By Ellen Smith
ALJ Jacqueline Bulluck raised a proposed fine of $30,000 to $45,000 against a company for firing a known whistleblower after the company tried to hold the rank-and-file miner responsible for his supervisor’s breach of the lock-out tag-out policy.
The miner, Carlos Lopez, had worked for Sherwin Alumina, located in Gregory, Texas, as a plant maintenance mechanic since 1974, and served on the plant’s safety committee. He had made numerous complaints to MSHA and to Sherwin management. He also made comments during a series of “informational meetings” in August 2011 entitled the “MSHA Threats.” The meetings were held because the plant was close to being placed on PPOV status. Lopez made comments that he believed there should be more of an on-site presence of MSHA inspectors.
On Sept. 12, 2011, Lopez was working in an area of the plant and getting it ready for cleaning. This necessitated the miner locking and tagging out valves on three levels of the plant from which the heater can be accessed. His immediate supervisor bypassed the LOTO tags, resulting in Lopez getting sprayed with condensate. The safety investigator was immediately called, and the safety investigator and supervisor breached the LOTO area a second time. The safety supervisor claimed in testimony that he had a “brain fade,” when he did this.
Lopez was instructed to go to the medical unit to get checked out, and Lopez reported the breach of his tags.
Two days later, the company held a “root cause analysis meeting.” There were slight discrepancies in the statements of Lopez, his immediate supervisor and the safety supervisor. It was noted by Judge Bulluck that during this time, Lopez’s immediate supervisor was on a one year probation period because of performance issues and claims that he had worked unsafely. Lopez’s supervisor claimed he had invited Lopez to accompany him to perform the work. Lopez’s version of the events did not include this invitation.
Two days after the meeting, the company locked Lopez out of the plant, but told him to come back to “put his story on the table,” and allow Lopez to correct statements which they claimed were inaccurate. The union representative said that Lopez was too stressed out to give a statement, and Lopez would not discuss the events any further.
After this meeting, Lopez was informed that he was suspended for five days for failing to notify his supervisor of the LOTO status, and obstructing an ongoing safety investigation. He was then fired shortly after that. The immediate supervisor was also fired, but the safety supervisor, only received a one day suspension and four days administrative leave.
Fired Because of Protected Activities
Bulluck said the company conceded that Lopez participated in “protected activities” before his firing, including three hazard complaints made to MSHA, reporting a leaking valve, and expressing his opinion at the MSHA Threat meeting. The company also admitted that the other two workers breached Lopez’s LOTO tags.
The judge said there was a strong temporal connection between Lopez’s discharge and his firing, and “considering that Sherwin was in a damage-control mode to avoid PPOV status, the impetus to silence an established complainer is evident.”
Judge Bulluck also noted management’s reactions to Lopez’s complaints and said the upper-level manager’s dislike of Lopez was so well-known that it became the subject of jokes by several miners. She said she fully credited the union reps’ testimony that the CEO “viewed Lopez so negatively, that he believed Lopez to have intentionally created safety hazards to bring MSHA to the plant. ... Since the [CEO] had expressed his disdain for Lopez to hourly workers ... it is highly probable that he made disparaging remarks about Lopez to supervisors...”
The company’s “disdain for Lopez's tendency to contact MSHA rather than address his safety concerns through Sherwin’s internal procedures, as well as his public advocacy for MSHA presence at the plant, also indicate hostility,” Judge Bulluck said.
Judge Bulluck was particularly outraged with the safety supervisor who “demonstrated highly egregious conduct,” who “directed a subordinate supervisor to repeat his breach of Lopez's tags ... thereby placing Lopez in harm's way a second time.”
She called the company’s treatment of Lopez a “reversal of expectations ... the only reasonable rationale for such lopsided treatment is Lopez's reputation as a whistleblower. He was unreasonably saddled with bearing the burden of his supervisor’s reckless conduct.” Sherwin’s actions were “a sham investigation that amounted to a witch hunt designed to fire Lopez.”
That Lopez “failed to warn his supervisors against breaching his LOTO tags, and that he lied during the ensuing investigation are unworthy of credence,” Bulluck wrote. “The sheer weight of the circumstantial evidence makes it far more likely than not that Sherwin’s reasons for terminating Lopez were pretextual.”
In raising MSHA’s proposed penalty from $30,000 to $45,000, Judge Bulluck said, “The willful decision to terminate Lopez, a well-known safety advocate who had a history of reporting safety concerns to management and contacting MSHA, was blatant and influenced by the highest levels of Sherwin's management. Therefore, the violation was very serious, since it not only deprived an otherwise good worker of employment, but also served as a chilling effect on other miners who would consider raising safety concerns within the company or with MSHA.”
SHERWIN ALUMINA, 3/19/2014 , Docket No. No. CENT 2012-237-DM, 21 MSHN D-996