By Ellen Smith
Judge John Kent Lewis fined a mining company $20,000, and said it was highly negligent where a miner had been temporarily suspended, given a written warning and a negative evaluation, after complaining to management on three occasions about a possible electrical fan violation in a laboratory, which was then cited by MSHA.
Judge Lewis called the company’s actions a “textbook” example of discrimination.
The company, BHP Mining, took the actions against Don Arnold after he had raised concerns about whether a ventilation fan in a laboratory met National Electric Code requirements. Arnold, who was an electrician, had receive a work order on Jan. 19, 2013, to repair some equipment in the laboratory. He became concerned after seeing an open-faced motor he found covered in dust. It was noted that there was propane in the laboratory, and Arnold worried about explosive mixtures of gases. He told his supervisor of his concerns and returned to work.
On Jan. 22, 2013, Arnold showed his immediate supervisor, who did not know anything about the installation, but the supervisor said he did not see a hazard, and said that they should wait, and not tag it out until they knew more about the fan motor and installation. Tagging out the fan would mean the company could not use the laboratory.
Arnold was then assigned on Feb. 14, 2013, to conduct an electrical inspection at the lab, and noticed that nothing had been done about the motor, so he contacted the mine’s safety specialist – a former MSHA inspector – and asked about the fan motor. At that time, Arnold told the safety specialist that he would lodge a 103(g) hazard complaint with MSHA if the issue was not addressed. With the company’s safety specialist with him, Arnold took pictures with his cell phone of the dust covering the motor. He asked the safety specialist if he should tag out the motor, but the safety specialist said he did not know if there was a violation, and he told Arnold not to tag it out.
Arnold then contacted the union president, because he was afraid of retaliation if he called MSHA. The union president believed there was an imminent danger because Arnold had told management on three occasions, and nothing was done, so the union president made the hazard complaint to MSHA.
Violation
An MSHA inspection found a violation and cited the company. The MSHA inspector said that the company official who accompanied the inspector said several times he knew that Arnold had called in the complaint and expressed anger. The inspector said he had to tell the company official to stop discussing the issue. A confrontation also ensued between Arnold and another member of mine management, and MSHA inspectors said they had to step between them to prevent the situation from escalating.
Several emails ensued between company officials, and Arnold was placed on administrative leave without pay, for an indefinite period of time. He was allowed back to work a week later, but was written up for violating company policy by taking photographs and giving them to MSHA; failing to go up the chain of command before calling MSHA; and failing to tag out an imminent danger, even though his supervisors advised against the tagging out of the motor. He also had his employee evaluation changed by the company to reflect a lower safety rating for failing to tag-out the equipment.
The company testified that Arnold’s calling MSHA, even though he did not place the call, was “vindictive,” and a company witness said he believed that Arnold would stage an unsafe condition as a pretext to call in a 103(g) complaint. The company admitted they suspended him in part for failing to follow the chain of command, and said they had even asked an MSHA inspector to explain that miners should follow the chain of command.
Judge Lewis said none of the company’s arguments were compelling, and showed “a lack of understanding as to the nature of discrimination under the Mine Act.”
Lewis said company witnesses “seem oblivious to the fact that their open admission to antipathy toward going outside of the ‘chain of command’ to MSHA was an explicit, open admission to hostility toward protected activity. If anything constitutes protected activity under the Mine Act, then filing (or causing the filing) of a safety complaint with MSHA must be such.” Lewis said while the company “is certainly free to ask miners to bring their safety concerns to the company, it cannot punish miners for speaking to MSHA at any time. Euphemistic language about chain of command does not change the fact that in this matter, Arnold was disciplined, in part, because he complained to MSHA.”
Written Rule
Even if there was a written rule for requiring miners to “follow the chain of command” before contacting MSHA, Judge Lewis noted that Arnold told company supervisors on Jan. 9, Jan. 22, and Feb. 19, and management was aware of the condition. Lewis said that Arnold was not required to being his concerns to “every level of management” and then wait until one of them took action. The company’s insistence on chain of command “is in reality a post-hoc justification for hostility to miners contacting MSHA,” Lewis said.
The company argued that Arnold should have tagged out the equipment when he thought there was a violation, and this is why he received a lower safety rating on his employee evaluation. The change in the safety rating did not affect his “overall” evaluation the company said. In addition, the company said it could have added in the fact that Arnold took the photos against company policy, but it did not want to “pile on” additional warnings. It also could have fired him.
However, the three management officials who knew of Arnold’s concerns, and saw the motor, could have also tagged out the equipment, yet they were not suspended from work, Lewis noted. The management officials were “similarly situated” and had the power to tag out the motor, yet it was only Arnold who was indefinitely suspended without pay, received a written warning, and lowered performance evaluation.
“This is a textbook example of disparate treatment. Arnold was treated more harshly for engaging in the exact same behavior as his superiors,” the judge said, adding that one management official was more qualified than Arnold, but failed to act on the hazard.
Lewis also said in the decision that in cases such as this where a miner has complained to MSHA, companies must “justify all discipline,” after that complaint is made.
In this case, “If Arnold had not caused a 103(g) inspection and citation, matters would have continued as they had for the previous month: the motor would not have been locked out; management would have known it was not locked out; and no one would have cared. Arnold would not have been suspended; he would not have received a written warning; and he would not have received a more pejorative evaluation. The timing and nature of the punishments in this matter confirm the pretextual nature of the justification.”
In assessing a $20,000 penalty, Judge Lewis said the company’s arguments and justifications were “weak and implausible” and “merely a pretext to excuse unlawful discrimination.”
Sec. of Labor o/b/o Dona Arnold v. BHP Navajo Co. and its Successors; 4/24/2015, Docket No. CENT 2013-541-D; 22 MSHN D-50.