WEST 2018-0223-DM (Nov. 6, 2019) (ALJ Gill)

The miner filed a discrimination complaint against his employer alleging he was terminated after engaging in protected activity. The miner was employed as a heavy equipment mechanic for 22 years and served as a union steward and miners’ representative at the time of his termination.

Specifically, the miner alleged he was fired for raising two safety-related issues – a hose cutting blade that generated smoke in the hose shop and a haul road in the quarry area. The mine operator argued the miner was fired because he impersonated a manager. In particular, the miner wrote notes on other employee paycheck envelopes as if he was a manager. Some of these notes were viewed as harassment of fellow workers and likely created unjustified employee expectations. The miner admitted to writing on the envelopes.

Judge Gill first analyzed whether the miner established protected activity. Regarding the smoke in the hose shop the miner believed the mine operator should have replaced the chop saw blade to eliminate excess smoke which he believed was dangerous to breathe. The miner claimed he spoke with an environmental technician for the mine operator in January 2017 about this issue. The technician could not determine if the smoke was toxic and in the interim the miner conducted research and found a new blade he thought the operator should purchase. Thereafter, a fellow heavy equipment mechanic submitted the request for a new blade. During this time the operator posted signs directing workers to wear a respirator when cutting hoses. The operator decided not to purchase a new blade at that time and the miner allegedly responded by stating he would go to MSHA with a safety complaint. Ultimately, after the miner raised the issue of a new blade again two months later, the operator purchased the blade but approximately six months later changed the entire ventilation system. For the second issue, the miner, in his capacity as a miners’ representative, spoke to management about a near miss incident on a haul road. The operator looked into the issue but at the time of the report by the miner operations had ceased on the haul road and it was shut down.

Judge Gill found the miner engaged in protected activity when he raised issues with the blade and haul road and these issues were close in temporal proximity to his termination. Nevertheless, Judge Gill found the mine operator’s management who made the decision to terminate him because of his admitted activity of writing on other employees’ payroll envelopes were not aware of his protected activities. Moreover, according to Judge Gill, even if the miner established his prima facie case of discrimination, the mine operator presented an affirmative defense that the termination was motivated by unprotected activity, i.e., his admitted conduct in writing messages on employee payroll envelopes.