson stated that on Wednesday, March 5, Mr. Polce
told him that Mr. Beckman had complained to him about Mr. Paugh's
"foot dragging," and instructed him to "keep an
Page 23
~850
eye on the bolters." Mr. Johnson went underground to tell Mr.
Paugh that he was going to move the fan, and while he was there
Mr. Beckman informed him that Mr. Paugh was putting in too many
bolts and "dragging his feet." Mr. Johnson observed that Mr.
Paugh was installing bolts in a three-bolt pattern, rather than
the normal two-bolt pattern and asked him about it. Mr. Paugh
responded to Mr. Johnson "You cover your ass, and I will cover
mine." Mr. Johnson then told Mr. Paugh "if you need to put them
in skin to skin, put them in skin to skin." Mr. Paugh told Mr.
Johnson that the place he was bolting was too wide and needed an
extra bolt, and Mr. Johnson took measurements and found that it
was 1 foot wider than the customary 16 foot width. Mr. Johnson
sensed there was friction between Mr. Paugh and Mr. Beckman, and
left to move the fan (Tr. 14Ä18). Mr. Paugh accused Mr. Johnson
of holding up the crew and stated "It ain't none of us" (Tr.
14Ä18, 21).
Mr. Johnson stated that while he was moving the fan, Mr.
Beckman appeared and said "John hit me," and he "was emotionally
shook up" and was "near to crying" (Tr. 19). Mr. Johnson took Mr.
Beckman back to the bolter and asked Mr. Paugh whether he had hit
Mr. Beckman and whether he had been on his side of the bolter.
Mr. Paugh admitted that he went around the bolter to speak with
Mr. Beckman, but denied that he had hit him, and gave no further
explanation. Based on Mr. Beckman's account of the incident, Mr.
Johnson concluded that he and Mr. Paugh had been fighting (Tr.
21). Mr. Johnson took them out of the mine and telephoned foreman
Polce and informed him that they had been fighting underground.
Mr. Polce instructed Mr. Johnson to inform them that they were
both suspended, and to escort them off the mine, and that a
company representative would contact them. Mr. Johnson informed
Mr. Paugh and Mr. Beckman that they were suspended and he
escorted them off the property in their vehicles (Tr. 22Ä26).
Mr. Johnson confirmed that he was interviewed about the
fighting incident by mine management officials Gearhart, Pritt,
and Tenney on Friday, March 7, 1986, and that he told them that
Mr. Beckman and Mr. Paugh had been fighting underground. Mr.
Paugh and Mr. Beckman were not present during the interview, and
Mr. Johnson did not discuss whether or not they should be
discharged (Tr. 28). Mr. Johnson did not know who made the
discharge decision, but speculated that it was Mr. Polce or the
other officials (Tr. 41).
Mr. Johnson confirmed that Mr. Paugh was a good worker, and
that he did his work on his own without being told. Mr. Johnson
denied that he ever harassed Mr. Paugh or asked
Page 24
~851
him or any other crew members to return to work before their
normal 30Äminute lunch break ended. Mr. Johnson also denied
assigning Mr. Paugh anymore work than anyone else was required to
perform (Tr. 29).
Mr. Johnson confirmed that Mr. Paugh was concerned about
maintaining the ventilation over his roof bolter, but denied that
Mr. Paugh had ever made any safety complaints or that he had ever
disciplined him for raising the ventilation issue (Tr. 33). Mr.
Johnson stated that on one occasion Mr. Paugh became angry and
threatened to hit him, and "I told him, if he wanted to hit me,
to go ahead and hit me" (Tr. 34). Mr. Johnson could not recall
any details of the incident. Mr. Johnson stated that on another
occasion, he was angry with Mr. Paugh because of his failure to
advise him that his bolter needed repairing before going to lunch
(Tr. 30Ä31).
Mr. Johnson stated that while it was possible that he made a
statement to Mr. Wolfe that his job was easier since Mr. Paugh's
departure, he could not recall making the statement. Mr. Johnson
stated further that during the conversation with Mr. Wolfe, Mr.
Wolfe made the statement that the issue concerning Mr. Paugh's
discharge "was not over yet," and that "If you are going to get
the company, you've got to get them on a safety violation. This
is the way you've got to get them" (Tr. 35).
Mr. Johnson denied that he has ever ordered anyone to work
under unsupported roof. He confirmed that he has observed men
doing this but has called them back. If any place needed to be
scooped out under unsupported roof, he would do the job himself
rather than have someone else do it (Tr. 40).
On cross-examination, Mr. Johnson confirmed that his prior
suspension occurred in approximately March, 1984, and he did not
know who had reported him to management. He also confirmed that
the incident concerning Mr. Paugh's failure to notify him that
his bolter needed repairs, and Mr. Paugh's threats to hit him
occurred prior to his suspension. With regards to Mr. Paugh's
prior threat, Mr. Johnson confirmed that he could tell by Mr.
Paugh's demeanor that he was angry, and that his threat was only
verbal. Mr. Johnson stated that he is larger in statute (5 foot 9
and weighs 260) than Mr. Paugh and could take care of himself,
but denied that he was afraid of Mr. Paugh or would strike back
if Mr. Paugh attempted to strike him (Tr. 41Ä48).
Page 25
~852
Mr. Johnson confirmed that during the time Mr. Paugh worked on
his section he was transferred off several times during pillaring
work when the bolters were assigned to other sections where
bolting was required to be done. Mr. Johnson denied that Mr.
Paugh was ever transferred off his section by Mr. Polce because
he and Mr. Paugh could not get along (Tr. 48Ä49). Mr. Johnson
denied that he had ever ordered Mr. Paugh to rock dust, shovel
the feeder, or hang ventilation curtain before his lunch break
was over (Tr. 49Ä52).
Mr. Johnson stated that he was not aware of any complaints
made about him to Mr. Polce by Mr. Paugh. However, he was aware
of an incident when the bolter was down, and Mr. Polce discussed
it with Mr. Paugh and Mr. Beckman (Tr. 53Ä54). Mr. Johnson stated
that Mr. Beckman and Mr. Sisler complained to him on Tuesday,
March 4, about Mr. Paugh's "foot dragging," and that Mr. Beckman
complained to Mr. Polce about it (Tr. 58Ä61).
Mr. Johnson stated that when Mr. Beckman told him that Mr.
Paugh had hit him, he did not state that Mr. Paugh had pushed him
into the bolter. Mr. Johnson conceded that at that time he knew
that there was a company policy against fighting, and that it was
an offense for which one could be discharged. However, he denied
that the incident in question presented him with "a golden
opportunity" to get Mr. Paugh fired (Tr. 75). Mr. Johnson could
not recall whether he told the management disciplinary committee
that Mr. Paugh denied hitting Mr. Beckman. He did tell them that
Mr. Beckman stated that Mr. Paugh had hit him, and that Mr. Paugh
claimed he laid his hand on his shoulder (Tr. 87).
In response to further questions, Mr. Johnson stated that
Mr. Paugh "was a quiet person," but he has seen him upset. He
denied that he and Mr. Paugh were constantly bickering or arguing
over the lack of air over the bolter. He denied that Mr. Paugh
complained about this, but admitted that he knew it was "a sore
spot" with him because he had trouble with Mr. Paugh because he
would not help move the fan. The fan weighed 600 pounds, and it
was everyone's job to maintain the ventilation. However, there
were times when Mr. Paugh was bolting and was not aware that the
fan was down or being moved, and in such instances Mr. Johnson
did not expect Mr. Paugh to continue bolting, but did expect him
to help move the fan and restore the ventilation. Mr. Johnson
stated that Mr. Paugh would know when its time to move the fan
"when I let him know" (Tr. 99).
Page 26
~853
Mr. Johnson denied that he harassed Mr. Paugh, or that he
assigned him other work when he was through bolting as a means of
harassing him (Tr. 100). Mr. Johnson confirmed that on occasion
when Mr. Paugh's bolting crew was caught up with its work, he
would assign all of the crew to rock dust or whatever needed to
be done, and he treated all of them equally (Tr. 106). Mr. Paugh
did what was asked of him, and did not complain (Tr. 101).
Mr. Johnson confirmed that when Mr. Beckman told him that he
had been hit by Mr. Paugh, he did not ask him where he was hit,
and while he saw no physical evidence or bruises, Mr. Beckman was
"emotionally upset" (Tr. 103).
Mr. Johnson stated that during the 2 or 3 years that Mr.
Paugh worked for him, they "got along fairly well," and he
considered Mr. Paugh to be "a better than decent worker who never
said much" (Tr. 104). If Mr. Paugh complained about not being
advised that the fan was being moved, or the lack of air over the
fan, he complained to the "hourly men" and not to him (Tr. 105).
Mr. Johnson had no knowledge of any complaints by Mr. Paugh to
any MSHA inspectors (Tr. 105).
General Mine Foreman Steven B. Polce confirmed that on March
5, 1986, Mr. Johnson was Mr. Paugh's section foreman. Mr. Polce
also confirmed that as mine foreman, his duties included taking
care of personnel problems, and that Mr. Johnson and the other
section foremen reported to him and reported any problems with
their men to him (Tr. 107Ä110).
Mr. Polce confirmed that he met with the roof bolters and
section foremen when the new KÄ8 section was begun during the
week of March 3, 1986, and advised them that they had to arrange
their own individual transportation to work because of the work
requirements on the section (Tr. 110Ä111). Mr. Polce confirmed
Mr. Johnson's shift worked 1 hour overtime on Tuesday, March 4,
and that on Wednesday, March 5, Mr. Beckman told him that Mr.
Paugh was intentionally "dragging his feet" and slowing down the
roof bolting so that he would be "getting overtime for riding by
himself." Mr. Polce stated that he then called Mr. Johnson to his
office and instructed him to keep an eye on the bolting crew, and
if there was a problem to try and straighten it out (Tr. 112).
Mr. Polce stated that he received a telephone call at his
home on March 5, after arriving from work, and Mr. Johnson
informed him that he had a problem with Mr. Paugh and Mr. Beckman
in that they were fighting underground. Since fighting
underground is against company policy for safety
Page 27
~854
reasons, Mr. Polce instructed Mr. Johnson to suspend Mr. Paugh
and Mr. Beckman until further notice and to escort them off the
property (Tr. 113). The next day, Mr. Polce informed personnel
manager Gearhart and mine superintendent Pritt about what had
happened, and Mr. Polce went underground to the area which had
been mined the evening before, and measured the widths of the
places and found them to be 17 feet wide with good top. Mr. Polce
confirmed that he told Mr. Pritt and Mr. Tenney that Mr. Paugh
and Mr. Beckman were fighting underground, and a meeting was
arranged for Friday, March 7, "to get to the root of the problem"
(Tr. 115).
Mr. Polce stated that he and Mr. Gearhart, Mr. Pritt, and
Mr. Tenney met on Friday, and interviewed Mr. Johnson, Mr. Paugh,
Mr. Beckman, and Mr. Sisler individually and out of each other's
presence. The decision to discharge Mr. Paugh for fighting
underground was a collective decision made on Friday by all of
the management officials who did the interviewing, and Mr. Polce
informed Mr. Paugh of the decision the following Monday, March
10, 1986 (Tr. 116Ä118).
Mr. Polce stated that he could not recall what was said
during the interviews because Mr. Gearhart was taking notes, and
he (Polce) made no notes. Mr. Polce could not recall what Mr.
Paugh said in his defense, and that "the one that sticks out in
my mind the most was Earl Sisler." Mr. Polce stated that Mr.
Sisler's version of the incident was as follows (Tr. 116Ä117):
A. He told me about John Paugh leaving the right-hand
side of his bolting machine and coming around the back
of the bolter, and he said he was tired of the cry
baby, bastard, or something, referring to Harry
Beckman, and went on Harry Beckman's side of the
bolter.
And Earl said whenever he looked up, that Harry's hat
was knocked off, and he seen Harry turn around and,
like, stop John Paugh from further attacking him, or
whatever. And he seen Harry leave the roof bolting
machine and go get Randy Johnson.
Mr. Polce stated that the only other reported fight at the
mine which he was aware of concerned an argument which resulted
in one miner swinging his dinner bucket at another miner, but the
matter was resolved without further action after the miner who
swung the bucket resigned his job (Tr. 118). Mr. Polce confirmed
that in the event of a fight, only
Page 28
~855
the aggressor would be fired, even if its the first offense, and
the punishment for fighting is dismissal rather than a warning or
a suspension (Tr. 120).
Mr. Polce stated that Mr. Paugh was a good worker "when he
didn't want to drag his feet for certain reasons or take his time
when it wasn't needed to be taken." He denied that Mr. Paugh had
ever made complaints to him, or that he discussed the matter of
lack of air over his bolter numerous times. On one occasion when
he was underground and found that the bolter was shutdown, he
asked Mr. Paugh about it, and Mr. Paugh informed him that the fan
was down. When Mr. Polce proceeded to test the air with his
anemometer, Mr. Paugh remarked "What are you getting all huffy
about." However, the fan came on again, and that ended the matter
(Tr. 121Ä122).
Mr. Polce confirmed that Mr. Paugh has been transferred from
and back to Mr. Johnson's section, and that it is a normal
practice to reassign bolters to other crews. Mr. Polce denied
that he ever transferred Mr. Paugh because he could not get along
with Mr. Johnson (Tr. 123, 125).
Mr. Polce stated that he has worked with Mr. Johnson for 8
years, visits his section every day if possible, and he considers
him to be one of his best foreman in terms of safety, production,
and cleanup of his section (Tr. 126). Mr. Polce has no knowledge
of Mr. Johnson ever harassing Mr. Paugh, and confirmed that Mr.
Paugh never discussed Mr. Johnson with him (Tr. 127).
On cross-examination, Mr. Polce confirmed that he was aware
of Mr. Johnson's prior suspension, had no knowledge that he ever
scooped under unsupported roof, and notwithstanding his prior
suspension for a safety infraction, he still considers Mr.
Johnson "one of my best foremen all around for his performance of
what he does" (Tr. 128).
Mr. Polce confirmed that he was aware of the two prior
incidents concerning Mr. Johnson and Mr. Paugh with regard to the
bolter which needed repairs and Mr. Paugh's reported threat to
hit Mr. Johnson. Mr. Polce also confirmed that he was aware of
the prior discussions between Mr. Paugh and Mr. Johnson
concerning Mr. Paugh's insistence for air over his bolter, and
while he could not state whether they had more than one
discussion, Mr. Polce stated "I remember the talk that there was
a problem there" (Tr. 129). Mr. Polce
Page 29
~856
also confirmed that he had heard that Mr. Paugh made a statement
during the week of March 3, that if he had to work overtime, he
would make sure he got enough to pay for his gas, because of
having to drive by himself to work (Tr. 131).
Mr. Polce confirmed that the collective decision to
discharge Mr. Paugh was made after an open discussion by those in
attendance at the meeting, and the collective conclusion was
"that it was in the handbooks that for fighting underground it's
a discharge" (Tr. 136). Mr. Polce stated that at the time of the
decision, he was aware of the different versions of the incident,
including the assertion that Mr. Paugh hit Mr. Beckman, that Mr.
Paugh had pushed Mr. Beckman into the bolter, and Mr. Paugh's
denial that he hit Mr. Beckman, and simply went around the bolter
to talk to him and placed his hand on Mr. Beckman's shoulder. He
also recalled Mr. Beckman's statement that Mr. Paugh pushed him
into the bolting machine while he was tramming it and that it
knocked his hard hat off, and Mr. Sisler's statement that Mr.
Beckman's hat was knocked off, and that he more or less turned
around to protect himself by grabbing Mr. Paugh's arms. Mr. Polce
stated that he saw no difference "if you're hit from the back or
pushed from the back (Tr. 137Ä139), and that "If he was the
aggressor, come around behind the man and pushed him in the back
into a bolting machine, as far as I am concerned, that's it" (Tr.
150).
Mr. Polce stated that Mr. Beckman was not discharged because
it was concluded that he was not the aggressor, and he denied
that Mr. Beckman's complaint that Mr. Paugh was "dragging his
feet" influenced his decision in this regard (Tr. 142). Mr. Polce
admitted that he was aware that Mr. Paugh had in the past drilled
more test holes than were necessary or installed additional
support into good top that was unnecessary, and that he confirmed
this during his visits to the section. He conceded that it is the
roof bolter's responsibility to make sure the roof where he is
working is safe and that he installs enough bolts to make it safe
(Tr. 144). He also confirmed that Mr. Johnson "probably" told him
that Mr. Paugh may have gotten behind in his work at times, and
Mr. Polce has observed that Mr. Paugh would at times get behind
the other bolter, and at other times, he would be ahead of the
other bolter. However, Mr. Polce could not recall discussing this
with Mr. Paugh (Tr. 154).
Mr. Polce confirmed that at the time the decision was made
to discharge Mr. Paugh, he was unaware of any prior fight between
Mr. Paugh and Mr. Lucas, and he learned of that incident during
the week of the instant hearing (Tr. 146).
Page 30
~857
Mr. Polce also confirmed that Mr. Paugh's prior "encounters" with
Mr. Johnson never came up during the meeting of March 7, but that
he was aware of them (Tr. 147Ä148).
Personnel Director Thomas Gearhart confirmed that the
respondent's investigation of the incident which resulted in Mr.
Paugh's discharge was accomplished through interviews on Friday,
March 7, 1986, conducted by a "management team" consisting of
himself, Mr. Polce, Mr. Pritt, and Mr. Tenney. The team
interviewed Mr. Johnson, Mr. Beckman, Mr. Sisler, and Mr. Paugh
separately in order to determine the facts, and while the
question of the spacing of the roof bolts was discussed, Mr.
Gearhart confirmed that he was only concerned about the fighting
incident (Tr. 20Ä23; 167Ä168).
Mr. Gearhart stated that Mr. Paugh's version of the incident
was that he simply walked around the bolter, past Mr. Sisler,
laid his hand on Mr. Beckman's shoulder and asked him "Why are
you mad?" Mr. Beckman's version was that while at the controls of
the bolter which he was tramming, "I was either pushed or hit
from the back. I don't know. It was behind me. And the next thing
I knew, I was into the bolter, and I turned around and grabbed
John Paugh's hands to restrain him. I grabbed his arms, went by
him, and got the foreman" (Tr. 169).
Mr. Gearhart stated that Mr. Johnson stated that prior to
the incident Mr. Beckman had complained to him "about John
dragging his feet and the bolt spacing, the test holes," and that
Mr. Johnson spoke with them and told them they would have to get
along and to get back to work. Mr. Johnson then left the area,
and Mr. Beckman came to find him and informed Mr. Johnson that
Mr. Paugh had hit him. Mr. Johnson returned to the bolter with
Mr. Beckman, and Mr. Paugh admitted that he had been on Mr.
Beckman's side of the bolter, but denied hitting him (Tr.
170Ä171). Mr. Gearhart stated that after the interviews were
completed, the decision was made to discharge Mr. Paugh, and he
stated as follows (Tr. 171):
A. Okay. Then, we, in turn, decided if, in fact there
was a fight, based on the information that we had
gathered from the people that we interviewed. And we
established the fact that, yes, there was a fight; John
Paugh was the aggressor; and Harry Beckman had handled
it the way he should, to go get the foreman and didn't
return any blowsÄwent to get the foreman, reported it.
Page 31
~858
Mr. Gearhart confirmed that Mr. Polce called Mr. Paugh on March
10, 1986, and informed him of the decision to discharge him. Mr.
Gearhart also confirmed that Mr. Paugh called him after he was
informed of his discharge, and said that he had simply laid his
hand on Mr. Beckman's shoulder, and that he told him this again
when he came to the mine to pick up his belongings. Mr. Gearhart
stated that he informed Mr. Paugh that the matter had already
been investigated and that he did not wish to rehash or discuss
it further (Tr. 172). Mr. Paugh made no mention of any complaints
(Tr. 173).
Mr. Gearhart confirmed that Mr. Johnson had been suspended
for a safety violation, but that Mr. Paugh was not on his roof
bolting crew when this occurred, and raised no concerns about Mr.
Johnson (Tr. 181).
On cross-examination, Mr. Gearhart denied that Mr. Paugh was
discharged for making safety complaints (Tr. 188). He confirmed
that during the investigation of the fighting incident in
question, he believed Mr. Beckman to be more credible than Mr.
Paugh, and believed that Mr. Paugh lied when he said he went
around the bolter simply to speak with Mr. Beckman (Tr. 191). He
considered Mr. Beckman's statement that he did not know whether
he was pushed or hit from behind by Mr. Paugh, and that he "was
either hit or pushed" into the bolter (Tr. 194).
Mr. Gearhart confirmed that he was contacted by a state
unemployment representative concerning the reason for Mr. Paugh's
discharge, but denied that the representative made any statement
to him that the incident as he described it did not sound like a
fight. Mr. Gearhart stated that he told the representative that
he did not intend to appear with witnesses at any unemployment
benefits determination proceeding (Tr. 195). He earlier testified
that he could not recall the exact words he used in describing
the fight, nor could he recall stating to the representative that
Mr. Paugh "had pushed another worker" or that he "had put his
hand on another worker" (Tr. 24Ä25).
Mr. Gearhart confirmed that at the time the decision was
made to discharge Mr. Paugh, the management team was not aware of
the prior fight between Mr. Paugh and Mr. Lucas, and that this
information was provided by Mr. Beckman after Mr. Paugh's
discharge (Tr. 197Ä198). Mr. Gearhart also confirmed that Mr.
Paugh never mentioned anything to management about any
ventilation problems during his interview, and that he was not
aware of any complaints made by Mr. Paugh, or any problems
between Mr. Paugh and Mr. Johnson (Tr. 198, 200).
Page 32
~859
Mr. Gearhart stated that the only statement made by Mr. Paugh
during the interview was that he went around the bolter to talk
to Mr. Beckman and laid his hand on his shoulder, and Mr.
Gearhart did not believe him (Tr. 202Ä203). Mr. Gearhart
confirmed that the management team discussed Mr. Paugh's version
of the incident, and did not believe him. The team believed Mr.
Sisler and Mr. Beckman, and considering all of the circumstances,
including the fact that Mr. Paugh was angry, called Mr. Beckman
"cry baby, son of a bitch, or bastard, or whatever expletive,"
and Mr. Beckman's hat flying off, the team concluded that a fight
had taken place (Tr. 204Ä206).
John Paugh was recalled by the Court, and he confirmed that
he was not working on Mr. Johnson's section at the time he was
suspended for a safety infraction, but that Mr. Johnson's
suspension was common knowledge at the mine (Tr. 213). Mr. Paugh
confirmed that he never complained to Mr. Gearhart about any
problems with Mr. Johnson, but that he did inform Mr. Polce that
he could not get along with Mr. Johnson because he expected him
to bolt when the line curtain or fan were down. On that occasion,
Mr. Polce took him off Mr. Johnson's section for awhile, and then
put him back after a layoff, and this was the only time that he
was reassigned for complaining about Mr. Johnson (Tr. 214).
With regard to Mr. Johnson assigning him other work to do,
Mr. Paugh stated as follows (Tr. 216Ä218):
Q. Well, let me ask you this. Now, if you complained to
him or if you would tell him that you were not going to
do any more bolting and you shut your bolter down until
they move the fanÄlet's assume it took a half hour to
move the fan. Okay? And while your bolter is down and
while they are moving the fan up, he tells you to go
over and do something else. "Keep occupied until we get
the air back." Do you see anything wrong with that?
A. No, not a thing wrong with that.
Q. Is that the way it happened?
A. No. I usually helped with moving the fan when he
didn't tell me to do something else.
Q. Well, can you give me an example of when you
complained to him that you didn't want to
Page 33
~860
work, for example, in something that you thought was unsafe and
he put you someplace else? Give me a for-instance.
A. Well, just the one thing, you know, when we was on
line curtain. They would take the curtain down across
the heading so the buggies could run that way. They
would take the bolter's air away.
Q. That took your air away from where you bolted?
A. That's right.
Q. Then, what would happen?
A. He would say, "Well, if you don't want to bolt," he
says, "go do this and do that." And I said, "Okay."
Q. Okay. So, that situation, you felt that you were
exposed to some unsafe conditions; in other words, not
enough air on the bolting section? Is that right?
A. Yes. It's unsafe.
Q. In other words, if the ventilation curtain is down
to accommodate the buggy operators, that is going to
affect the air where you are working on bolting; is
that correct?
A. Yes.
Q. And you would tell him that?
A. Yes.
Q. And he would say, "Okay. You don't have to work
there; I'm going to put you doing something else." Is
that correct?
A. That's what he would do, yes.
Q. Now, is it possible that he assigned you to do this
other work because he didn't want you working there in
that dusty atmosphere where there wasn't enough air and
because you
Page 34
~861
didn't want to, or he assigned you to do something else because
he was punishing you for complaining?
A. Yes, I would use harassment, not punishment.
Q. You say it's harassment?
A. Yes.
Mr. Paugh conceded that other times when the ventilation
curtain was down and his bolting machine was off during lunch
break, Mr. Johnson would tell him "Go eat something" (Tr. 218).
Mr. Paugh stated that over a period of 2 or 2 1/2 years, Mr.
Johnson cut his lunch break short on three or four occasions and
assigned him to "unnecessary things" such as rock dusting and
shoveling the feeder (Tr. 220). When asked whether he believed
that Mr. Johnson was "deliberately doing this to make it tough on
you," Mr. Paugh responded "somewhat, yes." When asked whether Mr.
Johnson would treat other miners the same way, Mr. Paugh
responded "Just if they would give him a hard time on the same
thing" (Tr. 220). He testified further as follows (Tr. 220Ä221):
Q. Could you relate these three (3) or four (4)
instances to a hard time that you had given Randy
Johnson? In other words, was there a hard time directly
connected to him cutting your lunch break short to do
what you have described as unnecessary work?
A. Yes. A lot of times when the bolter was down or
there wouldn't be air to it, he wouldÄ
Q. If the bolter is down and this is your regular
shift, you would expect to do other work; is that
right?
A. That's true.
Q. I'm talking about lunch break, your lunch break
being cut short.
A. I've seen him before walk past the curtain that was
down and come up and get me off the tool car at lunch
time to go put the curtain back up.
Page 35
~862
Q. All right. Any other incidents where he got you off your lunch
break to do something?
A. A lot of times, if he was wanting the section rock
dusted quick, yes, he would.
Q. You say, "A lot of times." You earlier said three or
four (4) occasions this happened.
A. Well, yeah. At lunch time, it would be a couple of
times.
Complainant's Arguments
During oral arguments on the record at the hearing in
opposition to the respondent's motion to dismiss the complaint
(which was denied), and in support of his argument that a prima
facie case of discrimination has been established, Mr. Paugh's
counsel asserted that while there is no evidence that Mr. Paugh
consistently insisted on doing his job safely during the entire 6
years of his employment with the respondent, he has established
this fact for at least the 2 years immediately preceding his
suspension and subsequent discharge on March 10, 1986 (Tr.
172Ä173). Counsel argued further that during this 2Äyear period,
there were "bad feelings" and hostility between Mr. Paugh and his
foreman Randy Johnson, probably rooted in the incident concerning
a roof bolter which had not been repaired and the failure to
promptly report this to Mr. Johnson. Counsel argued further that
during this time Mr. Paugh had insisted on complying with safety
regulations, particularly with respect to the amount of available
air ventilation over his roof-bolting machine, and that there
were many "discussions and arguments" between Mr. Paugh and Mr.
Johnson over this issue (Tr. 170).
Counsel conceded that apart from the arguments with his
foreman over the lack of air for the roof-bolting machine, there
is no evidence of any harassment against Mr. Paugh. However,
given the hostility by Mr. Johnson as evidenced by the "shouting
matches" which resulted from Mr. Paugh's insistence that he have
adequate ventilation, and coupled with the fact that Mr. Johnson
"despised" Mr. Paugh, and stated to Mr. Wolfe that "things go a
lot easier" after Mr. Paugh's discharge, counsel concluded that
he has established a prima facie case of a discriminatory
discharge (Tr. 175).
In his posthearing brief, counsel asserts that Mr. Paugh's
protected activity was his compliance with safety
Page 36
~863
regulations; namely, his refusal to continue bolting when there
was insufficient air over his bolter, his insistence on
installing a sufficient number of roof bolts to secure the roof
in his work area, and his refusal to work under unsupported roof.
Counsel maintains that all of these safety concerns were
communication by Mr. Paugh to his foreman Randy Johnson.
Counsel concludes that considering all of the evidence in
this case, it is clear that the respondent seized upon the
appearance of an altercation between Mr. Paugh and Mr. Beckman on
March 5, 1986, as an excuse for discharging Mr. Paugh. In support
of this suggested pretexual discharge, counsel relies on a
statement filed by Personnel Director Gearhart with the MSHA
investigator who investigated Mr. Paugh's complaint, in which Mr.
Gearhart makes reference to "a credible allegation" by Mr.
Beckman that Mr. Paugh "had also started a fight with another
employee four or five years ago" (exhibit CÄ4; the Lucas
incident). Since that prior incident was not known to the
management team when it made its decision to discharge Mr. Paugh,
counsel concludes that the respondent made it appear that Mr.
Paugh had a history of fighting, and that it did so to support
its pretexual decision to discharge Mr. Paugh for purportedly
fighting underground with Mr. Beckman.
Counsel maintains that the preponderance of the evidence in
this case proves that Mr. Paugh had engaged in protected
activity, and that his discharge was motivated by that activity.
Counsel further concludes that the evidence does not demonstrate
that the respondent would have taken any adverse action against
Mr. Paugh in any event for his unprotected activities alone.
Respondent's Arguments
The respondent argues that Mr. Paugh has failed to establish
a prima facie case of discrimination because he did not engage in
protected activity and, in any event, could not link that
protected activity to any improper motive by the respondent.
Respondent suggests that Mr. Paugh's entire case rests on nothing
more than "fantastical allegations" of harassment, insufficient
to sustain his ultimate burden of proof. Moreover, even if Mr.
Paugh's testimony were credited such that he were able to prove a
prima facie case of discrimination, respondent argues that it
could successfully defend against such a prima facie case because
substantial evidence in the record shows that Mr. Paugh was fired
for one reason
Page 37
~864
wholly unrelated to any protected activityÄfighting underground
in contravention of company rules. Respondent concludes that
firing an employee for a severe infraction of the company rules
does not amount to illegal discrimination under the Act.
Respondent asserts that despite the vague allegations in his
complaint, the record shows that Mr. Paugh did not make any
protected safety complaints. With regard to Mr. Paugh's alleged
ongoing complaints of insufficient ventilation at the working
face, respondent maintains that the record demonstrates that he
failed to make these complaints to the respondent's personnel,
and never mentioned any safety related issues to personnel
director Gearhart. And, despite Mr. Paugh's allegations that he
constantly complained about safety, he never made safety
complaints at the weekly safety meetings. Respondent, therefore,
concludes that uncommunicated safety complaints do not constitute
activity protected under the Act.
Respondent maintains that Mr. Paugh's March 5, 1986, comment
to foreman Randy Johnson about spacing between the roof bolts did
not constitute a protected safety complaint in that Mr. Paugh
made the comment solely to "justify" the dilatory escapade in
which he engaged, not to ensure a safe roof, but rather to ensure
that he would be asked to work overtime for which he would be
handsomely compensated. Respondent concludes that the Act was not
meant to protect such pretextual and malicious conduct.
With regard to Mr. Paugh's asserted work refusal for safety
reasons, respondent asserts that the Act only protects miners who
refuse to work under conditions which they reasonably believe in
good faith to be unsafe or unhealthful. Although recognizing that
a miner may engage in affirmative self-help and refuse to work,
respondent maintains that this may only be justified where the
refusal is based on a reasonable, good faith belief that such
affirmative action is necessary.
Respondent maintains that Mr. Paugh's action in first
shutting off the bolter and subsequently protesting to mine
foreman Polce that ventilation had subsided constitutes the kind
of unreasonable affirmative self-help against which the Act was
not meant to protect. Respondent asserts that Mr. Paugh's belief
in the existence of a hazardÄlack of ventilation--was not
reasonable. Even though the fan shut down for a short time, Mr.
Polce measured the air current over the bolter as well over the
minimum requirement of
Page 38
~865
3,000 cfm. The mere fact that the fan did not operate for several
minutes did not render Mr. Paugh's belief a reasonable one,
because the required air current of 3,000 cfm could still have
been maintained even though the fan on the section was not
working.
Respondent asserts that Mr. Paugh's self-help in shutting
off the bolter was an unreasonable and excessive approach to the
hazard he perceived because it prevented the other roof bolter
and the rib bolter from performing their work even though the
area was well-ventilated. Respondent believes that Mr. Paugh
would have behaved reasonably if he had alerted the foreman to
the ventilation problem he perceived and asked to be reassigned
to other duties without preventing others from proceeding with
their work. Under circumstances where mere communication and
subsequent reassignment would have solved the perceived problem,
respondent concludes that Mr. Paugh's defiant self-help was
completely unwarranted.
Respondent maintains that Mr. Paugh has failed to establish
by any credible evidence that he was harassed by the respondent
because he made numerous safety complaints and that his testimony
in this regard is fraught with inconsistencies, contradicts the
testimony of other credible witnesses, and should not be
credited. Respondent maintains that no one connected with the
respondent was aware of any safety complaints, and section
foreman Johnson and personnel director Gearhart testified that
Mr. Paugh never approached them with complaints of any kind.
Conceding that Mr. Paugh did discuss one perceived ventilation
problem with mine foreman Polce when Mr. Paugh shut down his
bolter, respondent asserts that Mr. Paugh's testimony of numerous
ventilation complaints to Mr. Polce in his office during the
18Ämonths prior to his discharge was contradicted by Mr. Polce
who testified that he never even had an office, and that he was
not in his current capacity for 18Ämonths prior to Mr. Paugh's
discharge.
Respondent denies that Mr. Johnson harassed Mr. Paugh by
cutting his lunch hours, or that Mr. Paugh was transferred to
alleviate any friction between them. Respondent believes that if
Mr. Paugh were truly harassed, he would have complained to Mr.
Gearhart, or at least brought it to management's attention during
its investigation of the fighting incident. Since Mr. Johnson
played no role in the discharge decision, and was in no position
to retaliate, respondent cannot reconcile Mr. Paugh's silence
with regard to his claims of harassment.
Respondent maintains that the only reason for Mr. Paugh's
discharge was his fighting underground on mine property in
Page 39
~866
violation of company rules, and that management's investigation
revealed that Mr. Paugh had been the aggressor. Respondent points
out that fighting is an offense for which discharge is an
appropriate penalty, and that Mr. Paugh was fully aware of this
fact. Respondent takes the position that there is no evidence of
any discriminatory motive on its part, but acknowledges that
indirect circumstantial evidence such as knowledge of the
protected activity, hostility toward the miner because of the
protected activity, coincidence in time between the protected
activity and the adverse action, and disparate treatment of the
complaining miner can be used to establish discriminatory intent.
As to the first factor noted above, respondent argues that
it had no knowledge of Mr. Paugh's asserted protected activities.
Despite Mr. Paugh's contentions that he routinely complained
about safety matters, respondent asserts that its witnesses
categorically denied that Mr. Paugh ever approached them directly
with safety complaints.
With regard to the one instance where Mr. Paugh shut down
the bolter and discussed the ventilation with Mr. Polce,
respondent points out that even assuming that the shutting down
of the bolter was protected activity, Mr. Polce was the only
member of management's investigation team aware of this incident,
and that at the time the decision was made to discharge Mr. Paugh
the incident was not discussed and played no part in the
discharge decision. Respondent suggests that the only arguable
"safety complaint" of which management was aware, was Mr. Paugh's
"self serving" statement on March 5, that the top needed
additional bolts, even though everyone else believed that the top
was sound.
Respondent views Mr. Paugh's allegations of management
hostility towards him because of his safety concerns or protected
activities as "incredible." Respondent argues that Mr. Johnson
flatly denied any harassment of Mr. Paugh, and that other
management and hourly personnel saw no evidence of any such
harassment. Respondent concedes that Mr. Paugh was asked to
perform other tasks while he was not bolting, but maintains that
he was treated no differently than any other roof bolter. As for
any transfers of Mr. Paugh to ease the alleged hostility between
him and his foreman, respondent relies on the testimony of Mr.
Polce and Mr. Gearhart that company policy dictates against such
reassignments for personal disputes.
Respondent argues that even if Mr. Paugh did make safety
complaints, management dealt with them in a responsible
Page 40
~867
manner. Mr. Paugh's "complaint" about the spacing of the bolts on
March 5, was answered by Mr. Johnson telling him to do what he
thought was safe. Mr. Polce's response to Mr. Paugh's shutting
off the bolter and questioning the ventilation with Mr. Polce,
was immediately addressed by Mr. Polce when he investigated the
problem by testing the air. With regard to Mr. Paugh's prior
encounters with Mr. Johnson when he threatened Mr. Johnson, and
Mr. Johnson took him to task for not promptly reporting the
condition of a roof bolter which needed repair, respondent points
out that Mr. Johnson handled these situations responsibly.
Finally, respondent points out that Mr. Paugh admitted that prior
to his discharge, he was never disciplined by the respondent or
by Mr. Johnson during the time that he worked for him.
Respondent concedes that the "coincidence of time" factor is
satisfied in this case only with regard to the roof spacing
incident on March 5, 1986, which occurred 5Ädays prior to Mr.
Paugh's discharge. Respondent suggests that there is no
coincidence in time, however, between Mr. Paugh's discharge and
his other alleged safety complaints.
Finally, respondent argues that there is no evidence of any
disparate treatment in the manner in which it handled Mr. Paugh's
fight with Mr. Beckman. To the contrary, respondent maintains
that in making its determination in Mr. Paugh's case, it followed
the same procedure it had previously used to investigate the only
other reported case of fighting. In that instance, respondent
points out that the individual believed to be the aggressor was
suspended pending the outcome of a management investigation, and
after a determination was made that no fight had occurred, the
individual was reinstated. With regard to Mr. Paugh's purported
prior fight with Mr. Lucas, respondent points out that since that
incident was not reported to management, no investigative or
disciplinary action was taken.
Summarizing the aforementioned four indicia of
discriminatory intent, respondent takes the position that there
is little, if any, indirect evidence that it discharged Mr. Paugh
for engaging in protected activity, and that in view of the lack
of any nexus between Mr. Paugh's claimed protected activity and
the adverse action of discharge, respondent concludes that his
claim must fail, McClain v. Westmont Coal Co., 3 FMSHRC 2603
(November 1981) (ALJ Melick).
Respondent argues that even if Mr. Paugh's discharge were
motivated in part by any protected activity on his part,
Page 41
~868
his unprotected activity was the preeminent cause of his
discharge, and the fact uppermost in the minds of management was
that Mr. Paugh instigated a fight underground. Upon reaching this
conclusion after investigation, respondent maintains that
management referred to the company handbook which stated that
fighting underground is a dischargeable offense, and that it was
on that basis alone that respondent discharged Mr. Paugh.
Respondent concludes that since such a "proffered business
justification is not plainly incredible or implausible,
[therefore,] a finding of pretext is inappropriate." Chacon,
supra, 3 FMSHRC at 2516, and that, terminating a miner who
subjects others to needless risk of serious injury as a result of
fighting underground represents a sound business practice, not a
pretext for discrimination. See, e.g., McClain, supra., 3 FMSHRC
at 2606.
Respondent asserts further that regardless of Mr. Paugh's
protected activity, it would have discharged him anyway for
violating company rules against fighting, and that such
disciplinary actions have been affirmed in instances where it was
established that a mine operator had "personnel rules or
practices forbidding the conduct in question." Bradley v. Belva
Coal Co., supra, at 4 FMSHRC 982, 993 (1983); Hollis v.
Consolidation Coal Company, 6 FMSHRC 21 (January 1981); Dickey v.
United States Steel Mining Co., 3 FMSHRC 519 (March 1983).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d
Cir.1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
HeclaÄDay Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510Ä2511
(November 1981), rev'd on other grounds sub. nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C.Cir.1983). The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no way
motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to
Page 42
~869
the affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
1935 (1982). The ultimate burden of persuasion does not shift
from the complainant. Robinette, supra. See also Boich v. FMSHRC,
719 F.2d 194 (6th Cir.1983); and Donovan v. Stafford Construction
Company, No. 83Ä1566 D.C.Cir. (April 20, 1984)
(specifically-approving the Commission's PasulaÄRobinette test).
See also NLRB v. Transportation Management Corporation, ÄÄ- U.S.
ÄÄ--, 76 L.ed.2d 667 (1983), where the Supreme Court approved the
NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510Ä11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.Cir.1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398Ä99 (June 1984).
As the Eight Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir.1965):
It would indeed be the unusual case in which the link
between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the
discrimination can be proven only by the use of
circumstantial evidence. Furthermore, in analyzing the
evidence, circumstantial or direct, the [NLRB] is free
to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:
As we emphasized in Pasula, and recently re-emphasized
in Chacon, the operator must prove that it would have
disciplined the miner anyway for the unprotected
activity alone.
Page 43
~870
Ordinarily, an operator can attempt to demonstrate this by
showing, for example, past discipline consistent with that meted
out to the alleged discriminate, the miner's unsatisfactory past
work record, prior warnings to the miner, or personnel rules or
practices forbidding the conduct in question. Our function is not
to pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they are
credible and, if so, whether they would have motivated the
particular operator as claimed. (Emphasis added).
Mr. Paugh's Protected Activity
It is clear that Mr. Paugh had an absolute right to make
safety complaints about mine conditions which he believed
presented a hazard to his health or well-being, and that under
the Act, these complaints are protected activities which may not
be the motivation by mine management for any adverse personnel
action against him; Secretary of Labor ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir.1981), and Secretary of Labor ex rel. Robinette
v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). Safety
complaints to mine management or to a section foreman constitutes
protected activity, Baker v. Interior Board of Mine Operations
Appeals, 595 F.2d 746 (D.C.Cir.1978); Chacon, supra. However, the
miner's safety complaints must be made with reasonable promptness
and in good faith, and be communicated to mine management, MSHA
ex rel. Michael J. Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d
194, 195Ä96 (7th Cir.1982); Sammons v. Mine Services Co., 6
FMSHRC 1391 (June 1984).
The fact that a mine operator addresses a miner's safety
concerns or complaints, and which are later determined not
constitute violations, or the fact that the complaining miner
filed no safety complaints with any governmental enforcement
agencies, does not remove the Act's protection from any preceding
complaints, Sammons v. Mine Services Company, supra, at 6 FMSHRC
1396Ä97.
In this case, there is no evidence that Mr. Paugh has ever
made any verbal or written safety complaints to any MSHA or state
mine inspectors. Respondent's assertions that Mr. Paugh has not
established that he made safety complaints
Page 44
~871
to mine management are not well taken, and they are rejected.
While it may be true that Mr. Paugh may not have articulated any
safety complaints to his foreman Randy Johnson in any formalized
way, it seems clear to me that his concern over the lack of
adequate ventilation when the fan was being moved resulted in Mr.
Paugh's refusal to continue bolting until the air was restored,
and that this was communicated to Mr. Johnson. Notwithstanding
Mr. Johnson's denials that Mr. Paugh ever complained to him, Mr.
Johnson admitted that Mr. Paugh was concerned about the lack of
adequate air coursing over his bolting machine while the fan was
being moved, and knew that this subject "was a sore spot" with
Mr. Paugh.
Mr. Smith, Mr. Prinkey, and Mr. Wolfe all corroborated the
fact that Mr. Paugh was concerned about the lack of air over his
bolting machine, communicated his concern to Mr. Johnson, and
refused to continue bolting until the air was restored. Mr. Smith
testified that Mr. Paugh complained often to Mr. Johnson about
this matter, and Mr. Prinkey testified that Mr. Johnson became
upset over Mr. Paugh's reluctance to bolt with no air over his
bolter. Although mine foreman Polce denied any frequent
complaints by Mr. Paugh with regard to the lack of air over his
bolter, he did admit to one encounter with Mr. Paugh when he
found that Mr. Paugh had shut down his bolter because of what he
believed to be a lack of adequate ventilation, and this incident
resulted in a discussion between the two of them over this issue.
Although the matter may have been quickly resolved after Mr.
Polce tested the air and the fan came back on immediately, the
fact is that Mr. Paugh made it known to Mr. Polce at that time
that he would not continue bolting while the fan was down and
there was inadequate air over his bolter.
In view of the foregoing, I find Mr. Paugh's testimony
concerning his encounters and discussions with his section
foreman Johnson and mine foreman Polce over the lack of adequate
ventilation over his roof bolter when the fan was down and being
moved to be credible. I conclude that these discussions
constituted "safety complaints" communicated verbally to mine
management, and were therefore protected activity. I also
conclude and find that Mr. Paugh's insistence on having adequate
air over his bolting machine was communicated to both Mr. Johnson
and Mr. Polce, and also constituted protected activity.
Although Mr. Paugh's original complaint asserts that he made
safety complaints about the spacing of the roof bolts, I find no
credible evidence or testimony to support this conclusion. The
only credible testimony of record in this regard
Page 45
~872
is the discussion which took place between Mr. Johnson and Mr.
Paugh on March 5, 1986, shortly before the incident involving Mr.
Beckman. Mr. Paugh believed that the width of the entry required
him to install more bolts, and Mr. Johnson questioned this
contention when Mr. Beckman accused Mr. Paugh of deliberately
installing more bolts so that he could earn overtime. Mr. Johnson
measured the width of the entry, and while he may not have been
happy, he did agree that it may have been a foot too wide, and
instructed Mr. Paugh to do what he had to do to make the place
safe. In this particular instance, while it may have provoked Mr.
Johnson, I do not believe that this incident escalated to the
level of a "safety complaint" by Mr. Paugh.
With regard to Mr. Paugh's assertions made during the course
of the hearing that he often complained to Mr. Johnson about the
ventilation curtains being down while the equipment moved through
the area where he was working, the record establishes that Mr.
Johnson addressed these complaints. Mr. Paugh admitted that in
each instance Mr. Johnson responded by assigning him to do other
work until such time as the air was restored and specifically
told him that he need not continue to bolt (Tr. 216Ä218).
It is well settled that the refusal by a miner to perform
work is protected under section 105(c)(1) of the Act if it
results from a good faith belief that the work involves safety
hazards, and if the belief is a reasonable one. Secretary of
Labor/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC
1001 (1980), rev'd on other grounds, sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir.1981); Secretary of
Labor/Robinette v. United Castle Coal Co., 3 FMSHRC 803, 2 BNA
MSHC 1213 (1981); Bradley v. Belva Coal Co., 4 FMSHRC 982 (1982).
Secretary of Labor v. Metric Constructors, Inc., 6 FMSHRC 226
(February 1984), aff'd sub nom., Brock v. Metric Constructors,
Inc., 3 MSHC 1865 (11th Cir.1985). The reason for the refusal to
work must be communicated to the mine operator. Secretary of
Labor/Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126
(1982).
In this case, the evidence establishes that Mr. Paugh
refused to continue to operate his roof-bolting machine when he
believed that the ventilation all over the bolter was inadequate
because of the fan being shutdown and moved. Further, Mr. Paugh
has also established through his own unrebutted credible
testimony that he also discontinued bolting when the ventilation
curtains were down because of the movement of equipment through
his work area. Assuming that Mr. Paugh's work refusals in these
instances were reasonable, it seems
Page 46
~873
clear to me that they constituted protected activity under the
Act.
With regard to Mr. Paugh's refusal to continue bolting while
the fan was down and being moved, respondent argues that Mr.
Paugh acted unreasonably by discontinuing bolting, and that his
shutting down of his bolter was unwarranted. On the facts of this
case, I disagree. It seems clear to me that the purpose of the
ventilation fan was to provide an uninterrupted flow of air to
the work area when Mr. Paugh was bolting. Mr. Johnson conceded
that there were times when Mr. Paugh was not aware of the fact
that the fan was down while it was being moved. Absent any
evidence to the contrary, I believe one can reasonably conclude
that during the time the fan was down while it was being
advanced, the air coursing over Mr. Paugh's bolting machine was
interrupted, thus affecting both the quantity and quality of air
passing over the bolter. Under the circumstances, there is a
strong inference that in those instances where Mr. Paugh
complained to Mr. Johnson about the lack of adequate ventilation
over his bolter, Mr. Paugh's working environment was inadequately
ventilated, and the respondent has produced no credible evidence
to the contrary. Accordingly, I find that Mr. Paugh's refusal to
continue bolting while the fan was down was reasonable, and
constitutes protected activity.
Respondent's Alleged Hostility and Harassment of Mr. Paugh
During the course of the hearing in this case, Mr. Paugh's
counsel asserted that with the exception of Mr. Paugh's
discussions with Mr. Johnson concerning the issue of inadequate
air ventilation over the roof-bolting machine, there is no
evidence of any harassment of Mr. Paugh on the part of the
respondent. Further, Mr. Paugh has conceded that at no time prior
to his suspension and discharge was he ever disciplined by mine
management because of his asserted safety complaints or other
reasons.
Mr. Paugh initially testified that during a time span of 2
to 3Äyears prior to his discharge while working under Mr.
Johnson's supervision, he complained to Mr. Johnson about the
lack of adequate air over his bolting machine at least 12 times.
As a result of these complaints, Mr. Paugh contended that Mr.
Johnson "would get in an uproar about it," and would assign him
"extra things" to do, e.g., rock dusting, shoveling at the
feeder, stacking ventilation tubing, and advancing the
ventilation curtain, while other members of the bolting crew were
not assigned such work. Mr. Paugh also contended that Mr. Johnson
tried to curtail his normal lunch
Page 47
~874
break to 10 to 15 minutes as a means of harassing him, and that
the extra work assignments were made to punish the roof bolting
crew. In addition, Mr. Paugh contended that on at least one
occasion, Mr. Polce transferred him off Mr. Johnson's section
because of his "conflict" with Mr. Johnson.
When recalled later in the hearing, Mr. Paugh conceded that
he never complained to Mr. Gearhart about his allegations of
harassment by Mr. Johnson and that never told Mr. Gearhart about
his "conflicts" with Mr. Johnson. While it is true that Mr. Paugh
spoke with Mr. Gearhart after his discharge when he returned to
the mine to pick up his personal belongings, and may have
attempted to explain the matter further, and Mr. Gearhart would
not listen, there is no evidence that Mr. Paugh communicated his
allegations of harassment to Mr. Gearhart, or to Mr. Pritt or Mr.
Tenney during management's investigation of the fighting
incident.
With regard to his prior transfer from Mr. Johnson's
supervision, Mr. Paugh testified that it came about as a result
of his disputes with Mr. Johnson over the lack of air over the
roof-bolting machine, and Mr. Paugh did not indicate that he
complained to Mr. Polce that Mr. Johnson assigned him extra work
or curtailed his lunch hours as a means of harassment or
punishment.
When specifically questioned about his contention that Mr.
Johnson curtailed his lunch break "a lot of times," and his
implication that this occurred at least 12 times over the course
of 2 to 3 years, Mr. Paugh conceded that it occurred 3 or 4
times. When pressed further, he stated that "it would be a couple
of times." When asked whether he believed Mr. Johnson assigned
him extra work to deliberately "make it tough on him," Mr. Paugh
responded "somewhat." When asked whether he considered the extra
work assignments as "punishment" for his complaints, Mr. Paugh
responded "I would use harassment, not punishment." The only
specific instances cited by Mr. Paugh in terms of curtailment of
his lunch break were "a couple of times" when he was asked to
re-hang a ventilation curtain and to rock dust.
I take note of the fact that in his initial complaint, as
well as the statements made to MSHA's special investigator during
the investigation of his complaint, while Mr. Paugh alluded to
some extra work assignments, he did not allege that his lunch
hours were curtailed. Ronald Smith, a friendly witness, testified
that he was not aware that Mr. Paugh was ever disciplined for
complaining to Mr. Johnson about the lack of air over his bolter,
and he made no mention of any acts of
Page 48
~875
alleged harassment of Mr. Paugh. Another friendly witness, Jimmie
Wolfe, who testified that Mr. Paugh and Mr. Johnson were
constantly at odds with each other over the issue of inadequate
air over the bolting machine, made no mention of any acts of
harassment on the part of Mr. Johnson. As a matter of fact, Mr.
Wolfe confirmed that while he himself made many safety complaints
to management, he was never subjected to any disciplinary action
because of this. Further, the testimony of Mr. Sisler, Mr.
Beckman, and Mr. Prinkey, all of whom served on Mr. Paugh's
bolting crew under Mr. Johnson's supervision, is devoid of any
indication of any harassment or extra work assignments by Mr.
Johnson as a means of punishing the crew.
I find Mr. Paugh's contentions that his lunch hours were
curtailed by Mr. Johnson to harass or punish him for his
complaints to be equivocal and contradictory, and lacking in
credibility. Mr. Paugh conceded that his regular lunch breaks may
have been shortened at times because of normal work requirements,
and that the "extra work" assignments were made during those
periods when the roof bolter was down. Further, there is no
evidence that Mr. Paugh was ever taken off the roof bolter and
assigned other job tasks except for those occasions when the
bolter was down for maintenance or because of Mr. Paugh's refusal
to operate it while the fan was being advanced and the air was
interrupted.
Although roof bolter and scoop operator Ronald Smith
contended that Mr. Johnson expected him to work and clean up
debris under unsupported roof, he conceded that when he refused,
Mr. Johnson did the work himself, and Mr. Smith admitted that he
sometimes worked under unsupported roof on his own. Further, Mr.
Smith confirmed that after a new scoop was brought into the
section in 1984 to cure a "diesel smoke" problem with an older
machine, Mr. Johnson's section was the cleanest and best section
in the mine. Mr. Smith also confirmed that he had no "safety
gripes" against Mr. Johnson, and was not aware that Mr. Paugh was
ever disciplined because of his safety complaints about the lack
of air over his bolter (Tr. 72, 74Ä75). Mr. Smith also conceded
that the lack of air was not entirely Mr. Johnson's fault, and he
could recall no instances when Mr. Johnson totally ignored Mr.
Paugh's complaints (Tr. 77, 84).
Rib bolter John Prinkey, who worked on Mr. Paugh's bolting
crew, confirmed that while there were times when the crew was not
aware of the fact that the fan was being moved, thereby
interrupting the ventilation, Mr. Johnson never instructed the
crew to continue bolting without air (Tr. 102).
Page 49
~876
Roof bolter Jimmie Wolfe, who at one time had worked with Mr.
Paugh on foreman Johnson's crew, testified that he was not aware
that Mr. Johnson ever ordered Mr. Paugh to continue bolting
without air (Tr. 116). Further, Mr. Wolfe, who at one time had
been a foreman himself, confirmed that during his 7 years of
employment with the respondent, he made safety complaints, but
was never disciplined because of this and still has his job (Tr.
146).
Continuous-miner operator Donald Bray, who was injured when
pinned against a rib in an accident caused by a defective remote
control device on his machine, confirmed that Mr. Johnson never
asked him to do any task which was unsafe or which would place
him in danger, and in referring to Mr. Johnson stated "I don't
think he would do that" (Tr. 157).
During his cross-examination of Mr. Johnson, Mr. Paugh's
counsel stated as follows (Tr. 106Ä107):
BY MR. HALL:
Q. Mr. Johnson, everybody I have talked to in this case
says that above ground you're one of the nicest and
finest guys they have ever met.
A. How's that again? I didn't hear you.
Q. I said everybody I have talked to in this case says
that above ground you're one of the nicest and finest
people they have ever met, including John. And they
also say that you run the best section; you've got the
cleanest section underground. But when you go
underground, you change. Is there a lot of pressure on
you for production?
A. I won't say there's a lot of pressure. There is
pressure. You know that is your job; that is one of
your responsibilities, is the production. So, I'm sure
that there is a lot of pressure.
Mr. Paugh conceded that other members of his crew were
sometimes assigned other job tasks, and he confirmed that when
his bolter or the ventilation were down, Mr. Johnson would invite
him "to go eat something." He also confirmed that when he or Mr.
Prinkey were caught up with their work and had nothing else to
do, they would sit and drink coffee while waiting
Page 50
~877
for Mr. Beckman to catch up with them. Mr. Paugh also conceded
that he would expect to do other work while his bolter or fan
were down, and did not consider it wrong to be assigned other
work. He also conceded that in those instances when the
ventilation curtains and fan were down, thereby reducing the
available air over the bolting machine, Mr. Johnson agreed that
he did not have to remain in the affected areas and would assign
him other work to do until such time as the air was restored. Rib
and roof bolters Prinkey and Wolfe testified that Mr. Johnson
never instructed the bolting crew to continue bolting without
air.
After careful consideration of all of the credible testimony
and evidence presented in this case on the issue of the
curtailment of Mr. Paugh's lunch hours as a means of harassment,
I cannot conclude that this was in fact the case. I cannot
conclude that Mr. Paugh was singled out by Mr. Johnson for extra
work assignments or "special treatment" as a means of punishment
or harassment for his safety complaints. I conclude and find that
Mr. Johnson's work assignments with respect to Mr. Paugh
constituted a reasonable exercise of Mr. Johnson's supervisory
authority and discretion to assign other work while Mr. Paugh's
bolting machine was idle, and that these work assignments were
not discriminatory or made to punish or harass Mr. Paugh for any
safety complaints.
In his initial complaint, Mr. Paugh alleged that his
discharge resulted from a "conflict of interest" and "conflicts"
with Mr. Johnson, and that certain unidentified "other persons,"
acting in concert with Mr. Johnson, retaliated against him
because of his safety concerns and his insistence on following
safety regulations.
There is no evidence in this case that Mr. Johnson was
involved in the management decision to discharge Mr. Paugh, or
that he had any input into that decision. Although Mr. Johnson
suspended Mr. Paugh, he did so at the direction of Mr. Polce
pending an investigation of Mr. Paugh's encounter with Mr.
Beckman. In addition, the evidence establishes that Mr. Paugh had
no connection with management's prior disciplinary action and
suspension of Mr. Johnson for a safety violation, and there is no
basis for concluding that Mr. Johnson harbored any ill will
toward Mr. Paugh because of his suspension.
Two members of the management team that made the collective
decision to discharge Mr. Paugh (Pritt and Tenney), did not
testify in this case, and there is no evidence that they harbored
any resentment or hostility toward Mr. Paugh.
Page 51
~878
Personnel Director Gearhart, who has known Mr. Paugh since he
first hired him, testified that at the time the decision was made
to discharge Mr. Paugh, he was not aware of any prior safety
complaints by Mr. Paugh, and was not aware of any differences
between Mr. Paugh and Mr. Johnson. This testimony stands
unrebutted, and there is no evidence that Mr. Gearhart harbored
any hostility or ill will toward Mr. Paugh.
With regard to Mr. Polce, the fourth member of the
management team that made the decision to discharge Mr. Paugh,
the record suggests that Mr. Paugh and Mr. Polce have had their
differences with respect to the lack of adequate air ventilation
over the roof-bolting machine while the fan was down. I take note
of the fact that Mr. Paugh's initial complaint does not allege
that Mr. Polce harassed him or was hostile toward him. However,
during the hearing, Mr. Paugh testified to several encounters he
had with Mr. Polce with respect to the lack of adequate
ventilation over the bolting machine while the fan was down, and
Mr. Paugh contended that Mr. Polce insisted that he continue
bolting without air, and that on one occasion, Mr. Polce told him
that if he refused to continue bolting he would either be taken
off the bolter or he could find another job. In addition, Mr.
Paugh contended that on least one occasion Mr. Polce transferred
him off Mr. Johnson's section in order to keep them apart and
because of their personal differences.
Mr. Polce denied that he had numerous conversations with Mr.
Paugh about the lack of adequate air over the bolting machine, or
that Mr. Paugh complained to him about this. Mr. Polce also
denied that Mr. Paugh was transferred from Mr. Johnson's section
because of their differences, and maintained that the transfer of
bolters was a "normal practice" dictated by regular work
requirements. Mr. Polce admitted to one incident where Mr. Paugh
shutdown the bolting machine because he believed the air was
inadequate. Although the record suggests that this encounter may
not have been cordial, the matter was resolved when Mr. Polce
measured the air and the fan came back on and Mr. Paugh resumed
bolting.
Mr. Polce conceded that at the time of the decision to
discharge Mr. Paugh, he was aware of prior problems and conflicts
between Mr. Johnson and Mr. Paugh, and knew of their prior
encounters over the failure by Mr. Paugh to advise Mr. Johnson
that his roof bolter needed repair, and Mr. Paugh's purported
threat to hit Mr. Johnson. Mr. Polce was also aware of Mr.
Paugh's reluctance to continue bolting with insufficient air, and
that this issue was a "problem" between Mr. Johnson and Mr.
Paugh.
Page 52
~879
Although Mr. Polce stated that he considered Mr. Paugh to be a
good worker, he qualified his assessment of his work when he
stated that this was true only when Mr. Paugh did not "drag his
feet" or "take his time when it wasn't needed to be taken." Mr.
Polce confirmed that there were times when he personally observed
that Mr. Paugh would drill unnecessary test holes and install
more bolts than were necessary, that Mr. Beckman had complained
to him about this, and that Mr. Johnson "probably" told him that
Mr. Paugh at times got behind in his work. Mr. Polce also
admitted that he had heard about Mr. Paugh's purported statement
that if he had to work overtime he would make sure that he got
enough to pay for gas. As a matter of fact, Mr. Polce admitted
that as a result of Mr. Beckman's complaints that Mr. Paugh was
slowing his work down on purpose to earn overtime, he instructed
Mr. Johnson to "keep an eye" on the bolting crew on March 5, in
order to address any problems that may arise in this regard.
It would appear from all of the evidence in this case that
Mr. Polce was the only member of the management team that made
the decision to discharge Mr. Paugh who was aware of Mr. Paugh's
prior encounters with Mr. Johnson, and the fact that Mr. Paugh
may have been a "problem employee" in terms of his safety
concerns. Based on this prior knowledge, one may speculate as to
whether it influenced Mr. Polce's input into the decision to
discharge Mr. Paugh. Assuming that it did, I find no evidence of
any harassment of Mr. Paugh by Mr. Polce because of any past
conduct or actions by Mr. Paugh. Mr. Paugh could not establish
any instances or acts of harassment on the part of Mr. Polce. I
conclude that Mr. Paugh's testimony that Mr. Polce threatened to
take him off the bolter and suggested that he find another job if
he did not wish to continue bolting with inadequate air is less
than credible and self serving. There is no evidence that Mr.
Polce ever carried out these purported threats, and Mr. Paugh
admitted that notwithstanding his differences with Mr. Polce over
the lack of adequate air over his bolter, Mr. Polce would
eventually see to it that the air was restored. Further, in each
instance when Mr. Paugh saw fit to discontinue bolting when the
fan was down, he was always assigned other work to do, and there
is no evidence that he ever continued to bolt against his will or
was forced to do so when he believed the air was inadequate. This
fact was corroborated by the testimony of members of his own
bolting crew and others who were aware of Mr. Paugh's reluctance
to continue bolting with insufficient air.
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Although I conclude that Mr. Paugh's assertion that he was at one
time transferred off Mr. Johnson's section because of friction
between the two of them has a ring of truth about it, and find
Mr. Polce's denials to be less than candid, I nonetheless cannot
conclude that such a transfer constituted harassment. In my view,
if Mr. Polce wanted to harass or punish Mr. Paugh for his
reluctance to continue bolting with inadequate air, Mr. Polce
would have kept Mr. Paugh under Mr. Johnson's supervision or
permanently transferred him to less desirable work.
With regard to any hostility on the part of management
towards Mr. Paugh, I find no credible evidence to support any
conclusion that Mr. Gearhart, Mr. Pritt, Mr. Tenney, or Mr. Polce
were hostile towards Mr. Paugh, and there is no evidence that Mr.
Paugh's prior encounters with Mr. Polce and Mr. Johnson were
considered or discussed by management at the time the decision
was made to discharge him. In my view, the only evidence of any
hostility against Mr. Paugh by management focuses on Mr. Johnson.
Notwithstanding Mr. Johnson's assertions that he and Mr.
Johnson "got along fairly well" together, I conclude and find
that the record supports a reasonable inference that there was
open hostility between Mr. Johnson and Mr. Paugh at least during
the last 2 or 3 years that Mr. Paugh worked under Mr. Johnson's
supervision. As for Mr. Johnson, he admitted that at one time he
invited Mr. Paugh to hit him after Mr. Paugh purportedly
threatened to do so. On another occasion, Mr. Johnson admitted
that he became angry at Mr. Paugh when he failed to advise him
that his bolter needed repair. On yet another occasion on March
5, 1986, when Mr. Johnson confronted Mr. Paugh after he shutdown
his bolter, an angry exchange occurred between the two of them,
and I believe that Mr. Johnson's statement to Mr. Paugh to
install the roof bolts "skin to skin" if he so desired was the
result of Mr. Johnson's anger and frustration over what he
obviously believed was a deliberate work slowdown by Mr. Paugh.
This particular exchange was witnessed by Mr. Sisler who
testified that it appeared that Mr. Paugh "was talking back" to
Mr. Johnson. In addition, members of Mr. Paugh's bolting crew and
others who have worked with him and Mr. Johnson corroborated the
fact that Mr. Paugh and Mr. Johnson often argued about Mr.
Paugh's reluctance to bolt with inadequate air.
With regard to Mr. Paugh, although Mr. Johnson described him
as a "quiet" individual, the record supports an equally strong
inference that he too had a temper and was hostile towards Mr.
Johnson. In his initial complaint, Mr. Paugh
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attributed his discharge to his "conflicts" and "conflict of
interest" with Mr. Johnson. Mr. Paugh admitted that "he had been
at odds with Mr. Johnson" since 1984. He admitted that when Mr.
Johnson confronted him about shutting down the bolter on March 5,
he told Mr. Johnson "you cover your ass, I'll cover mine." When
asked whether Mr. Johnson had ever invited him to hit him, Mr.
Paugh stated "He could have have. He's a good instigator." Mr.
Paugh also admitted to referring to Mr. Beckman as "a cry baby,"
and that it was possible that he referred to him as "a cry baby
son of a bitch." Mr. Polce testified that during his discussion
with Mr. Paugh when his bolter was shut off, Mr. Paugh remarked
to him "what are you getting all huffy about." Mr. Lucas
testified to a prior fight he had with Mr. Paugh, and that
although Mr. Paugh described the incident as "horseplay," he
admitted that they "wrestled." Taken as a whole, all of these
prior incidents and encounters lead me to conclude that Mr. Paugh
had a temper equally as volatile as Mr. Johnson, and that a
serious personality conflict existed between the two of them.
Although I have concluded that a state of hostility existed
between Mr. Paugh and Mr. Johnson prior to Mr. Paugh's discharge,
as stated earlier, there is no evidence that Mr. Johnson
participated in the management decision to discharge Mr. Paugh.
While it is true that Mr. Johnson initially informed Mr. Polce
that Mr. Beckman had told him that Mr. Paugh hit him, and
repeated Mr. Beckman's allegation when he was subsequently
interviewed by the management team during its investigation of
the incident, but may not have informed them of Mr. Paugh's
denials, I cannot conclude that Mr. Johnson exercised any
prejudicial influence on the management team during its
deliberations. In short, I find no evidence to establish any
nexus between Mr. Johnson's hostility towards Mr. Paugh and his
subsequent discharge.
Mr. Polce and Mr. Gearhart confirmed that the collective
decision to discharge Mr. Paugh for fighting was made after
consideration of all of the information provided by the
principals, as well as the witnesses to the altercation, and that
all versions of the incident were considered, including Mr.
Paugh's. I find Mr. Polce's testimony that Mr. Paugh's prior
encounters with Mr. Johnson were not discussed by management when
it made the decision to discharge Mr. Paugh to be credible. Mr.
Gearhart's unrebutted credible testimony reflects that at the
time the decision was made to discharge Mr. Paugh, management was
unaware of Mr. Paugh's prior fight with Mr. Lucas, and Mr.
Gearhart had no knowledge of any safety complaints by Mr. Paugh
or his prior encounters with Mr. Johnson. Under the
circumstances, I find no credible
Page 55
~882
basis for concluding that Mr. Johnson's hostility had any impact
on the decision to discharge Mr. Paugh, and find no evidence to
establish any nexus between Mr. Johnson's hostility and Mr.
Paugh's discharge.
Respondent's Motivation for Discharging Mr. Paugh
The crux of Mr. Paugh's case is his claim that respondent's
mine management seized upon the appearance of a fight between him
and Mr. Beckman on March 5, 1986, as an excuse for discharging
him because of his protected activities in insisting on
compliance with the ventilation and roof support requirements of
the law, his complaints in this regard, and his reluctance or
refusal to continue roof bolting when he believed that the air
over his bolter was inadequate. In short, Mr. Paugh views
management's conclusion that he engaged in a fight with Mr.
Beckman as a pretexual excuse to get rid of him because of his
safety concerns.
In support of his pretexual discharge argument, Mr. Paugh
relies on a statement by personnel director Gearhart to MSHA's
special investigator during the post-discharge investigation of
Mr. Paugh's complaint in which Mr. Gearhart states that Mr. Paugh
"had also started a fight with another employee four or five
years ago," (Exhibit CÄ4; Exhibit 5Ä1). Conceding that neither
Mr. Gearhart or the management team which made the decision to
discharge him were aware of this prior incident at the time the
decision was made to discharge him, Mr. Paugh nonetheless argues
that Mr. Gearhart made the statement to make it appear that Mr.
Paugh had a history of fighting, thereby lending credibility to
management's discharge decision. Further, during the course of
the hearing, Mr. Paugh's counsel took issue with Mr. Gearhart's
further statement to MSHA that "Both Earl Sisler and Harry
Beckman have proved in Mettiki's experience, to be among the most
credible members of it's hourly work force." Counsel suggested
that this statement by Mr. Gearhart was a self-serving
after-the-fact declaration to support management's belief that
Mr. Sisler's and Mr. Beckman's version of the altercation which
took place between Mr. Paugh and Mr. Beckman was true, while Mr.
Paugh's version was a lie.
It seems absolutely clear to me from the evidence in this
case that at the time management made the decision to discharge
Mr. Paugh, none of the participants in that decision had any
knowledge of Mr. Paugh's prior purported fight with Mr. Lucas.
Under the circumstances, I find no basis for concluding that Mr.
Gearhart's post-discharge statement to MSHA prejudiced Mr. Paugh
or adversely impacted in any way on
Page 56
~883
management's decision to discharge him. It would appear that Mr.
Gearhart's statement was solicited by the special investigator
during his fact-finding investigation. While it may be true that
Mr. Gearhart's statement concerning Mr. Paugh's involvement in a
prior fight may have in some way impacted on MSHA's determination
not to pursue his case further, I find no basis for concluding
that management relied on that prior incident to support its
discharge decision. Mr. Paugh's complaint before this Commission
and me has been adjudicated de novo, without regard as to what
may have motivated MSHA not to initially pursue Mr. Paugh's
complaint further.
Since the merits of Mr. Paugh's complaint is before me de
novo, the respondent is free to introduce relevant and material
evidence of Mr. Paugh's alleged propensity for fighting in
further support of any conclusion that a fight more than likely
took place on March 5, 1986. The respondent has done this through
the testimony of Mr. Lucas, and as the trier of fact, I am free
to assess Mr. Lucas' credibility, and to make my own independent
judgment on this issue. The same can be said of the testimony of
Mr. Sisler and Mr. Beckman. Having viewed them during their
testimony at the hearing, I am free to assess their credibility
independent of Mr. Gearhart's views as to their credibility and
veracity. However, management was free to assess the credibility
of Mr. Beckman and Mr. Sisler during its investigation of the
March 5, 1986, fight in question, and as confirmed by Mr.
Gearhart, management chose to believe Mr. Beckman's and Mr.
Sisler's version of that incident, and rejected Mr. Paugh's
version that he simply placed his hand on Mr. Beckman's shoulder
while attempting to get his attention in order to engage him in a
conversation.
The pivotal issue in this case is whether or not the
respondent has established through a preponderance of the
credible evidence and testimony that at the time management made
the decision to discharge Mr. Paugh, it had reasonable grounds to
believe that Mr. Paugh and Mr. Beckman engaged in a fight on
March 5, 1986, and if so, whether or not its conclusion that Mr.
Paugh was the aggressor, thus warranting his discharge for
violating a company rule against fighting, is likewise reasonably
supportable by a preponderance of the credible testimony and
evidence.
Respondent's Employee Handbook Exhibit CÄ4, 9Ä2), at page
26, states that "No horseplay, fighting or other unsafe physical
acts will be tolerated on Company property." Page 18 of the
handbook, which explains in part major employee offenses that may
result in a potential discharge of an
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employee specifically provides for discharge for "Violating
safety rules or special hazard procedures, fighting or other acts
which may have a serious affect on safety or continuity of the
operation" (emphasis added).
The record establishes that the decision to discharge Mr.
Paugh was made by management after an investigation of the
fighting incident. The investigation consisted of interviews
conducted by four members of an ad hoc management team consisting
of mine foreman Polce, personnel director Gearhart, general mine
superintendent Billy Pritt, and mine superintendent Paul Tenney.
The team conducted interviews on Friday, March 7, 1986, and they
interviewed Mr. Paugh, Mr. Johnson, Mr. Beckman, and Mr. Sisler,
separately and out of each other's presence. Mr. Polce and Mr.
Gearhart, were the only members of the management team who
testified in this case. They confirmed that the decision to
discharge Mr. Paugh was a collective decision made by the team.
On the basis of the information developed during the interviews,
the team concluded that Mr. Paugh and Mr. Beckman got into a
fight on March 5, 1986, and that Mr. Paugh precipitated the fight
and was the aggressor. Since fighting is contrary to company
policy and is an offense which may result in the discharge of the
offending employee, the decision was made to discharge Mr. Paugh
for violating this policy, and Mr. Polce informed Mr. Paugh of
the decision on Monday, March 10, 1986.
Mr. Beckman testified that as he started to tram his bolting
machine, Mr. Paugh approached him from behind, called him "a cry
baby son of a bitch," and either hit or pushed him from behind
into the moving machine. Mr. Beckman further testified that when
he was pushed into the machine, his hat flew off his head, and
his chest hit the machine. Although Mr. Beckman confirmed that no
blows were exchanged, and responded "No" when asked whether he
and Mr. Paugh engaged in a "fight," he confirmed that he defended
himself by grabbing Mr. Paugh's arms as he started to lift them,
and that he did so because he believed that Mr. Paugh would try
to hit him.
Mr. Sisler, who was eye witness to the encounter between Mr.
Paugh and Mr. Beckman, testified that as Mr. Paugh passed by him
on his way to where Mr. Beckman was working at more than a normal
pace, Mr. Paugh appeared to be upset and stated to Mr. Sisler as
he passed him that Mr. Beckman was "a damn cry baby." Mr. Sisler
testified that from his vantage point, his view was partially
blocked by the machine, and he could only see Mr. Paugh and Mr.
Beckman from the waist up. Although he observed no punches being
exchanged, and did not actually see Mr. Paugh push Mr. Beckman,
he did see Mr. Beckman's hat
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fly off his head, and he concluded that Mr. Beckman had either
been pushed into the machine by Mr. Paugh or that he "flinched,"
as if being caught by surprise by Mr. Paugh. After Mr. Beckman's
hat flew off, Mr. Sisler saw Mr. Beckman grab Mr. Paugh by the
wrists and hold him against the rib.
Mr. Lucas, who was present during the shift when the
encounter between Mr. Paugh and Mr. Beckman took place, was not
interviewed by the management team. Mr. Lucas confirmed that
while he did not observe the incident, after learning that Mr.
Johnson had taken Mr. Beckman and Mr. Paugh out of the mine, he
asked Mr. Johnson for an explanation, and Mr. Johnson informed
him that "It's went too far this time," and that he had taken
them out of the mine because he was doing his job.
Mr. Lucas testified that after Mr. Johnson took Mr. Paugh
and Mr. Beckman out of the mine, he asked Mr. Sisler about the
incident, and Mr. Sisler told him that he observed that Mr.
Beckman had Mr. Paugh against the rib "slugging him." When asked
to explain Mr. Lucas' statement, Mr. Sisler stated that in reply
to a question by Mr. Lucas as to whether any punches had been
thrown, he replied in the affirmative, but did so more or less as
a joke because Mr. Lucas initiated the conversation, and Mr.
Sisler did not believe it was any of his business. Mr. Sisler
further explained that he meant nothing by the remark and did not
wish to see anyone get into any trouble. He reiterated that he
saw no punches thrown between Mr. Paugh and Mr. Beckman.
Mr. Beckman and Mr. Sisler confirmed that when they were
interviewed by the management team during its investigation of
the incident in question, the information they gave with respect
to what happened during the encounter between Mr. Paugh and Mr.
Beckman was consistent with their testimony in this case. Having
viewed them on the stand during their testimony in this case, I
find Mr. Beckman and Mr. Sisler to be credible witnesses.
Mr. Polce testified that while he took no notes during the
management interviews conducted as part of the investigation of
the fighting incident, he specifically recalled Mr. Sisler's
statements that Mr. Paugh had referred to Mr. Beckman as a "cry
baby, bastard, or something" and that he saw Mr. Beckman's hat
fly off and observed Mr. Beckman turn around to protect himself
by grabbing Mr. Paugh's arms. Mr. Polce also recalled Mr.
Beckman's statements that Mr. Paugh had pushed him into the
bolting machine while he was tramming it and that his hat was
knocked off. Mr. Polce
Page 59
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testified that it made no difference to him whether Mr. Paugh
"hit" Mr. Beckman from the back or "pushed" him from the back. As
far as he was concerned, if Mr. Paugh was the aggressor and came
around behind Mr. Beckman and pushed him into the machine "that's
it" (Tr. 150). Mr. Polce confirmed that all versions of the
incident including Mr. Paugh's, were considered by management
during its investigation, and it was concluded that Mr. Beckman
was not the aggressor.
Mr. Gearhart confirmed that management considered all
versions of the incident, including Mr. Paugh's, but accepted Mr.
Beckman's and Mr. Sisler's version of the event. Mr. Gearhart
testified that considering all of the circumstances, including
the fact that Mr. Beckman's hat flew off, that he was either hit
or pushed into the bolter, the fact that Mr. Paugh was angry and
cursed Mr. Beckman, and the fact that Mr. Beckman grabbed Mr.
Paugh to restrain him, management concluded that a fight had
taken place between Mr. Paugh and Mr. Beckman, and that Mr. Paugh
was the aggressor. It was also concluded that Mr. Beckman had
acted properly by not returning any blows and by seeking out his
foreman to report the matter. Mr. Gearhart further confirmed that
he personally found Mr. Beckman's version of the incident to be
more credible than Mr. Paugh's, and he believed that Mr. Paugh
lied when he stated during his interview that he went around to
Mr. Beckman's side of the bolting machine simply to speak with
him, and that he merely placed his hand on Mr. Beckman's
shoulder.
In his posthearing brief filed on Mr. Paugh's behalf,
counsel asserts that the respondent seized upon the appearance of
a fight between Mr. Paugh and Mr. Beckman to support the
discharge of Mr. Paugh. This suggests that either a fight did not
take place, or that the respondent has made it appear that an
otherwise innocuous disagreement between Mr. Beckman and Mr.
Paugh was a fight in order to conceal its true motive in
discharging Mr. Paugh because of his protected safety activities.
In this regard, during the course of the hearing, Mr. Paugh's
counsel made reference to a finding by the State of Maryland
Department of Unemployment Insurance in connection with Mr.
Paugh's unemployment benefits claim that the information provided
by the respondent during the course of the processing of Mr.
Paugh's claim was insufficient to substantiate the alleged fight.
That "finding" is stated on a Notice of Benefit Determination
form dated March 20, 1986 (Exhibit CÄ4, 8Ä1).
Mr. Gearhart conceded that he was contacted by a state
unemployment agency representative, and confirmed that the
Page 60
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respondent declined to appear at any state proceeding challenging
Mr. Paugh's unemployment claim. Mr. Gearhart confirmed that he
spoke with the representative over the telephone, but denied that
the representative expressed any opinion that the incident, as
described by Mr. Gearhart over the telephone, "did not sound like
a fight." Since the representative did not testify in this case,
Mr. Gearhart's testimony stands unrebutted. With regard to the
state unemployment compensation "finding," aside from the fact
that it is not binding on me, I find no evidentiary support for
the conclusion reached by the state representative and have given
it no weight. Further, I find no basis for drawing any adverse
inferences against the respondent simply because it declined to
participate in the unemployment proceeding.
The evidence in this case establishes that immediately prior
to the confrontation between Mr. Paugh and Mr. Beckman, Mr. Paugh
and his section foreman Johnson engaged in a heated discussion
over the spacing of the roof bolts, and Mr. Paugh was angry at
Mr. Beckman for complaining to Mr. Johnson about his work. During
his conversation with Mr. Johnson, Mr. Paugh referred to Mr.
Beckman as "a damn cry baby." As soon as Mr. Johnson departed,
Mr. Paugh lost no time in getting to Mr. Beckman, and Mr. Paugh
admitted that he "was in a hurry" to get to Mr. Beckman. Although
Mr. Paugh could not recall stating to Mr. Beckman "I'm going to
get you, you son of a bitch," Mr. Paugh admitted that it was
possible that he did make the statement, and that it was also
possible that he referred to Mr. Beckman as "a cry baby" or
"crazy." Mr. Paugh further admitted that in his earlier
discussion with Mr. Johnson and in reference to Mr. Beckman, he
stated to Mr. Johnson "what's the problem? Is this cry baby
complaining about me?" Taking all of this into consideration, I
conclude and find that Mr. Paugh was angry with Mr. Beckman, and
that when he went over to Mr. Beckman's side of the bolting
machine he acted as the aggressor, and did so with the specific
intent to confront Mr. Beckman about his complaints to Mr.
Johnson. I do not believe Mr. Paugh's assertion that he went
around to Mr. Beckman's side of the bolter simply to engage him
in a conversation over the spacing of the roof bolts or the
positioning of the roof-bolting machine.
As stated earlier, the issue regarding the encounter between
Mr. Paugh and Mr. Beckman, is whether or not the management team
which concluded that a fight had taken place had a reasonable
basis for making that conclusion. I take note of the fact that
during the course of the hearing, Mr. Paugh's counsel observed
and seemingly agreed with the testimony that Mr. Paugh went
around to Mr. Beckman's side of the bolter;
Page 61
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that "something happened between Mr. Paugh and Mr. Beckman;" that
"there was a scuffle;" and that "some sort of altercation took
place" (Tr. 71). Counsel's observations are consistent with the
testimony of Mr. Beckman and Mr. Sisler, which I find credible,
and inconsistent with Mr. Paugh's assertion that he merely laid
his hand on Mr. Beckman's shoulder to get his attention, which I
find less than credible.
The respondent's employee handbook does not define the term
"fight" or "fighting." However, Webster's New Collegiate
Dictionary defines the noun "fight" in part as "a hostile
encounter," "a verbal disagreement," "argument." Black's Law
Dictionary, 1968 Edition, defines the term "fight" in part as
follows: "An encounter, with blows or other personal violence,
between two persons . . . . The term does not necessarily imply
that both parties should give and take blows. It is sufficient
that they voluntarily put their bodies in position with that
intent."
I take note of the fact that the respondent's safety rules
and employee rules of conduct prohibits fighting or other unsafe
physical acts or other acts which may have a serious affect on
safety. The parties do not dispute the fact that fighting in an
underground mine, particularly around moving machinery and
equipment, could reasonably be expected to result in serious
consequences to miners who engage in such conduct. In my view,
the fact that the participants do not draw blood or strike or
exchange blows with each other is irrelevant. I conclude that any
encounters of the kind which has been described in this case, in
which one party acts as the aggressor with the intent to inflict
harm on the other party by either intentionally or
unintentionally pushing him into a piece of moving equipment, or
aggressively accosts him by placing his hands on him in such a
manner as to cause him to fall against a piece of moving
equipment, or exposes him to that potential hazard, constitutes
an act of fighting, as well as an unsafe physical act affecting
the safety of the miner who is on the receiving end of such an
act and who did not act as the aggressor or otherwise initiate
the encounter.
In view of the foregoing findings and conclusions, and after
careful consideration of all of the evidence adduced in this
case, I conclude and find that the respondent's decision to
discharge Mr. Paugh, as articulated by the management team that
made that decision on the basis of the information developed
during the course of its investigation, was based solely on
management's reasonable and plausible belief that Mr. Paugh had
acted as the aggressor and had engaged Mr. Beckman in a fight. I
find no credible basis for concluding that at the
Page 62
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time management made the decision to discharge Mr. Paugh, it was
otherwise predisposed to discharge Mr. Paugh because of his
safety concerns, or because of any protected safety activities on
his part. To the contrary, I conclude that the respondent has
established a believable and plausible legitimate reason and
cause to support the discharge, that it was justified in taking
the disciplinary action as a reasonable exercise of its
legitimate interests in disciplining its own work force, and that
in doing so it was not motivated by Mr. Paugh's protected safety
activities.
CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and after
careful consideration of all of the credible evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a prima facie case of
discrimination on the part of the respondent. Accordingly, the
complaint IS DISMISSED, and the complainant's claims for relief
ARE DENIED.
The respondent's counterclaim for costs and attorneys fees
incurred in its defense of Mr. Paugh's complaint on the ground
that Mr. Paugh intentionally and willfully omitted from his
original complaint the fact that he had been discharged by the
respondent IS DENIED.
George A. Koutras
Administrative Law Judge
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