**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949 

 

 
| SECRETARY  OF LABOR,    

MINE  SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of JUAN SMITHERMAN,        

        Complainant

 

                        v.

 

WARRIOR  MET COAL MINING, LLC,

                        Respondent                                                               |   |   | DISCRIMINATION  PROCEEDING

 

Docket  No. SE 2021-0153

MSHA  Case No. SE-MD-2021-03

 

 

 

 

Mine  I.D. No. 01-01247

Mine:  Mine No. 4 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**DECISION ON LIABILITY******

 

 

Appearances: C. Renita Hollins,Esq., for the Department of Labor, Timothy J. Baker, Esq., for the Complainant,and Brock Phillips Esq. and Allen B. “Josh” Bennett,Esq., for the Respondent

 

Before: JudgeWilliam B. Moran

 

This case isbefore the Court upon a complaint of discrimination under Section 105(c)(1) ofthe Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(1) (“MineAct” or “Act”). At issue is whether Complainant Juan Smitherman (“Smitherman”or “Complainant”) was wrongfully terminated by Respondent Warrior Met Coal Mining,LLC., in retaliation for exercising his rights under the Act by raising safetyissues with his supervisor.[1]

 

For the reasonswhich follow, the Court finds that Mr. Smitherman was wrongfully terminated forexercising those rights; that Smitherman would not have been fired but forexercising those rights and that the Respondent failed to establish anaffirmative defense. 

**I.              ****Findings of Fact******[2]******withDiscussion**

** **

*Testimony of Zachary Salyers, foreman of the No.4 section and Complainant’ssupervisor*

** **

Testimony began with theSecretary calling Zachary Salyers, section foreman and Complainant JuanSmitherman’s supervisor on the No. 4 Section since January 2021, to the standas a hostile witness. Vol. 1, Tr. 37. Foreman Salyers agreed that on February2, 2021, he and Smitherman, a roof bolter, had a disagreement about whether itwas safe to roof bolt without dust bags. Vol. 1, Tr. 44, 100. Salyers, thoughdisagreeing with Smitherman’s view about the requirement to use dust bags, stated that hetold Smitherman he did not have to bolt if he did not have dust bags. Vol. 1, Tr.45. He also maintained that Smitherman never made any other safety complaintsto him. Vol. 1, Tr 48. Salyers stated that a monthelapsed between the dust bag incident and a subsequent matter, which involved aventilation fly pad. Vol. 1, Tr. 101. Fly pads control ventilation, as they serveas “ventilation controls to force the air to ventilate working areas, faceareas, things of that nature.” Vol. 1, Tr. 49.[3]

 

By his own admission, Salyers confirmedthat, on March 1, 2021, during the owl shift (i.e., thenight shift) from February 28-March 1, two roof bolters on his section, Jonathan Banks and Steven Volts, made a safety complaintto him – namely that fly pads had not been installed in an entry. Vol.1, Tr. 49, 149. Of significance, Salyers admitted that as foreman *it is hisresponsibility* to ensure that curtains or fly pads are installed or inplace before mining. Vol. 1, Tr. 52. Salyers claimed that he did not know that ComplainantSmitherman had any involvement in Banks and Volts raising the fly pads issuewith him, and denied suspecting Smitherman broughtthe matter to the attention of Banks and Volts. Vol. 1, Tr. 53. TheCourt does not find this assertion by Salyers credible – while there is nodirect evidence of his knowledge, Salyers admitted that Smitherman was on thesection the night the issue arose and, given the evidence in the record as awhole of the friction between the Complainant and him, it is ineluctable that Salyersmade the logical connection between Smitherman and his fellow bolters’complaints. Smitherman was, after all, the senior bolter onthe section, working with Banks and Volts.

Following the fly pad matter, Salyersrecounted that Smitherman came to him before the beginning of the followingshift (March 1, for the March 1-2 shift) and informed Salyers that he did notwant to continue to work on his section and wanted to betransferred to the other side of the mine. Vol. 1, Tr. 54. Salyers denied thatSmitherman gave a reason for the request.[4] Vol. 1, Tr. 54, 140-141. Salyerscontacted his shift foreman, J.D. Earnest, about Smitherman’s request to bemoved, and Earnest told him to assign Smitherman to the Lo-Trac, which is a small, compact, diesel-poweredforklift, about 5 feet wide and 12 to 15 feet long, and used to bring suppliesto the section. Vol. 1, Tr. 55-56, 142. 

 

At about 11:45 p.m. that evening, whichwas early in the shift, Salyers instructed Smithermanto bring supplies to the section. Vol. 1, Tr. 59. As noted above, Smithermanwas the senior roof bolter on the shift at the time he was assigned to theLo-Trac. Vol. 1, Tr. 57. Salyers stated that Smitherman got on the Lo-Trac, butthat he did not see him again until 3 a.m., overthree hours later. Vol. 1, Tr. 60-61. Pressed as to what Smitherman wasdoing between 11:45 p.m. and 3 a.m., Salyers admitted he had no information asto what Smitherman was doing during that time. Vol. 1, Tr. 63-64. Despite notseeing Smitherman during that time period, Salyers defended his conclusion thatSmitherman did not bring up supplies because he did not see “all the water linethat was supposed to [have been] brought up.” Vol. 1, Tr. 60-61. Salyers addedthat around 6 or 6:30 a.m. when he next saw Smitherman “there was only 2 poundsof block and 1 pound of rock dust brought up.” Vol. 1, Tr. 61-62, 65-66. Whenasked, Salyers admitted he did not tell Smitherman the exact number of suppliesto bring up, but when he saw him at 3 a.m., he was not pleased at the speed withwhich Smitherman was bringing up supplies. Vol. 1, Tr. 65. However, Salyers didnot tell Smitherman at the time that he was not pleased with his progress,testifying that he told Smitherman “we would get away from the water line since we can’t get it done and we would work towardsour block,” Vol. 1, Tr. 65-66. 

 

The Court has reason to doubtSalyers’ version of the work Smitherman accomplished that evening. Salyers gave Smithermaninstructions around 11:45 p.m., but did not see him again until 3 a.m. andafter that did not see him until 6 or 6:30 a.m., the time of their encounter inthe supply hole. Vol. 1, Tr. 59, 60-61, 66. With little personal contact, Salyers’judgment about Smitherman’s efforts was based on deduction, not observation,which impeded his conclusion as to whether Smitherman was “loafing” or makingan effort to complete his assigned tasks.

 

When asked about hisinstructions to Smitherman to bring a bundle[5] of water pipes, Salyers agreed thathe told Smitherman to look in different locations for the pipes. Vol. 1, Tr 80.Salyers also admittedthat Smitherman later informed him that he could notfind the pipes. Vol. 1, Tr. 80-81.Salyers never found the pipes either, informing the Courtthat he never looked for them. Vol. 1, Tr. 81. Salyers confirmed that after theshift had ended the pipes were found in the supply hole; Salyers did not saywho found them, and counsel did not ask. Vol. 1, Tr. 81-82. However, whenpressed by the Court to directly answer the question, Salyers revealed thathe did not see the water pipes in the supply hole. Vol.1, Tr. 83.

 

The Court notes thatthroughout his testimony Salyers exhibited reluctance to answer straightforwardquestions, on subjects including but not limited to his role in “writing up”employees, his instructions to Smitherman about bringing up supplies on the Lo-Trac,and his reasoning behind his conclusion that Smitherman had not brought upsupplies, answering only when repeatedly pressed on the issue by opposingcounsel or, sometimes, by the Court itself. Vol. 1, Tr. 60-61, 69-70, 82-83. 

 

As noted above, Salyers testified that henext saw Smitherman sometime between 6 and 6:30 a.m., asserting that theComplainant was sleeping on the Lo-Trac at that time. Vol. 1, Tr. 67. According to Salyers, Smitherman was on the Lo-Tracin the supply hole, with the Lo-Trac’s lights and his miner’s cap light bothturned off. *Id.*No one else was then present in the supply hole, asidefrom Salyers and Smitherman. Vol. 1, Tr. 97 Therefore, as discussedfurther, *infra,*there were only but two individuals involved in thisencounter; Salyers and Smitherman, and they presented very different accountsof the event. 

 

According to Salyers,Smitherman told him he was taking a break; Salyers conceded that taking a breakwouldbe permissible “if he had just performed some type of strenuous task and hewanted like, say, a water break or catch-his-breath break.” Vol. 1, Tr. 68, 79.Yet, when asked if he confronted Smitherman over this, Salyers answered that he“didn’t tell [Smitherman that] he was taking an unauthorized break.” Vol. 1, Tr.67-68. Nor, when Salyers came upon Smitherman, did he use the word “sleeping”when speaking to him. Vol. 1, Tr. 71. Salyers denied that Smitherman told himhe had just completed a strenuous task, namely loading a rock duster. Although Salyersagreed that Smitherman had put a crib under the track, he did not consider thattask to be strenuous. Vol. 1, Tr. 69. 

 

Salyers then informed Smitherman that he was going to write him up. Vol. 1, Tr. 69. Salyersclarified in his testimony that he does not actually do the write-up. Instead,he passed on his account of the event to those above him and those individualscreate the write-up. To that end, Salyers called Pete Richardson, the Number 4Section coordinator, and his direct supervisor, and informed him that he foundSmitherman asleep on the Lo-Trac and that he should be written up or firedbecause of that. Vol. 1, Tr. 36, 97. After the end of the shift, Salyers metwith Sherry Sterling, Human Resources manager, and JasonLee, the general mine foreman. Vol. 1, Tr. 70-71. Salyers recalled tellingSterling and Lee that Smitherman was sleeping. Vol. 1, Tr. 71. Sterlinginstructed Salyers to make a written statement about the incident. Vol. 1, Tr.72. The statement, written on March 2, 2021, consists of one, handwritten,page.[6]Ex P. 38, Vol. 1, Tr. 73.

Aspects about Salyers’ statement aredisconcerting. Agreeing that his statement was written close in time to theevent in issue, he admitted that the word “sleeping” is not in it. Vol. 1, Tr.77. At odds with the foreman’s claim, his statement includes that Smithermantold Salyers he was taking a break. Vol. 1, Tr. 78. Given that, one wouldexpect Salyers’ statement to have included his contradictory claim. It is notedthat after giving his statement to human resources,no one from Warrior Met spoke to Salyers about the incident again. Vol. 1, Tr.98.

 

In response to questions fromcounsel for the Complainant, Salyers acknowledged that as section foreman it ishis goal to produce as much coal as possible. Vol. 1, Tr. 89-90. Salyersinformed that he receives bonuses based on his job performance, which are basedon production and safety statistics. Tr. 90-91. However, when asked, Salyersoutright denied receiving any information or statistics from Warrior Met aboutthe amount of production done on his shift. Vol. 1, Tr. 90.

* *

* *

*Testimony of Complainant JuanSmitherman*

 

The Court notes thatComplainant’s original MSHA Complaint erroneously reported that the events inquestion occurred on the March 7-8, 2021 owl shift, when in fact they occurredon the March 1-2, 2021 shift. Both parties agree March 1-2, 2021 is the correctdate, and the matter is not disputed. Vol. 1, Tr.189-90, 201.

 

 

 

 

 

 

 

The Secretary then called theComplainant, Juan Smitherman.[7]The Complainant has over~~~~19 yearsof experience as a miner. Vol. 1, Tr. 8. At the timeof his termination, Smitherman was the senior roof bolter at the Number 4 Minein Brookwood, Alabama, working on the Number 4 section under the directsupervision of Zachary Salyers. Vol. 1, Tr. 16, 57. Smitherman and Salyers workthe owl shift at the mine, which begins at 10:30 p.m. and ends when thenext shift arrives, at about 7:30 a.m. Vol. 1, Tr 153. Smitherman had worked asa roof bolter for several years before his employment with Warrior Met Coal,working for Jim Walters mining before it was boughtout by Respondent. Vol. 1, Tr. 113. 

 

Warrior Met Number 4 mine is avery gassy mine,meaning it emits large quantities of methane and there are ignitions at themine. Vol. 1, Tr. 118. The gassy nature of the mine is not in dispute, as Salyers,too, concurred with that description and, as noted *infra*, Section 103(i)of the Mine Act requires the Secretary to provide one spot inspection everyfive days for mines that liberate “excessive quantities” of methane, which ismore than one million cubic feet of methane during a 24-hour period. 30 U.S.C.§ 813(i). Vol. 1, Tr. 36-37. Smitherman knows of such ignitions at the mine andexperienced two of them himself. Vol. 1, Tr. 118-119. Relating one suchincident, he noted an event when a spark from roof bolting set the “wholeceiling . . . on fire in a matter of a split second.” Vol. 1, Tr. 119. Fireextinguishers were required to put the fire out. Vol.1, Tr. 120.

 

Mr. Smitherman acknowledgedthat hewas suspended for sleeping on the job some three years earlier, on February 2,2018. He spoke of the incident, noting that at that time, it was during thelast hour of the shift, around 6 a.m., when he and hispartner “were finishing up for the day, and we put our tools up and sat at the little break table and waited until the shift wasover with. And we were just talking, and it got quiet, and we both dozed off.” Vol.1, Tr. 122, 128. Smitherman and the fellow miner were suspended for 30 days.Ex. P 14, Vol. 1, Tr 124. The record of disciplinary action was admitted asExhibit P 14. Vol. 1, Tr. 126. Smitherman stated that he has never slept on thejob since that event. Vol. 1, Tr. 127.

 

Salyers became Smitherman’ssupervisor around January 2021; and the Complainant had already been working on the section prior to Salyers’arrival. Vol. 1, Tr. 129. Smitherman described having “several disagreements”with Salyers “as far as how safety goes in the section.” *Id.*The Courtfinds this accounting by the Complainant was credible and as such it isinformative about the atmosphere between the two men prior to the incident inissue. Smitherman characterized the issues between him and Salyers as“generally, [Salyers] didn’t make sure that the ventilation was correct whenpeople were doing different jobs on the section, and he didn’t put out theadequate amount of rock dust in the returns to keep the– in case of an explosion to keep the – the—the intensity of an explosiondown.” Vol. 1, Tr. 129-130.

 

Smitherman recalled his disagreement with Salyers about using dust bags on the roofbolter differently.[8] Vol. 1, Tr. 130. Hisrecollection was telling Salyers “the roof bolterdidn’t have any dust bags and that there wasn’t any on the section, and I toldhim that I wasn’t going to run it without the dust bags because, you know, it’sagainst company policy.” Vol. 1, Tr. 131. Smitherman’s basis for the companypolicy claim was that he was aware of Warrior Met receiving a citation fromMSHA about dust on the section and dust behind the roof bolter filters. *Id.*Smithermanrecounted that to rectify the violation, “they had us sign a form saying thatwe’re going to change that filter at the beginning of each shift and we’re not to run the roof bolter without thefilter.” *Id.*The dust bags prevent dust from getting behind the filterand contain the dust in the dust box, to prevent it from becoming airborne when the box is emptied.[9]*Id.*Salyers disagreed, believing Smitherman could run the bolter without thedust bags. Smithermantook issue with Salyers’ view, stating “[a]nd I told him, No, you’rewrong. I said, I’m not supposed to run that without a dust bag.” Vol. 1, Tr.133. Salyers then left to consult his supervisor. When he returned, accordingto Smitherman, “[Salyers] didn’t say anything else tome, but he got the other two roof bolters and talked to them and see if theywere willing to run it without the dust bag, and they did run it without thedust bag.” *Id.*Smitherman asserted that he customarily used dust bagsbefore Salyers became his supervisor. Vol. 1, Tr. 136. After the end of hisshift, Smitherman went to the safety department and talked with the unionsafety representative and the company safety foreman, “and they told me that –that I was right and I shouldn’t operate it without the dust bag. They asked mewho told – who told me to run it, and I told them I wasn’t trying to getanybody in trouble. And then they said, the man I told him – and I told him[Salyers] told [me] to do it. And he said that he’d have a talk with [Salyers]”Vol. 1, Tr. 136-137.

 

Complainant Smitherman recounted some other safety issues that he raised to Salyers beforeFebruary 28, 2021. Vol. 1, Tr. 137. In one incident, the Complainant found aminer working, cutting at the face, with no slider curtain. He broughtthe issue to Salyers’ attention and, by his account, Salyers became upset withhim, asking “why [Smitherman] got a problem with everything.” Vol. 1, Tr. 139.Smitherman continued, “we just exchanged words, and it got loud. And then itcalmed down after a little while.” *Id.*The Complainant also testified toa second safety issue instance, when he found a slider curtain down on theground when it was supposed to be hung up; he also brought the issue to Salyers. Vol. 1, Tr. 140-141.

 

A third safety disagreement was recounted bythe Complainant. It involved Smitherman’s assertion that insufficient rock dustwas being laid down in the returns. Smithermanexplained that five bags of rock dust are supposed to be applied to reduce boththe risk of an explosion occurring and the extent of any explosion that mayoccur. Vol. 1, Tr. 141. Salyers, Smitherman recounted, was “supposed to putfive bags down – bags of it down to make sure there’s enough coal-to-dustratio. And sometimes [Salyers] would put one bag out, or sometimes he wouldn’tput any bags down, and he’d take – he’d get the service team to bring . . . thescoop back there and hand dust it with a bantam duster. I mean, he would just –regularly didn’t do what he was supposed to do.” Vol. 1, Tr. 142. WhenSmitherman raised the issue with him, Salyers responded “there was enough dustback there.” Vol. 1, Tr. 143. Smitherman related these instances to others inthe section, but did not convey those concerns beyond those miners. *Id.*

 

Regarding the February 28,2021 fly pad incident, Smitherman recalled on that day, while on his way to lunch, noticing a face where, following a cut, “there was no dropboard up, there were no fly pads on the drop board, there was no curtain lineestablished, and there was no slider. And this was the second cut into theslant.”[10] Vol. 1, Tr 145. 

 

Smitherman informed:

[T]his was thesecond cut, so they were about 40 feet in. And so they’re supposed to establishthat curtain line from . . . the drop board all the way to within 10 foot ofthat face when they start to cut. And none of that was done; none of it. 

 

And then you'resupposed to hang up – as the miner advances, he – into the coal cuts it deeperand deeper, he’s supposed to have a slide up there that extends out with him sohe can constantly stay within 10 foot of that face when he slides the curtainout. That wasn’t out. It was on the foot – it was on the ground.” 

 

And I saw that . .. they were backing the roof bolter out of number 1, which was the next entry,andthey were backing it out to put this – thedrop board up, which should’ve been done before they even made the cut. Theymade the cut out of turn. Normally, you do all that before you make that secondcut. All that should’ve already been established. 

 

But [Salyers]wanted to go ahead and get to cutting so – to run his numbers up, so they wentahead and cut without following the procedures that we normally do.

 

Vol. 1, Tr.146-147.

 

Thinking that the deficiencies would becorrected, Smitherman went to lunch, but upon his return he discovered that thefly pads had not been installed. Vol. 1, Tr. 148. With the roof bolters aboutto start their job, Smitherman intervened, pointing out that there was no aircoming through the slant. *Id*. He then informed that he would not bebolting and advised the other bolters that they should not bolt, either. In agassy mine without the air moving as it should, Smitherman worried that boltingunder such conditions “could blow this mine up, you know.” Vol. 1, Tr. 149. Hisfellow bolters advised they would seek out Salyers as to what to do. *Id.*Smithermancontinued that the other bolters found Salyers “[a]nd they said they told himwhat I said and that I was going to tell on them if they run that roof bolter .. . in that cut or whatever.” Vol. 1, Tr. 150. He reiterated this recountingfrom the bolters to him, stating “[t]hey said thatthey told [Salyers]what I said and that I wasn't going – I wasn't going to boltit and that . . . they did not bolt it either. They . . . said that they toldhim that I might – that they was scared I was going to tell on them.” Vol. 1, Tr.151. According to Smitherman, after the corrections were completed, he resumedhis roof bolting duties. Vol. 1, Tr. 152. 

 

The Court notes thatthroughout his testimony, Smitherman was able to recall and describe theinstances of his safety concerns in detail and with particularity, aconsideration leading the Court to find his recollection credible. For hispart, Salyers did not challenge Smitherman’s claims of several safety disputesin early 2021 beyond merely denying them and reiterating generally hiscommitment to safety. Vol. 2, Tr. 127-128. Salyers did recall a conversationwith Smitherman about dust bags on February 2, 2021, but denied that he becameupset with Smitherman in the course of that conversation. Vol. 2, Tr. 129-132. Asidefrom the dust bag issue, Salyers denied Smitherman ever complaining to himabout any practices or condition underground. Vol. 2, Tr. 132. Salyersmaintained that Banks and Volts were the ones to inform him of the fly padissue. Vol. 2, Tr. 137-138.

 

Based upon its assessment of the Complainant’s testimony, theCourt finds that Smitherman had real and substantial disagreements on safety issueswith his supervisor, Salyers, and that these disagreements likely damaged therelationship between the two men and gave Smitherman a reputation as a nuisancein the eyes of his supervisor. Accordingly, the Court finds Smitherman’s safetyconcerns credible and reasonable, and particularly so given the gassy nature ofthe Number 4 mine. Apart from this determination, it should not be overlookedthat a finding of discrimination does not rest on a miner’s safety concernsbeing correct. *MarshallCty. Coal Co. v. Fed. Mine Safety & Health Rev. Comm’n*, 923F.3d 192, 204 (D.C. Cir. 2019).Thus, Smitherman’sconcerns did not have to be accurate to be protected activity.

 

Atthe beginning of the next owl shift, around 10:30 p.m. on March 1, 2021, Smithermantold Salyers that he did not want to continue working on his section.[11] Vol. 1, Tr.153.    He informed that he couldn’t work that section anymore “with them doingwhat they did the day before.” Tr. 154. Smitherman expressed that his desire tomove was because he believed Salyers’ section was dangerous “because of whatwas going on up there.” Vol. 1, Tr. 156. Thus, he made it clear that his desireto move was because of his safety concerns with Salyers’ section. Vol. 1, Tr.157. Smitherman recalled that he had also spoken with the shift foreman, James Earnest,about his desire to move to another section on the other side of the mine a fewdays earlier, but Earnest informed him he had to wait until another miner movedfrom a section. Vol. 1, Tr. 155.

 

TheCourt notes that Salyers in his earlier testimony, *supra*, claimed not toknow why Smitherman wanted to be transferred from his section. Given the eventsof the previous shift and the history between the two men, the Court finds thatSalyers knew exactly what Smitherman was referring to when he expressed adesire to move “because of what was going on up there.”

 

In the wake of that exchange, Smithermanwas then directed to run the Lo-Trac, a task that involved bringing upsupplies. Smitherman was the senior roof bolter on the section that day, and anassignment of that nature, bringing up supplies, would usually go tothe least senior person. Vol. 1, Tr. 158-159. Smitherman had brought upsupplies before, but he had not done it in years and never in his time workingon the Number 4 section. Vol. 1, Tr. 160. Smitherman interpreted thework assignment from Salyers as intended to keep himoff the faces and thereby prevent Smithermanfrom slowing coal production on the section. Vol. 1, Tr. 161-162. 

 

Salyers told Smitherman to bring up somewater line, advising him where he believed it was located. Vol. 1, Tr. 162-163.However, Smitherman went to that location and did not see the water line. Vol.1, Tr. 163. Next, according to the Complainant, supply cars arrived and it tookhim all the way to lunchtime to unload those three full cars of supplies. *Id*.On his way to lunch, Smitherman saw Salyers, who asked him how many supplies hehad brought up. *Id*. The Complainant informed his foreman that he “took twopallets” of supplies because he had to unload the supply car. Salyers respondedto Smitherman, “Oh, okay” and then instructed Smitherman to bring up block andthe dust as well. *Id.*

 

Smitherman encounteredobstacles in fulfilling his assigned tasks. In the course of repairing the minetrack, that crewinstalled ties, akin to railroad ties, some 6 to 8 feet in length, under thetrack, making the passage too narrow for the Complainant to pass through on the  Lo-Trac. Smitherman testified that he had to remove all the ties out by himselfand then let the track back down in order to pass. Vol. 1, Tr. 165. As hepassed, a pallet on the Lo-Trac tipped over,requiring him to restack the blocks and he had to fill in a hole wherethe ties had been placed. Smitherman stated that he got out a few more palletsbut the maintenance foreman then asked him to bring up the rock duster from themillie track.[12]Vol. 1, Tr. 165-166. Smitherman then resumed bringing up pallets. Vol. 1, Tr.166. In summary, the Court finds that Smitherman provided a detailed account ofobstacles hindering the tasks he was initially assigned to accomplish and ofthe additional tasks he was assigned while trying to complete the tasks Salyersassigned him.

 

At that point, accordingto Smitherman’s account of the events that day, he felt he needed a break fromhis exertions, so he drove the Lo-Trac into a supply hole and turned themachine off. Vol. 1, Tr. 168. Because there is little air circulation in thesupply hole, it was necessary for him to turn off the machine so that dieselfumes and heat from the running machine would not accumulate. *Id.* It wasat this point, during his break, that Salyers came to Smitherman’s restlocation. Smitherman recounted telling Salyers that he was taking a break, and thesupervisor responding that Smitherman had not finished the work he assignedhim.[13]*Id.*Smitherman informed Salyers he was not finished yet. *Id*. Accordingto Smitherman, Salyers then yelled at him, stating that he “ought to write him[Smitherman] up.” *Id.*Smitherman disputedSalyers’claim in his testimony that he had only brought up two pallets in eight hours, assertingthat he had done several tasks and that Salyers saw him several times beforelunch and knew Smitherman had been working. The Complainant also contended thatSalyers knew that the pipes he assigned him to get were not in the threelocations he directed him to go. Vol. 1, Tr. 168-173. Smitherman also assertedthat, by the end of the shift, he had brought up the remaining pallets thatSalyers wanted. Vol. 1, Tr. 175. Smitherman felt that Salyers was trying toprovoke him. Vol. 1, Tr. 169. Having considered the entirety of the testimonyof Salyers and Smitherman, the Court finds the Complainant’s characterizationcredible.

 

Smitherman gave additional details, beyondthose recounted here, in his testimony as to his work activities during theshift and the obstacles he encountered in trying to complete his workassignments. The Court, having heard Smitherman’s additional recounting, findsSmitherman’s further testimony involving his activities on that day to be detailedand credible. *See*, generally Tr. 168-179.

 

The Complainant also contested Salyers’claim regarding the circumstances when he came upon him in the supply hole,asserting instead that when he was taking a break inthe supply hole, his headlamp and light *were not off*. Vol. 1, Tr. 179. Smithermanfurther denied that he was asleep. Vol. 1, Tr. 180. Asked why his claimto not being asleep should be believed, he stated that after his previousdiscipline and suspension for sleeping at work, he learned from his mistake anddid not want to have that happen again. Vol. 1, Tr. 181. Smitherman stated thatwhen Salyers approached him, the supervisor made no claim that he was sleeping.*Id.* After Salyers’ remark that he was going to write him up and Smithermanresponding “to do what he had to do,” Salyers then asked him if he had foundthe pipe. Vol. 1, Tr. 181-182. Smitherman told Salyers he had not, and Salyersinstructed him where to look for the pipe. Vol. 1, Tr. 182. However, Smithermandid not find the pipe at the location Salyers gave him. *Id.*Smithermanalso attested that by the end of his shift he had moved all of the supplies,save the pipes, to where they were to be delivered. *Id.*

 

At the end of his shift, Salyers toldSmitherman to go to the office of Jason Lee, the general mine foreman;Smitherman did so, but was redirected to the office of Sherry Sterling, themine’s Human Resources Manager. Vol. 1, Tr. 183. At the meeting in Sterling’soffice, Lee was present, along with Roscoe Boyd, a representative from theunion. Vol. 1, Tr. 184. Smitherman recounted Boyd asking him, before Sterlingand Lee walked into the room, why Smitherman wasthere; Smitherman told him he did not know. Upon entering the room, Sterlingand Lee asked him if he knew why he had been called into the office; Smithermantold them he did not know the reason. *Id.*Smitherman was then asked totell them what happened on the section. Upon hearing his recounting of the priorsafety-related events, Sterling and Lee asked him why he had not raised those safetyconcerns earlier. Smitherman testified that his response to them was thatWarrior Met put production over safety, but he added that Lee did not agreewith that claim. Vol. 1, Tr. 184-185. Smitherman was then informed that he wasgoing to get “five days off with intent” (i.e., suspended) while the matter wasinvestigated. Vol. 1, Tr. 185. 

 

Subsequent to his meeting with Sterlingand Lee, Smitherman called Sterling and left a voice message, advising her that“they need to go to the return on this section and do a dust sample. I toldthem that they’re going to find out that [Salyers was] not putting out rockdust in the returns, and I told her to . . . check on that. And I never got aresponse back from her.” Vol. 1, Tr. 186. Smitherman never received any otherinformation from Sterling about the investigation, never learned whoinvestigated the matter, and was never asked to give a written statement. Vol.1, Tr. 187. To the Court, these uncontested failings evince a lack ofobjectivity on the part of Warrior Met in their investigation of this matter,of which more will be said later.

 

Smitherman also recalled providing thenames of individuals who saw him on the shift at issue, Chris Walls and WesleyKoots. He believed those two men saw him shortly beforehis encounter with Salyers in the supply hole.Vol. 1, Tr. 188-90.

 

After his five-day suspension,Smitherman met with management – Sterling and Chris Thielen were there, andpossibly also Lee, along with “four or five other union officials.” Vol. 1, Tr.191. At the meeting Smitherman was informed that the investigation had beencompleted and he would be terminated. Vol. 1, Tr. 191-192. Smitherman recalled that Thielenstated that he did not know which side to believe onthe sleeping allegations, instead asserting that Smitherman would be terminatedbecause he turned “the Lo-Trac off and stopped working, and [Thielen] said[Smitherman is] not allowed to stop working without an – that’s an unauthorizedbreak, and that’s what he was firing me over.” Vol. 1, Tr. 192.Smitherman testified that he had never heard of an “unauthorized break.” *Id.*In contrast, Smitherman recalled it being normal for miners to occasionallytake breaks for water or just to collect themselves, and that he had neverrequested prior permission before taking a break. Vol. 1, Tr. 193. Thielen didnot explain why Smitherman’s break was unauthorized. Instead, he moved fromthat conclusion to relying upon Smitherman’s 2018 signed agreement wherein the Complainantagreed that any future infraction would result in termination. Vol. 1, Tr. 194.

 

Thecomplainant also stated that, during the meeting announcing his termination,both he and the union representatives asserted that they believed Salyers’claim was in retaliation for Smitherman’s ventilation complaint, but that neitherThielen, nor Sterling, responded to that claim. Vol. 1, Tr. 195. Smithermannever receive a written copy of the investigation report and was never informedwith whom management spoke in the investigation. *Id*.

 

TheSecretary introduced “Employee work location, Mine 4. Clock number, 1307,”entitled “Warrior Met Coal Record of Disciplinary Action,” admitted intoevidence as Exhibit P4. Vol. 1, Tr. 204. That exhibit provides under the topic ofReason for Disciplinary Action “Violation of work rule No. 1.” Tr. 199. Smithermancharacterized the exhibit as the “premise they used to fire me on for breakingwork rule 1: wasting time, loafing, and loitering.” Vol. 1, Tr. 204-205.

 

Upon cross-examination, Respondent’scounsel turned to that Warrior Met work rule 1, which prohibits “insubordination.”Vol. 1, Tr 231. That rule gives examples, including “wasting time, loafing,loitering on the job, neglect of job duties and responsibilities.” Vol. 1, Tr.232. The Court, while surprised that the Respondent’s use of the term “insubordination”applies to behavior such as wasting time, and neglecting job duties, takes themine’s construction of the word on its own terms. However, such an applicationdoes not excuse the Respondent from establishing thatsuch behavior occurred. On the basis of the record as a whole, which includes credibilitydeterminations, the Court does *not* find that the Complainant wasinsubordinate. 

 

Regarding the dust bag disputewith Salyers, Respondent’s counsel challenged Smitherman’s reference to theMSHA citation he referred to earlier in his testimony, contending that thecitation actually regarded an air filter; and in that context Smitherman agreedthat the citation did involve an air filter and that an air filter is differentfrom a dust bag.[14]Vol. 1, Tr. 233-234. The Court notes again that, in order to be protected activity,a miner need only have a good-faith belief in the safety concern; whetherSmitherman was correct about dust bag use is not determinative. Additionally,while distinct, an air filter and a dust bag both involve dust issues for the samepiece of equipment, making the distinction more of nuance. 

 

Respondent’s counsel also noted that the text of Smitherman’sdiscrimination complaint makes no mention of the three or four other safety issues he described in his testimony, otherthan the dust bag issue and the fly pad ventilation issue. Vol. 1, Tr. 237, 239.Smitherman agreed and he also agreed that he did not raise those three or fourother safety concerns to anyone at the mine beyond Salyers. Vol. 1, Tr. 234-235.Smitherman explained his reasoning for not bringing the issues to others: “Aslong as – I’ve been underground for 19 years, and we normally handleunderground underground. We don’t normally take stuff outside, because you haveto have the trust of the guys around you in case you’re in a fire or any – geta rock on you, or – you got to depend on that next man to get you out. Thepeople outside can’t get you out.” Vol. 1, Tr. 236.

 

Respondent’scounsel then asked Smitherman “[t]hese three or four other safety issues thatyou mentioned, those aren’t an issue in this proceeding, are they?” to whichSmitherman disagreed, responding “Yeah, they are issues because they – theyhappened.” Vol. 1, Tr. 237.

 

TheCourt notes that the Complaint does not address those other safety issues, butthe Complaint need not be a compendium of all the safety related concernsassociated with it; rather it represents the core charges. There is no bar to acomplainant amplifying the background and context for those core allegations,as Smitherman did in his testimony on direct. Thus, the complaint representsthe basic claims and does not foreclose admission of additional relevantinformation in support of it. Further, the Court notes that its decision inthis matter does not rest heavily on Smitherman’s alleged prior safetycomplaints, and that it stated as much during the hearing itself. Vol. 1, Tr.245-246.

 

Returningto the dust bag dispute of February 2, 2021, Smitherman agreed withRespondent’s counsel that not all roof bolting machines are required to havedust bags; asserting that primarily the newer ones are so equipped. Vol. 1, Tr.247-248. He also agreed that after raising the dust bag issue, more dust bagswere provided on the next shift and he was never disciplined for bringing up theissue. Vol. 1, Tr. 252. The Complainant also agreed that Derrick Wade, anotherroof bolter working with Smitherman that day, also had an issue with the lackof dust bags, and was not disciplined for complaining about the dust bag issue either.Vol. 1, Tr. 253. 

 

However,the Court would note that, cumulatively, Smitherman’s repeated safety-relatedcomplaints, placed in the context of the events that led to his suspension andsubsequent termination, cannot be ignored. Considering the testimonysurrounding those events, and the Court’s evaluation of the witnesses’credibility in their recounting of those events, it is hard to dismiss thoseprior instances as merely disconnected events which played no role inSmitherman’s firing. 

 

Turningto the ventilation issue on the owl shift which began on February 28, 2021, andcontinued through the next morning, March 1, Smitherman agreed that boltersBanks and Volts were bolting without proper ventilation on those dates, andthat Smitherman told them they should not be bolting under those conditions andthat they should approach Salyers in order to have the proper ventilation installed.Vol. 1, Tr. 254-255. Smitherman agreed that he had no evidence that Salyersknew that the bolters were bolting without proper ventilation and heacknowledged that the ventilation issue was corrected during the shift when theissue was raised. Vol. 1, Tr. 255, 258.

 

Respondent’scounsel, revisiting the March 1-2 owl shift, at which time the events leadingto the Complainant’s suspension, and later his termination, occurred,Smitherman agreed that before the beginning of the shift, he told Salyers that hewanted to be transferred to the other side of the mine. Smitherman again statedthat he told Salyers he wanted to be transferred because of the events of theprior night. Vol. 1, Tr. 261-262, 298. Though Salyers himself testified that hedid not know why Smitherman wanted to be transferred, when Respondent’s counselattempted to suggest Salyers may not have known because Smitherman did notspecify why he wanted the transfer, Smitherman flatly rejected the claimedignorance, responding, “Yes, [Salyers] knew. There wasn’t any other incidenthappened the night before . . .” Vol. 1, Tr. 262.

 

 Giventhe proximity in time to the ventilation issue, the Court finds that Salyers’claim defies common sense, especially when viewed in the context of the historyof conflicts between the two. Clearly, Salyers would have known why Smithermanwanted the transfer and the Court commented to that effect during the hearing. Vol.1, Tr. 265-266.

 

Regardingwhether he was earnestly performing the work assigned that day, Smithermanstated that after lunch he did not see Salyers again until the incident, referringto their confrontation in the supply hole. Smitherman added that Salyers“didn’t give me time to tell him what went on. He just started yelling and –and talking about other stuff.” Vol. 1, Tr. 270. Smitherman informed that theneed to unload the car supply and the belt crew activity prevented him frombringing supplies up. Vol. 1, Tr. 271. He did admit to taking a break around 6a.m. that day, and that he did not seek Salyers’ permission to do that, nor didhe tell him that he needed a break. Vol. 1, Tr. 273. Subsequently, on redirect,Counsel for the Secretary asked if it would have beenreasonable for him to ask Salyers for a break, to which the Complainantexplained that it would have taken him a long time just to find Salyers, andthat it was not common practice to seek out the supervisor for permission totake a break. Vol. 1, Tr. 301. At least in this context the Court agrees thatseeking such prior approval would have been impracticable, especially giventhat it was very near the end of the shift.

 

Despitemuch questioning over exactly what Smitherman did during the shift when he wasassigned to the Lo-Trac, Smitherman responded, convincingly in the Court’sestimation, to those questions. In one such exchange, Smitherman responded thatSalyers “knew he told me to go load the roof bolter, and he knew that I hadunloaded the supply car, and he knew that I had went to look for pipe. So heknew I had five and a half hours to do all of those things.” Vol. 1, Tr. 281.When asked if he had moved the pipe by 6 a.m., Smitherman responded,consistently with his prior testimony during the hearing, that he had notaccomplished that, “because [he] had never found the pipe [Salyers] asked for.”*Id.*As another example, when Respondent’s counsel asked the Complainant ifSalyers expressed surprise that he had only moved two pallets in eight hours,Smitherman answered that Salyers’ claim “was nonsense because he told me to doall of those other things.” Vol. 1, Tr. 282.

 

Respondent’scounsel then referred to Smitherman’s Record of Disciplinary Action,[15] which, atleast by the Respondent’s account, played an important role in his termination.Vol. 1, Tr. 288, Ex. P 4. Within that exhibit, Respondent’s counsel drew attentionto the alleged violation of Work Rule 1, which he summarized as “prohibit[ing]wasting time and loafing” and “unacceptable work performance.” Complainantagreed with this characterization. Vol. 1, Tr. 288-289. Additionally noted byRespondent’s counsel, the Complainant’s disciplinary record also citesSmitherman as having violated Work Rule 5, which Respondent’s counselcharacterized as “prohibit[ing] sleeping on the premises.” Complainant agreedwith this characterization too, though those words are nowhere in the exhibit. Vol.1, Tr. 289, Ex. P 4. 

 

Thefundamental problem with citing to those work rules – sleeping and loafing – isthat *before* applying them the Court must find that those prohibitedbehaviors occurred in the matters at hand. The Court does not find that thecredible evidence supports a finding that any of those prohibited behaviorsoccurred in this instance. 

 

AlthoughSmitherman agreed that Salyers did not make the decision to terminate him, hemade the salient observation that “[Salyers] recommended it.” Vol. 1, Tr. 289. Andwhile Counsel for the Respondent then asserted that “[s]o someone else made anindependent judgment to terminate [Complainant’s] employment,” Smithermanagreed that the actual decision to terminate was made by Chris Thielen, but he added,significantly in the Court’s view, that it was “[b]ased off of what [Salyers] said.”Vol. 1, Tr. 289-290. The Court, in consideration of the entirety of the record,finds that the Complainant’s point is well-taken and the fact. 

 

 

*Testimony of**Thomas O’Donnell, MSHA Special Investigatorand MSHA Conference Litigation Representative*

 

The Secretary called ThomasO’Donnell, MSHA employee since 2005 and conference litigation representativesince 2012, to the stand. Tr 311,315. O’Donnell investigated Smitherman’sdiscrimination complaint. Tr. 325. He confirmed that the Number 4 Mine is agassy mine, and that the mine has been on a five-day spot inspection at least sincehe was hired with MSHA. Tr 322-323. It is a matter of great significance for amine to be designated for such inspection frequency. The Mine Act speaks tothis, providing, pursuant to Mine Act section 103(i), that there is to be a spotinspection every five days for mines liberating for excessive quantities ofmethane of more than one million cubic feet of methane or other explosive gasesduring a 24-hour period.

 

In conducting his investigation, O’Donnell interviewed Smitherman, Salyers, Volts, Banks,Koots, Walls, and Sterling; he attempted to interview Earnest but ran out oftime. Vol. 1, Tr. 330. However, of the interviewees, only Smitherman was able to review O’Donnell’s memorandumof the interview, comment upon it, and vouch for its accuracy. Vol. 2, Tr. 12. Assuch, with the other interviewees not afforded the opportunity to review thememorandum O’Donnell created of their respective interviews, it would befundamentally unfair for the Court to consider those unreviewed interviews. 

 

Accordingly, in making its determinationsin this matter, the Court has not considered any of the testimony presented by special investigator O’Donnell as it pertains to hisremarks regarding the information he ostensibly obtained in his interviews ofVolts, Banks, Walls, Sterling, or Koots, nor has it considered the statementsthemselves. This determination does not infer that the statements obtained byInvestigator O’Donnell, were manipulated or otherwise inaccurate recountings ofhis interviews. Rather, the determination is simplythat it would be inconsistent with fundamental fairness to consider them, giventhe lack of an opportunity for those individuals to have reviewed them. Instead,in making its decision in this matter, the Court relies upon the firsthandtestimony of the principal actors: Smitherman, Salyers, Sterling, and Thielen.

 

* *

*SubsequentTestimony of Zachary Salyers*

 

Respondent’s counsel recalled Mr. Salyers for direct examination. Initially, itwill be remembered, Salyers was called by the Secretary and denominated as anadverse witness. Salyers revisited his dispute with Smitherman about thenecessity of using dust bags on the roof bolter. Vol. 2, Tr. 130. The Court finds that whether Salyers or Smitherman was correctin their view about dust bags is not important, but rather that the encountergoes toward establishing that Smitherman and Salyers had a history of clashingabout safety issues. It was from this history of conflict, and the testimony ofthe two, that the Court concluded that Salyers viewed Smitherman as a thorn,giving rise to animus towards him. 

 

On the February 28-March 1 owlshift, Salyers admittedthat Banks and Volts were in the dinner hole afterSalyers “came back from the return,” and that at that time Banks and Volts informed him that they needed to get the flypads up in the slant. Vol. 2, Tr. 137-138.

 

Asked about the followingshift, March 1-2, Salyers recounted that Smitherman told him he did not want towork for him and wanted to be transferred. Vol. 2, Tr. 140-141. Salyers claimedSmitherman said nothing about safety, fly pads, ventilation, or dust bagsduring that exchange and that he did not get upset with Smitherman then either.Vol. 2, Tr. 141.Instead, Salyers told Smitherman he would speak withthe shift foreman, Earnest, about the matter. When asked if he had “any notionat all why Juan [Smitherman] wanted to be moved?” he answered “No.” Vol. 2, Tr.142. Given the testimony from Smitherman and Salyers as a whole, theCourt does not find Salyers’ assertion to be credible.

 

In furtherance of the claim that theComplainant was loafing, Salyers characterized the work assignments he gaveSmitherman as much less burdensome than Smitherman’s recounting. Salyers addedthat the distance one would have to travel using the Lo-Trac to get supplieswas only five crosscuts, or 1500 feet, and doing so would only involve a15-minute roundtrip and that during a shift, a Lo-Trac operator will move about9 to 11 loads. Vol. 2, Tr. 146-147. Salyers also characterized using theLo-Trac as “definitely the easiest job on the – as far as section work goes.” Vol.2, Tr. 148. 

 

If Salyers’ version were accepted by theCourt, it would be reasonable to conclude that the Complainant had a lightworkday. However, when asked for an accounting of the times he “interacted”with Smitherman, Salyers gave only the following: “Once at arrival, once at hisdinner break, and once at 6:00 to 6:30, and then again as we were getting onthe man trips [to leave for the surface].” Vol. 2, Tr. 154. 

 

A similar conflict in their recounting ofevents was presented with Salyers’ assertion that he found Smitherman asleepwithin an hour of the end of the shift. Salyers stated that, when coming uponhim, he asked him “why he hadn’t got anything accomplished that night.” Vol. 2,Tr.158. Salyers’ accounting was that Smitherman response to him was “I told youI didn’t want to work for you.” Vol. 2, Tr. 158. Such irreconcilable versionsrequired the Court to make another credibility determination. In that regard,it finds it highly unlikely that Smitherman would respond to his supervisorwith an answer that would effectively be an admission that he had not done thework assigned that day. Smitherman was already aware that such a response wouldresult in his termination because of his prior suspension. Accordingly, theCourt finds the Complainant’s version to be more credible as it is highlyimprobable that the Complainant would make such a harmful admission to Salyersof all people. Further, Salyers’ remark that *during that same exchange*Smitherman told him he “was having trouble passing a spot on the track and thathe had to put a crib under it,” is incongruous with the supervisor’s retellingof the event. Simply put, Salyers’ remark that Smithermantold him he “was having trouble passing a spot on the track and that he had toput a crib under it,” does not fit with his claim that the Complainantasserted he did not want to work for him. Vol. 2, Tr. 159. 

 

Salyers stated that, followingthat event, which he dubbed a “conversation,” he then phoned Pete Richardson, informingthat he “had just found Juan [Smitherman] asleep in the Lo-Trac and asked if[Richardson] could stay outside to handle it.” Vol. 2, Tr. 162. Richardson wasotherwise occupied and advised Salyers that “Jason Lee would handle thematter.” Vol. 2, Tr. 162-163. 

When asked byRespondent’s counsel “by the end of the shift, how much of what you hadassigned [Smitherman] that night had he accomplished?” Salyers answered“Nothing.” Vol. 2, Tr. 163. He then repeated the word, “Nothing.” *Id.* TheCourt, surprised at Salyers’ assertion, then asked “[b]y the end of the shift,[Smitherman] had accomplished nothing?” Salyers then qualified his response,stating “Nothing that I had asked him at the beginning of the shift to do, no.”Vol. 2, Tr. 163-164. This was a distinctly different answer from his twice-repeatedclaim a moment earlier. 

When the shift concludedand Salyers was on the surface, either Richardson or Lee flagged him and toldhim that they needed to meet in Sterling’s office. Vol. 2, Tr. 165. At thatmeeting, they asked Salyers what had happened, and then he was directed to givea written statement about it. Vol. 2, Tr. 165. Salyers stated that he was notpresent for any interviews conducted by Sterling or Thielen. 

Salyers agreed that hiswritten statement and his oral statement combined were the basis for thedecision to suspend Smitherman. Vol. 2, Tr. 171. Again, Salyers denied that Smithermantold him that he didn’t want to work for him because of the previous night’sevents. Yet, Salyers again admitted that he did not ask the Complainant why hedidn’t want to work on his section anymore. Vol. 2, Tr. 172. 

*Testimony of SherrySterling, Human Resources Manager*

Respondent thencalled Sherry Sterling, Human Resources Manager at Warrior Met Coal, MineNumber 4. Vol. 2, Tr. 176. Her duties include overseeingdisciplinary investigations.  She described the termination process as follows: “After the investigation is complete andthe company decides that they want to move forward with a termination, we willsuspend the employee with intent to discharge.” Vol. 2, Tr. 179. Followingthat, the UMWA “would contact us to let us know whether they want to have a 24-or 48-hour meeting, which is a meeting between the union, that employee that'sbeing disciplined, and the mine manager, and myself. And from there, the minemanager makes the determination, whether he wants to retain that employee orwhether he wants to uphold the discharge.” Vol. 2, Tr. 179-180.

Sterling agreed that theinvestigation is “something that falls within [her] purview of responsibility,”however she informed that Chris Thielen, the mine’s manager, is the ultimatedecisionmaker when it comes to discharge. Vol. 2, Tr. 180, 184. Sterling testifiedthat she does not take written statements in all instances, nor does she“normally issue any kind of report to either the person who raised the concernor the person about whom the concern is raised.” She agreed that conflictingaccounts about events occur frequently. Vol. 2, Tr. 182. To resolve suchconflicts, Sterling stated “we follow where the evidence takes us. And we haveto decide who is the more credible witness. And that’s – that’s not easy, but .. . It is – it is part of my job.” Vol. 2, Tr. 182-183.

Referencing Warrior Met’swork rules 1 and 5, Ex. R18, Sterling confirmed that other employees have beenfired for violating those rules. Vol. 2, Tr. 187.

On the morning of theincident at issue Thielen told Sterling that Salyers “was bringing someone fromunderground *for sleeping*,” telling her to speak to Salyers and to theemployee because Thielen had to go underground. Vol. 2, Tr. 188 (emphasis added).

Sterling first spoke withComplainant Smitherman, who told her he did not know why he had been broughtout. Smitherman, Sterling testified, also told her that “he did not likeworking for Zach [Salyers], and he didn’t like the way Zach operates, and hewanted to be removed from this section.” *Id**.*Asked if Smitherman told her that he had reported safety concerns toSalyers, she responded “No, not that day, he did not to me.” *Id*. As towhether Smitherman said anything about ventilation issues or fly pads, Sterlingresponded in a like fashion, “No, not that I can recall. Not that day.” Vol. 2,Tr. 188-189. At the meeting with her, Smitherman said that “he was notsleeping. He said that that was untrue.” Vol. 2, Tr. 189. Sterling stated that,when asked, Smitherman did admit that he did not complete the work that night. Vol.2, Tr. 189. 

Beyond those statements, Sterlingtestified to not recalling anything else the Complainant said in that meeting,“not anything that stands out. I mean, we didn’t speak for a long time.” Vol.2, Tr. 189. The Court finds this information-gathering process at odds with theprofessed goal of conducting a neutral investigation. Sterling did not believea written statement from Smitherman was needed, because his version of events“was simple. He said, no, he wasn’t sleeping; no, he didn’t complete theassignments that Zach gave him.” Vol. 2, Tr. 190. The Court notes with dismaythat Sterling apparently felt no need for elaboration or further questions. 

After the meeting withSmitherman, Sterling met with Salyers. Salyers, in Sterling’s recollection,“told me that he walked up on Juan, and Juan was slumped over with his lightsoff, and he was asleep, and that he didn’t complete the assignments that he hadgiven him.” Vol. 2, Tr. 189-190. Sterling recounted that Smitherman was thensuspended, pending the investigation, allowing the mine “to investigate whathappened.” Vol. 2, Tr. 192. 

Sterling agreed that sometimeafter their initial meeting, Smitherman telephoned her. Vol. 2, Tr. 192. It wasduring that conversation, Sterling recalled, that Smitherman told her thatSalyers “had been letting people cut without curtains, and he [Smitherman] hadan issue with that. And that he was being unsafe.” *Id.*However,Sterling, the investigator, could not remember “if [the call] was that day orthe next day. He called me and we had a conversation about that.” Vol. 2, Tr.192-193. 

Sterling recalled that intheir in-person meeting on March 2, Smitherman mentioned Chris Walls and WesleyKoots “came by.” Vol. 2, Tr. 193. Sterling does not explicitly state what sheunderstood that remark to mean but, in context and given that it came fromSmitherman, it is apparent that he meant the two men “came by” and saw himworking. For that reason, Sterling explained that “[w]e” spoke with those twomen and with people on the crew, and particularly with Banks about theventilation issue Smitherman raised with her. *Id*. Walls and Koots *bothsaid they did not see Smitherman working or sleeping* that night – that theydid not see him at all that night. *Id*. Walls also stated that he did notgive Smitherman an assignment that night. *Id*. Thus, significantly in theCourt’s estimation, it is again noted that the only person Sterling identifiedin her investigation who claimed Smitherman was sleeping was Salyers. Vol. 2, Tr.194. 

Sterling acknowledgedthat Banks informed her that he had been cutting without a curtain and thatSmitherman confronted him about the issue.[16]Banks reportedly told her that Salyers had no knowledge of it. Vol. 2, Tr. 196.Thielen also spoke to Banks about safety and had him written up, with thewrite-up entered into Banks’ file. Vol. 2, Tr. 196-197. Thus, the upshot ofcurtain issue was that discipline was meted out, but only to the roof bolter,not to Salyers.

As part of her ‘investigation,’a term the Court believes is a stretch to use in this matter, Sterling revealedthat she “pulled [Smitherman’s] file from my office to look through his previousdisciplinary actions, to see if there was anything in there.” Vol. 2, Tr. 197.This, it seems to the Court, was nothing more than a plain attempt to dig updirt regarding the Complainant, and cannot be construed as any part of anobjective investigation. That search bore fruit, as Sterling found Smitherman’s2018 citation for sleeping.*Id.*Sterling testified that this pastinfraction “was a big factor” in her analysis “because it said any furtherinfractions of any kind – which means it could be big or small. Whatever it iscould result in immediate discharge.” Vol. 2, Tr. 198. Though Sterling statedthat she spoke to other miners, aside from Volts, she could not recall theirnames – and none had anything negative to say about Salyers’ safety practices. Vol.2, Tr. 201-202. She claimed her inability to recall their names stemmed fromthe conversations occurring “so long ago.” Vol. 2, Tr. 202. The Court does notshare Ms. Sterling’s view that it was “so long ago,” and further, such a vaguerecounting strikes the Court as inconsistent with her evidence gathering role. Sterlingclaimed that she had no idea of a safety grievance, save the curtain issueSmitherman raised with her after his suspension, until the day beforeSmitherman’s arbitration when the union contacted them. Vol. 2, Tr. 202-203.

When asked duringcross-examination how she knew Salyers claimed Smitherman was sleeping, whenshe met with Smitherman before meeting with Salyers, Sterling responded thatshe knew this information from the mine manager, “because [he] told me to goover there because [Salyers] was bringing someone from underground that he hadcaught sleeping.” Vol. 2, Tr. 204.

The Court finds a patternin Sterling’s testimony of not recalling important facts relating to theconduct of her investigation. The Court further observes Sterling’s tendency toavoid probing further in the investigation for additional details. When askedabout Smitherman telling her that he did not like working for Salyers, andwhether she followed up by asking Smitherman why he had that view, Sterlingresponded only, “I think I did ask him why.” She recounted that Smitherman“said he didn’t like the way that [Salyers] operates.” Vol. 2, Tr. 213. Anatural follow-up, the Secretary’s counsel then asked, “Did you ask him what hemeant by that?” To which Sterling answered she could not “remember if [she]asked him that.” *Id*. Surprised, counsel for the Secretary then asked,“You can’t remember if you asked him what he meant by he didn’t like the way [Salyers][17] operated?” Sterlinganswered, “No, ma’am. I can't speculate because I just don't remember if Iasked him that or not.”[18]*Id.*

And there is moredemonstrating the inadequacies of Sterling’s ‘investigation,’ as reflected withthese exchanges:

The Secretary, askingSterling if Jason Lee, in the meeting with Smitherman, asked him why he did notlike the way Salyers operated, Sterling answered, “I don't remember.” Vol. 2, Tr.214. And then, asked if she remembered“whether or not Mr. Lee asked [the Complainant] why he did not want to work forZach [Salyers],” again, she answered “I don’t remember.” *Id*.  This lackof recall persisted; when Sterling was asked, in speaking with Salyers, if sherecalled “whether or not [she] asked [Salyers] if he knew why [the Complainant]might want to be removed from his shift, from his section,” again her answerwas “I don't remember.” Vol. 2, Tr. 215. Nor, Sterling admitted, after shecompleted her ‘investigation,’ did she have any follow-up questions for eitherSalyers or the Complainant. Vol. 2, Tr. 216.

 

Sterling also admittedthat while she stated that both the Complainant and Salyers told her that not allof the work assigned to the Complainant had been completed, she had “*no idea*”what that meant, as she agreed that it could have been 10 percent or 50 percentthat wasn’t done. Vol. 2, Tr. 223 (emphasis added). 

It is of note that althoughSterling asserted that Warrior Met does not permit employees to takeunauthorized breaks, she was unable to articulate what constitutes WarriorMet’s definition of an “unauthorized break,” offering only the tautology thatit is break that your supervisor did not authorize. Vol. 2, Tr. 228. Inconsistently,Sterling stated that the company would not consider it a violation of that companypolicy if a miner stopped for water or used the restroom, though without a supervisor’spermission. *Id*. Although it was her understanding that a miner seeking abreak following strenuous activity should ask their supervisor for permission,she could not point to any company policy addressing that issue or specifyingprecisely what sort of break requires explicit supervisor permission, otherthan the Collective Bargaining Agreement that grants a 30-minute break. Vol. 2,Tr. 231-232. 

That Sterling’sinvestigation was one-sided and superficial is demonstrated by this exchangewith the Secretary’s Counsel: “Would you agree that the statement of – that thereport from Zach Salyers was what led to everything that we’re here abouttoday?” Sterling’s answer was “[h]is written and his verbal statement, yes, ma’am.”Vol. 2, Tr. 233-234. 

Sterling, in response toquestions from the Court, stated that before she went to meet with Mr. Thielen,the mine manager, she had *not* formed an opinion as to which version,Salyers or the Complainant’s version, was more credible. Vol. 2, Tr. 240. However,she then modified that response, stating that “it was not until after I spokewith Chris Walls and Wesley Koots that I determined which version wascredible.” Vol. 2, Tr. 243. It should be noted that her view from speaking withthe two miners related only to the sleeping allegation. Vol. 2, Tr. 244. Yet, neitherWalls nor Koots asserted seeing Smitherman sleeping;rather their remarks to Sterling pertained to Smitherman’s claim that Walls hadgiven him an assignment, with Walls stating that was not true. Although theComplainant stated to Sterling that both Walls and Koots came by and saw himworking, Walls and Koots, the latter an hourly employee, both said that thatwas not true. Vol. 2, Tr. 244. The Court notes that neither Walls nor Kootstestified at the hearing and that Sterling did not present a statement fromeither one. Neither one asserted seeing Smitherman sleeping either. Vol. 2, Tr.246. Again, in the Court’s view, it is revealing that the only statementSterling took was from Salyers. 

In trying to determinethe bases for Sterling’s determination, the Court asked what she was “left withthat led [her] to conclude that Mr. Salyers' version was more credible than Mr.Smitherman's version?” Her answer was damning and revealed her lack ofobjectivity, stating: “[*Salyers*] *is a supervisor*. *We have tohave faith in the supervisors that we hire*. ... I didn't find anything that[Salyers] said was untrue.” Vol. 2, Tr. 249-250 (emphasis added). Sterlingconcluded her remark on this issue by stating that her determination was basedon the sleeping issue and the issue of “whether Smitherman was beinginsubordinate by not completing his work tasks. It was two separatesituations.” Vol. 2, Tr. 250. The Court finds that Sterling’s conclusion wasclearly a predetermined result.

*Testimony of Chris Thielen, Manager of theNumber 4 Mine*

Chris Thielen, manager ofthe mine, testified as the final witness for the Respondent. Respondent’scounsel drew his attention to a time study, dated February 5, 2021, conductedby Warrior Met on 4 Section from February 1-4, 2021. Vol. 2, Tr. 265, Ex. R30. Thielenwas questioned about the time study; though he denied it as being used directlyagainst Smitherman or any miner in particular,the time study findings were critical of the right side bolter crew on owlshift, claiming a “lack of urgency or motivation on the right side bolter crewon owl shift.” Vol. 2, Tr. 267. Thielen described the purpose of the time studyas to “ensure [that] the foreman is informing [the] crew of standards andexpectations on a section.” Vol. 2, Tr. 270-271. When asked, Thielen affirmedthat he assumed Salyers would have seen the time study. Vol. 2, Tr. 296, Ex. R 30.Thus, it is obvious that Salyers knew at least about the results of the timestudy and that it did not reflect well upon him.

The Court notes further thatthe summary sheet on the time study, lists as one of the “observeddeficiencies,” that “[o]n owl shift 2/2, right side bolters refused to bolt dueto lack of dust bags for bolter on section.” Ex. R30. Furthermore, the timestudy summary sheet specifies, as the remedial action to remedy the observeddeficiency of the “lack of urgency/motivation displayed by right side boltercrew on Owl shift,” to “[e]nsure that the foreman is informing bolt crew ofperformance standards on section.” Ex. R 30. The time study summary sheet,which is in e-mail format, is addressed to Chris Thielen, Jason Lee, and PeteRichardson, among others. Ex. R30.

Salyers undercross-examination, *supra*, flatly denied ever receiving information orstatistics about production on his section. Vol. 1, Tr.90. The Court finds this claim not credible, as the time study summary, sent toSalyers’ direct supervisor Pete Richardson, directs that foremen be made awareof the owl shift right side bolter crew’s “lack of urgency/motivation” and refusalto bolt due to lack of dust bags, and to take remedial action. Ex. R 30.

Regarding theinvestigation, Thielen testified that at first he delegated the issue to JasonLee. Vol. 2, Tr. 271. Later, with Sterling, he spoke with Chris Walls,electrician Wesley Koots, and Jonathan Banks. Vol. 2, Tr. 274, 275. Thielencorroborated that Banks and the other bolter were bolting without properventilation. Vol. 2, Tr. 275. Banks was reprimanded for this but, the Courtwould again note, *not*Salyers. Vol. 2, Tr. 274. 

 

With respect tothe issue of Smitherman’s work on the day which led to his suspension andsubsequent termination, Thielen recalled that Volts saw or thought they saw Smithermanon a Lo-Trac. Vol. 2, Tr. 275-276, 294-295. He later stated that Koots andWalls told him that they “could see the Lo-Trac operating.” Vol. 2, Tr. 280.Asked to clarify, Thielen affirmed that Koots and Walls both said they sawsomeone on the Lo-Trac – that is, they saw lights, but could not see who wasoperating the Lo-Trac. Vol. 2, Tr. 295. The Court would note that there was notestimony during the hearing that anyone other than Smitherman operated theLo-Trac on that day. Thus, at least to that extent, Koots’ and Walls’statements did not advance Salyers’ claim that Mr. Smitherman did nothing onthe day in issue. 

 

            Thielenstated that, in assessing the issue, he looked at Salyers’ statement and Smitherman’srecord. From the latter, he deemed the “most important” aspect to be thewrite-up for Smitherman’s prior sleeping incident. Tr. 276. Noting that anyfurther infraction or violation would mean Smitherman’s discharge, he concludedSmitherman was “engaged in unsatisfactory work performance. He was found notattempting to complete the tasks that he was assigned to do. His Lo-Trac wasoff, and he was slumped over or asleep in his Lo-Trac.” Vol. 2, Tr. 277-278.

 

            Undercross-examination, Thielen stated what amounted to, in the Court’s view, a  fall-backposition: whether Smitherman asleep or not, when Salyers approached him, he was“not attempting to complete the tasks he was assigned to do.” Vol. 2, Tr. 281. Anindication that he was not about making an objective determination of thefacts, Thielen admitted that he did not speak with Smitherman until the unionmeeting. Vol. 2, Tr. 281 and Tr. 289-290. In fact, Thielen did not even askSmitherman if he was sleeping. Only Sterling asked Smitherman about that. Vol.2, Tr. 282. 

 

Thus, by his testimony, Thielen came to the conclusionthat Smitherman had been asleep, but with that conclusion being based onSterling’s view and Salyers’ statement. Vol. 2, Tr. 285. As Sterling was neverunderground at the time of the alleged incident, it should not be lost that theinformation distills into but one statement – that of Salyers, alone, with Thielengiving weight to Smitherman’s prior sleeping incident. Thielen also admittedthat, regarding the separate issue of the work accomplished by Smitherman onthe day in issue, he never spoke with Smitherman to consider his account ofwhat work he completed that night, relying instead upon Sterling’s recounting. Vol.2, Tr. 289. When asked by Respondent’s counsel “So everything that you haveabout what Mr. Smitherman said comes from what Sherry told you; is that right?”Thielen responded, “And Zach [Salyers]. Yes.” Vol. 2, Tr. 294. The Court wouldnote that Thielen’s remarkable admission was of the same order as Sterling’s –both individuals had a predetermined conclusion about the matter. 

 

** **

**II.           ****Additional Analysis and Discussion**

 

Section 105(c)(1) of theMine Act provides:

 

Noperson shall discharge or in any manner discriminate against or cause to bedischarged or cause discrimination against or otherwise interfere with theexercise of the statutory rights of any miner, representative of miners orapplicant for employment in any coal or other mine subject to this chapterbecause such miner, representative of miners or applicant for employment hasfiled or made a complaint under or related to this chapter, including acomplaint notifying the operator or the operator's agent, or the representativeof the miners at the coal or other mine of an alleged danger or safety orhealth violation in a coal or other mine, or because such miner, representativeof miners or applicant for employment is the subject of medical evaluations andpotential transfer under a standard published pursuant to section 811 of thistitle or because such miner, representative of miners or applicant foremployment has instituted or caused to be instituted any proceeding under orrelated to this chapter or has testified or is about to testify in any suchproceeding, or because of the exercise by such miner, representative of minersor applicant for employment on behalf of himself or others of any statutoryright afforded by this chapter.

 

30 U.S.C. § 815(c)(1).

 

It is noted that Congress adopted the Mine Act “to protect thehealth and safety of the Nation’s coal or other miners.” *Thunder Basin CoalCo. v. Reich*, 510 U.S. 200, 202 (1994). Further, as noted in thelegislative history for that Act, Congress intended for Section 105(c) “to beconstrued expansively to assure that miners will not be inhibited in any way inexercising any rights afforded by the legislation. This section is intended togive miners, their representatives, and applicants, the right to refuse to workin conditions they believe to be unsafe or unhealthful and to refuse to complyif their employers order them to violate a safety and health standardpromulgated under the law.” S. REP. No. 95-181, 36 (1977).

 

**Decisional Law in Discrimination Mattersunder the Mine Act**

For over forty years the Commissiondecisions of *Sec’y on behalf of Pasula v.Consolidation Coal Co., 2* FMSHRC 2786,2799 (Oct. 1980), and *Sec’y on behalf of Robinette v. United Castle Coal Co.*,3 FMSHRC 805, 817-18 (Apr. 1981) have been the touchstone for evaluatingdiscrimination claims under the Mine Act. Under those decisions, the standardfor making a prima facie case of discrimination under Section 105(c)(1) of theMine Act, has been expressed as follows: 

 

Under *Pasula-Robinette*, a miner allegingdiscrimination under the Act establishes a prima facie case of prohibiteddiscrimination by proving that he engaged in protected activity and that theadverse action complained of was motivated in any part by that activity. *Pasula,2* FMSHRC at 2799; *Robinette*, 3 FMSHRC at 817-18. Theoperator may rebut the prima facie case by showing either that no protectedactivity occurred or that the adverse action was in no part motivated byprotected activity. *Robinette*, 3 FMSHRC at 818 n.20. If theoperator cannot rebut the prima facie case in this manner, it nevertheless maydefend affirmatively byproving that the adverse action also was motivated by the miner's unprotectedactivity and the operator would have taken the adverse action against the minerfor the unprotected activity alone. *Id.* at817-18; *Pasula*, 2 FMSHRC at 2799; *se**e also Eastern Assoc. Coal Corp. v. FMSHRC*, 813 F.2d 639,642 (4th Cir. 1987). 

 

*Sec. obo Riordan v Knox Creek Coal,* 38FMSHRC 1914, 1919 (Aug. 2016). *See, also, Thomas v CalPortland Co.,* 42FMSHRC 43 (Jan. 2020).

 

            Recently, the Court of Appeals for the Ninth Circuittook issue with the *Pasula-Robinette**framework,holding that, because the language of Section 105 (c) of the Mine Act provides,in relevant part that “[n]o person shall discharge or in any manner discriminateagainst ... the exercise of the statutory rights of any miner ... in any coal orother mine subject to this chapter****because****such miner ... has filed or made a complaintunder or related to this chapter,” that language “requires a miner asserting adiscrimination claim under Section 105(c) to prove but-for causation.”**Thomas v. Calportland**, 993 F.3d 1204,1209-1211, (April 14, 2021) (emphasis added).*

* *

*Because the Warrior Met mine in this matter islocated in Alabama, and therefore outside of the states within the purview ofthe Ninth Circuit, its decision is not binding on the Commission. However, forthe reasons articulated in this decision, the Court, separately applying boththe**Pasula-Robinette**test****and the Ninth Circuit’s**but for**test, finds that Mr.Smitherman meets both tests.*

* *

*Accordingly, as set forth in the findings offact, Juan Smitherman engaged in protected activity by raising safety concerns;he suffered adverse action as was terminated because of that activity, and theRespondent failed to rebut the established prima facie case. Further, becausethe Court rejected the asserted affirmative defense that the Complainant wassleeping and/or loafing, finding that neither was established by credibleevidence, no unprotected activity was proven.*

* *

*Additionally, to be plain, applying thestricter standard set forth in**CalPortland,*theCourt separately finds that Respondent Warrior Met would not have terminatedJuan Smitherman’s employment *but for* his invoking his protected activityunder the Mine Act and to put it differently, Warrior Met’s action interminating would not have occurred *but for* Complainant Smitherman’sprotected activity of raising safety concerns and that the putative reasonsadvanced by the Respondent mine were little more than a ruse, as neither theclaim that the Complainant was sleeping, nor that he was loafing, was crediblyestablished.[19]

~~ ~~

** **

**III Summary Remarks**

** **

Asset forth above,****Complainant Juan Smitherman established a primafacie case.   He engaged in protected activity, primarily by raising the safetycomplaint about insufficient ventilation on the February 28-March 1 owl shift. Thisissue made up the core of Smitherman’s complaint, but he also testified to aseries of other safety disputes he had with section foreman Salyers, such asthe early February 2021 dispute about bolting without dust bags. Though it istrue that Smitherman did not include every safety issue he raised with Salyersin his complaint, that is not a prerequisite to receiving testimony about suchissues, as the Complaint represents the broad outline of its basis.[20] Further,the Court’s decision is based on the core charges. Those core charges wereestablished and by themselves were sufficient to find for the Complainant. Whilethe other safety issues were part of the record, they were not determinative ofthe outcome, but they did provide useful context for the two days directlyinvolved in the Complainant’s termination. *Sec’y of Labor, MSHA v. Hopkins CtyCoal, LLC*,38 FMSHRC 1317, 1323 n. 9 (June 2016).

 

Obviously, by hissuspension and termination, Mr. Smitherman suffered adverse action. Further, asdescribed above, the Court rejects the claim that Salyers was oblivious to thecore protected activity involving the fly pads and that Smitherman was the sourcebehind it. Salyers and Smitherman had a history together and certainly theformer, as the Complainant’s supervisor, was able to put two and two together. 

 

As set forthabove, in multiple ways, and founded upon the Court’s credibility determinations,Salyers demonstrated his hostility towards the Complainant’s protected activity.Regarding the core events, assigning Mr. Smitherman, though the senior roofbolter, to run the Lo-Trac was itself indicative of such hostility. That, inthe course of the same day as that assignment, Salyers would find thatSmitherman was *both* loafing, not doing work and sleeping is telling. Suchevents meet, *writ large*,**the adverse action ‘close in time’consideration.[21]

The Respondent’s attempted rebuttal, as discussed above, assertingthat its suspension and termination of the Complainant were not motivated byprotected activity have been rejected by the Court as pretextual. Apretext may be found where Respondent’s justification is “weak, implausible, orout of line with the operator’s normal business practices.” *Sec’y on behalfof Price v. Jim Walter Res., Inc*., 12 FMSHRC 1521, 1534 (Aug1990).Furthermore, cursory, superficial investigation into allegedemployee behavior undermines the credibility of the investigation. *Con-Ag,Inc. v. Sec’y of Lab.,*897 F.3d 693, 704 (6th Cir. 2018). Warrior Met’sinvestigation was not only superficial and cursory, but also biased.[22] Sterlingtook a written statement from Salyers, but not from Smitherman. She asked fewfollow-up questions when meeting with Smitherman, appearing uninterested inunderstanding his side of the story.  When Smitherman called Sterling to informher of his safety concerns with Salyers, Sterling and Thielen’s response was toconduct casual, informal, superficial questioning of miners on Smitherman’ssection. At the hearing Sterling frequently admitted to not recalling basicfacts about her investigation process, which either indicates an investigationdone carelessly or an attempt to obfuscate the facts. The investigation wasbiased in that Sterling and Thielen, upon realizing there were no otherwitnesses to the supply hole confrontation other than Salyers and Smithermanthemselves, opted to believe Salyers because he is a supervisor. Vol. 2, Tr.249-250

 

In a real sense, Thielen and Sterling could not quite get theirdance duet together as to whether it was insubordination or sleeping that wasthe basis for Mr. Smitherman’s termination.[23] For that matter, Salyers’ himselfwas inconsistent as to which claim applied.

 

Last, as also discussed above, the Court finds that theComplainant’s protected activity was the genesis for his termination. Put inthe parlance of the Ninth Circuit, *but for*Mr. Smitherman’s protectedactivity, he would not have been terminated

** **

** **

** **

** **

** **

** **

** **

**CONCLUSION AND ORDER**

****

**Based on the foregoing, theCourt finds that the Respondent violated Section 105(c) of the Act bydiscriminating against Complainant Juan Smitherman for engaging in protectedactivity.**Respondent is hereby**ORDERED**to reinstate Juan Smitherman to his former position with Warrior MetCoal with the same pay and benefits as he would have accrued had he remainedemployed. The mine shall remove from Juan Smitherman’spersonnel file all mention of any employment action stemming from thisincident.

** **

**Other Terms of Relief**

 

**Counsels are Ordered** to confer duringthe next fifteen (15) days in order to determine if there can be agreement asto the terms of relief for Complainant Juan Smitherman and to notify the Courtas to the results of these discussions. Section 105(c)(3) of the Act provides,in pertinent part: Whenever an order is issued sustaining the complainant’scharges under this subsection, a sum equal to the aggregate amount of all costsand expenses (including attorney’s fees) as determined by the Commission tohave been reasonably incurred by the miner ... for, or in connection with, theinstitution and prosecution of such proceedings shall be assessed against theperson committing such violation.” 

 

**Counsels are Further Ordered** at that time tostate their specific areas of disagreement, if any, and if they believe that afurther hearing may be required on the remedial aspects of this matter, to sostate that, identifying the grounds for their positions.[24]

 

Typically, reinstatement to theComplainant’s former position, back pay with an appropriate interest rate,medical expenses, if any, benefits, such as pension contributions, if any, andlost overtime, are among the remedial matters that may be present. The partiesare also directed to address the impact of the strike against the Respondent’smine as it affects the remedies due. In addition, the remedies typically alsoinclude: expungement from Juan Smitherman’s personnel file of all references tothe unlawful disciplinary action taken against him, including any suchreferences to the events and circumstances associated with his wrongfultermination, from any other records maintained by the company; and a posting ofthis decision at all of its mining properties where Respondent operates, placedin conspicuous, unobstructed places where notices to employees are customarilyposted, for a period of 60 days, together with a posting by Warrior Met at itsmining properties that it will not violate the Mine Act. The issue of MSHA’scivil penalty also is to be addressed including, if possible, a settlement onthe amount.

 

 

 

 

The Court retainsjurisdiction in this matter until the specific remedies to which Mr. Smithermanis entitled are resolved and finalized. Accordingly, this decision will notbecome final, and therefore not appealable, until an order granting specificrelief and awarding monetary damages has been entered. Per the above, Counselsare directed to discuss the issues of the appropriate relief and to report theresults of their discussions in writing to the Court within 20 calendar days ofthe date of this order.

 

 

**SO ORDERED****.**

** **

** **

** **

** **

****/s/ William B.Moran

William B. Moran

Administrative LawJudge

 

 

Distribution:

 

C.Renita Hollins, Esq., Mathew Shepherd, Esq., Office of the Solicitor, U. S.Department of Labor, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W.,Room 7T10

Atlanta,GA 30303, hollins.cordelia.r@dol.gov, shepherd.matt@dol.gov

 

TimothyJ. Baker, Esq., United Mine Workers of America,18354 Quantico Gateway Drive

Suite 200, Triangle, VA 22172, tjbaker@umwa.org

 

JuanSmitherman, 924 Aster Place, Helena, AL 35022, juansmitherman@bellsouth.net

 

Allen B. “Josh” Bennett, Esq., Brock Phillips, Esq., MaynardCooper & Gale, P.C.

1901 Sixth Avenue North, Regions Harbert Plaza Suite 1700, Birmingham,AL 35203

jbennett@maynardcooper.com, bphillips@maynardcooper.com

 

GuyHensley, Warrior Met Coal Mining, LLC, 16243 Highway 216, Brookwood, AL 35444

guy.hensley@warriormetcoal.com

----

[1] A virtual hearingwas held on October 20 and 21, 2021. The Secretary, Complainant’s counsel, andthe Respondent each filed a post-hearing brief and a response brief. Allcontentions were fully considered by the Court and are addressed in thisDecision.

 

[2] The Court’sfindings of fact are based on the record as a whole and on observation of thewitnesses as they testified. The Court noted the witnesses’ demeanor whiletestifying, whether they were forthcoming in answering questions or evasive.When witnesses’ accounts differed, the Court considered the witnesses’interests, corroboration of their testimony or lack thereof, and consistency orinconsistency between the testimonies of the various witnesses. In reaching itsfindings and determinations, the Court considered the entire record, includingthe parties’ post-hearing briefs and reply briefs. Omission of discussion ofparticular aspects of testimony as well as particular contentions made in theparties’ post-hearing briefs does not mean that such aspects were ignored.Rather, the Court determined that such discussions were unnecessary, as theywere deemed to be subsumed in the Court’s findings of fact with discussion and/orin the analysis with further discussion sections of this decision. 

 

[3] Salyers elaboratedthat a fly pad is a piece of belt line, about a 4-foot-wide, and 7 to 9 feet inlength. When installed, they need to touch or overlap and thereby create a wallso that when air hits the pad it will move in a certain direction. They aredistinct from curtains because a piece of equipment can pass through pads,without ripping them down. Vol. 1, Tr. 50-51. 

 

[4] As Counsel forthe Secretary pointed out during redirect examination of the Complainant,Salyers never asked Smitherman why he wanted to be transferred to the otherside of the mine. Vol. 1, Tr. 298. The Court would note that such a questionfrom Salyers would have been natural and expected, unless one already knew thereason. 

 

[5]A bundle consists of approximately 20 to 25 pipes. Vol.1, Tr. 80. 

[6]The following is the text ofSalyers’ statement: “at Section arrival (11:45 p.m.), I gave Juan Smithermanorders to operate Sec. Lo Trac and that his Job would consist of moving upsupplies. The supplies that I ordered Juan to move up were block and 2 ̎ waterline. I also gave Juan specific orders where to place these supplies. Neitherthe water line nor the block was placed where I asked for it to be placed bythe end of the shift. When I seen Juan at his dinner break he told me he hadjust unloaded the flat car and I asked him where the 2 ̎ water line was that Ihad asked for + he said there was 11 joints 2 crosscuts outby, I told him thereis a whole pile and asked him if he looked in every long block along ourtravelway and he replied yes. I told him then, that now that our block hadarrived and been unloaded from the flat car make it priority to get it to thesec. + stock out the night return stopping, he said okay. Later in the shiftaround 6:00 a.m. I walked towards the supply hole at break 6 and found Juanslumped down in the operating deck of the Lo Trac with his hat off his head +his light turned off. I asked Juan what he was doing and he said he was takinga break. I told him he had a lunch break and that I couldn’t see that he hadmoved anything up. He said he hauled block to the sec. across from the charger.He said he had to unload the flat car today, I told him he shouldn’t have eventaken an hour. Then he said he was having trouble passing a place by the track.I told him the other Lo Trac men have no trouble. I asked him why he didn’tseem to care if we got any work done on this section, he replied that he didnot want to work on 4 sec. and I told him I couldn’t help him because that isnot my decision. I then told Juan I was writing him up when I got outside andthat I did not want to catch him again. He replied do what you got to do and Iwalked back to the sec.*at 600 a.m. 3 loads had been moved up, 1 bulk bag ofdust 2 pallets of block (neither pallet at right return) *The Lo Trac was notrunning when I found Juan and a pallet of block was on the forks. 3 – 2- 21 -ZacharySalyers” Ex. P 38, Ex. R 5. 

[7] Complainant’sMSHA Discrimination claim, admitted as Ex. P 2, is dated March 31, 2021 and setsforth under the “Summary of Discriminatory Action,” section, the following: “On3-7-21  I was working on four section. I walked across from 3 entry to 2 entry.I noticed that the roof bolter was in #2 entry in front of the slant that hadjust been cut, it was the second cut in. Their was no slider or line curtain upin the slant. They were in the process of putting the drop board across #2entry. At this point no air was being forced into the slant. I assisted inputting up the drop board. I went to lunch when I got back to the bolter it wasin the slant. Their was no ventilation because the fly pads had not ben hung onthe drop board. I told the bolters that I would not bolt the slant until thefly pads were hung and that the shouldn’t either. At this point the slant hadbeen unventilated for at least 40 minutes. The other roof bolters found Zackand told him what I said about 30 min later the fly pads were hung. On 3-8-21 Igot to work about 15 min early and told Zack that I didn’t want to be a part of4 section any more because of the incident the day before. He said that hewould work on it. When we got to the section he told me that I wouldn’t beworking on the roof bolter and that I would be working out by. At the end ofthe shift he asked me how many pallets I have moved and I told him. He started harassingme saying what a sorry job I had done and threatened me with a write up. On theway out of the mine he told me to go to the manager’s office. They gave me 5days off with the intent to fire me. I told them that had happened and thatthis was retaliation and they said that they would investigate. After the 5days they said that they were going ahead with termination. I am seeking backpay and reinstatement.”

 

[8] Smithermaninitially gave the date as February 5; upon cross-examination, he freely concededhe was not certain of the exact date and that it may have been February 2. Vol.1, Tr. 130, 247.

 

[9] Explaining thesignificance of dust bags on a roof bolter, Smitherman explained “It's a – it’sa – like a vacuum cleaner bag. If you ever changed a vacuum cleaner bag, that’spretty much what it looks like.” Tr. 132. The dust bag sits in the dust box onthe roof bolter. Tr. 133. Without the bag, the dust goes into the box and onewould later need to shovel that dust out of the box. Tr. 134. That process,shoveling it out, creates a lot of dust. *Id.*Smitherman cared about thisbecause use of the bag keeps respirable dust down in the mine. *Id*. Healso asserted that the roof bolter he was using normally had dust bags. *Id*.

[10] Explaining therole of fly pads and the drop board, Smitherman testified that “The drop boardis the – it’s a long piece of wood about 20 – a little less than 20 feet long,and it – it’s mounted to the ceiling – the roof bolter mounts it to theceiling, and that’s to hold the fly pads. If you ever walked in – seen like anindustrial freezer and they have those plastic pads that they go in – that theforklift goes in and out of, that’s what – that’s what – what a fly pad does. Butit still – it allows people to go through it, but it still directs air. Okay? That'swhat the fly pads are.

Andthen the curtain line is supposed to start at the end of that fly pad, and itextends out until you cut. And then like I said, this was the second cut in. Sothe first cut, normally, you don't put one because you can go in 10 feetwithout putting one up.” Vol. 1, Tr. 145-146.

 

[11] As noted, theComplaint and other records in this case erroneously listed the dates of theshift at issue as March 7 and 8, rather than March 1 and 2, 2021. Both partiesagree that the latter dates reflect the correct days. Vol. 1, Tr. 189-90, 199-201.

[12] This was a taskrequiring some exertion on Smitherman’s part. His testimony was uncontradictedthat the rock duster is used to pull dust. It is about 4 feet long and 2 feetwide, and all metal. It has a big hopper on top of it, and a hydraulic pump. Hedescribed it as “real heavy, weigh[ing] about 150 pounds.” Vol 1, Tr. 166.

 

[13] Later, onredirect by the Secretary, Smitherman affirmed he had moved up all the blockand the rock dust by the end of the shift. Vol. 1, Tr. 299-300.

 

 

[14] Respondent’sCounsel only alluded to the citation. It was not offered in evidence. 

[15] The exhibit, P 4,has some oddities to it. A single page, it is dated effective 3 -8-2020 butsigned 3-8-2021. Under the reason for the disciplinary action, it recitesaspects of Work Rule 1, and then it adds “violation of work rule #5 with noelaboration. One might have expected more detail for such a “record” ofdisciplinary action and that it would have had consistent dates. To the Court,its summary nature reflects that it was merely assertions on a piece of paperwhich were singularly unilluminating. 

 

[16] At first,Sterling testified about Banks cutting coal, and then when reminded byRespondent’s counsel corrected herself, that she “believe[d] he was a roofbolter,” then adding “Yeah, bolting without a curtain.” Tr. 196. When nextasked if “Mr. Smitherman’s report to [her was] that there was bolting withoutcurtain or cutting without curtain,” Sterling responded that she didn’t “rememberthe verbiage. I assumed it would be bolting because that was what their jobassignment was.” *Id.*

[17] From context inthe transcript it is clear that counsel for the Secretary and Sterling brieflyconfused Smitherman and Salyers, using Smitherman’s name when she clearly meantSalyers. Vol 2, Tr. 213.

 

[18] The Court’s viewthat Sterling’s ‘investigation’ was a conclusion first, followed by ahalf-hearted inquiry, is also reflected by her remark that “Juan *kept saying*that he did not like the way Zach [Salyers] operated and he didn’t want to workfor him.” Tr. 212 (emphasis added). Yet, while the Complainant *kept saying*hehad an issue with the way Salyers operated, she did not inquire further. 

[19] It isnoted that the prima facie case remains unchanged, evenwithin the Ninth Circuit, at least in terms of the preponderance of theevidence standard. As before, in the absence of direct evidence ofdiscrimination, the miner may bring forward indirect evidence ofdiscrimination, such as the operator’s knowledge of the protected activity, theoperator’s hostility towards the protected activity, the coincidence in time betweenthe protected activity and the adverse action, and disparate treatment of thecomplainant. *Sec’y of Labor on behalf of Johnny Chacon v. Phelps Dodge Corp.*, 3 FMSHRC at 2510. 

 

[20]TheCourt has observed that Smitherman’s action is not limited only to thosematters specifically addressed in his initial MSHA complaint, but rather to anyissue arising in the MSHA investigation.*See Carmichael v. Jim Walters Res.,Inc*., 20 FMSHRC 479, 484 n.9 (May 1998) (“[w]hatever its value as evidence,the complaint to the Commission, much like a complaint in a court proceeding, *isa basic pleading* that serves to frame the issues to betried.”) (emphasis added). The Commission, in *Thomasv. CalPortland Co.*, held that the miners’ claim need not be limited to theprotected activities he alleged in his initial section 105(c)(2) complaint, butrather could include any matter investigated by MSHA in response to the section105 claim. *Thomas v. CalPortland Co.,*42 FMSHRC 43, (Jan. 2020), citing *Hatfieldv. Colquest Energy, Inc.,*13 FMSHRC 544, 545-46 (Apr. 1991). TheCommission remarked that Hatfield “only precludes a miner from broadening his complaint to request relieffor an *adverse action* that was neither pled in the initialadministrative complaint or investigated by the Secretary after receipt of suchcomplaint.” *Id*. at *11, (Commissioners Jordan and Traynor, concurring).This is important, because “miners are comparatively less likely tospecifically reference in their initial complaint other allegations critical tothe evidentiary burden of establishing a discrimination case, such as protectedactivity and unlawful motivation, because their importance is only apparent tothose familiar with the legal requirements of our *Pasula-Robinette*framework.” *Id*. at 57.

[21]The Commission has heldthat the Secretary may establish a non-frivolous motivational nexus simplythrough the operator’s knowledge of protected activity and *temporalproximity* between the protected activity and the adverse action. *Sec’yof Labor on behalf of Stahl v. A&K Earth Movers, Inc.* 22 FMSHRC 323,325-26. (March 2000). That case involved eight days. This matter came about inless than 48 hours.

 

[22] That the‘investigation’ had the aroma of conviction followed by investigation is plainwith Sterling’s examination of Smitherman’s personnel file. Such an examinationwould not yield any information as to whether the assertion that theComplainant was loafing or sleeping was true. It points only to a search forpotential assistance to a predetermined outcome. 

 

[23]Tellingly,as discussed above, Warrior Met Coal’s management could not even consistentlydefine an “unauthorized break.” At first, they insisted it is simply when aminer takes a break without asking their supervisor first, but then they concededthat miners may take breaks for water or to use the restroom without consultingtheir supervisor. Tr. 192, Day 2 228-232 When pressed, Sterlingcould not define the threshold at which a miner would require supervisorpermission for a break, except to insist that Smitherman was on the wrong sideof it. Tr. Day 2 228-232 The Commission has held that “an operator doesnot establish a *Pasula-Robinette* affirmative defense if a work rule orpolicy that the miner is alleged to have violated, was applied discriminatorilyto the miner or in a manner deliberately calculated to render his compliancedifficult or impossible.” *Sec’y on behalf of Price v.Jim Walter Res., Inc*., 12 FMSHRC 1521, 1534 (Aug1990).

 

[24] While notaddressing all aspects of the relief sought, at the hearing the Secretaryidentified that he is seeking permanent reinstatement for Smitherman, back payfrom the day of suspension up to the date of temporary reinstatement,out-of-pocket medical and dental expenses incurred during the period oftermination, and damages and penalties calculated by the Secretary, seeking$20,000.00. Vol. 1 Tr. 10-11.