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Pendley v. Federal Mine Safety & Health Review Commission

April 2, 2010


On Petition for Review of an Order of the Federal Mine Safety & Health Review Commission. No. KENT 2006-506-D; KENT 2007-383-D.

The opinion of the court was delivered by: Jon P. McCALLA, Chief District Judge.


Pursuant to Sixth Circuit Rule 206

Submitted: January 15, 2010

Before: BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.*fn1

McCALLA, Chief D. J., delivered the opinion of the court, in which GILMAN, J., joined. BOGGS, J. (pp. 18-20), delivered a separate opinion concurring in part and dissenting in part.


This cause is before the Court on a petition for review of an order of the Federal Mine Safety & Health Review Commission (the "Commission"). Petitioner Lawrence L. Pendley, a coal miner, was terminated by his former employer Highland Mining Co. near the time that he both made federally protected safety complaints and engaged in significant workplace misconduct. Petitioner was temporarily reinstated, and he claims thereafter to have suffered additional discrimination for raising safety concerns. Petitioner's claims were heard first by a Commission administrative law judge ("ALJ"), who ruled against Petitioner in part. The ALJ's decision was appealed to the Commission, which affirmed the ALJ. Petitioner now seeks this Court's review.


a. Factual Background

Petitioner began working at Highland's No. 9 Mine, located near Morganfield, Kentucky, in 2004. He started as a "roof bolter" and later became a "maintenance parts runner," a position in which he delivered parts and supplies to miners working underground. Beginning in May 2005, a series of physical and verbal incidents occurred between Petitioner and another miner, Jack Creighton. Late in 2005, mine management met with both miners and issued each a written "last and final warning" that further misconduct would lead to termination.

On November 29, 2005, Petitioner claimed to have been injured in a mine accident; he was riding a mantrip, a car that carries miners underground, which allegedly came to a sudden stop and injured his back. There was some dispute among miners, mine officials, and government investigators as to whether the mantrip stopped as Petitioner claimed. Shortly after the alleged accident, Petitioner returned to the surface and completed an accident report with the aid of a supervisor. Petitioner claims that when he later asked for a copy of the report, Highland's safety manager refused to give it to him and said that the report was "company material."

On December 15, 2005, Petitioner filed a safety complaint with the Mine Safety & Health Administration ("MSHA"). Another miner testified before the ALJ that it was widely known that Petitioner had spoken to MSHA. The MSHA inspector determined that Highland had failed to report the mantrip incident. On December 20, 2005, MSHA cited Highland for failing to report a mine accident in violation of 30 C.F.R. Part 50. MSHA thereafter opened a wider investigation of Highland's No. 9 mine and issued four other safety citations.

On December 21, 2005, a Highland manager singled Petitioner out for discipline. Petitioner signed in to work between 12:50 and 12:55 P.M. and marked his sign-in time as 1:00 P.M., which under the labor contract meant he would be paid from 1:00 P.M. There was testimony before the ALJ that it was customary to "round" the sign-in time to the nearest hour as Petitioner did. Since it was cold outside, and the mantrip was not available to transport Petitioner underground, Petitioner waited indoors in the commons area, a small room with a window through which miners could see the mine entrance and mantrip loading area. There was testimony that waiting indoors was the customary practice. Two other miners signed in shortly after Petitioner and waited with him. A few minutes after 1:00 P.M., Highland manager David Webb entered the commons area and chastised only Petitioner for waiting in the commons area after having signed in to work. Webb suspended Petitioner for three days. Webb claimed not to have seen the other miners with Petitioner, but the ALJ found Webb's testimony not credible.

The next day, December 22, 2005, Petitioner complained to the Secretary of Labor that Highland suspended him because he had engaged in protected activity; that is, because he asked for a copy of the mantrip accident report. On September 25, 2006, the Secretary filed a Mine Act Section 105(c) discrimination complaint, broadening Petitioner's complaint and alleging that Petitioner was suspended in retaliation for raising safety concerns. The Secretary and Highland settled that dispute, and a Commission ALJ approved the settlement on January 18, 2007. On February 11, 2007, however, Petitioner asked the Commission to vacate the settlement because he had not agreed to it and because he felt that it did not fully compensate him for his losses. The Commission ordered review of the issue on February 26, 2007, and on April 3, 2007 vacated the settlement and remanded the matter to the ALJ for further proceedings.

Several important events happened while Petitioner's petition to reopen his first Section 105(c) claim was pending. First, on March 19, 2007, Petitioner was involved in a verbal dispute with mine office staff regarding the payment of overtime wages. Two days later, Petitioner again was involved in a heated discussion with mine office staff about the payment of his overtime wages. After this second encounter with the mine office staff, Petitioner went to look for mine superintendent Larry Millburg because the office staff had told Petitioner that only Millburg could resolve the overtime issue. Petitioner could not find Millburg, so he dressed to descend into the mine and went outdoors to the mantrip loading area. When he was unable to immediately board a mantrip car, he returned to the office and resumed his verbal confrontation with the mine office staff.

Petitioner then left the office and returned to the mantrip load area to descend into the mine. When Petitioner arrived at the mantrip load area, mine personnel were conducting a safety test of the hoist. Creighton, with whom Petitioner had had previous altercations, was near or in the "slope shack" -- an open structure that houses the controls for the mantrip cars. According to a surveillance tape, Petitioner waited for one minute and twenty seconds before approaching the slope shack and pushing the button to call the mantrip. Petitioner and Creighton had some hostile physical contact -- pushing and shoving -- at the slope shack. At the hearing before the ALJ, there was conflicting evidence both as to whether it would have been apparent to Petitioner that the hoist test was in progress and as to whether Petitioner or Creighton began the pushing and shoving.

While these events were taking place, a MSHA inspector was at the mine conducting a Mine Act Section 103(g) safety inspection in response to the earlier request by Petitioner. The inspector completed his inspection and cited Highland for a safety violation. After the inspector delivered the citation to mine officials, mine superintendent Millburg summoned Petitioner to the office and gave Petitioner a termination letter indicating that, in accordance with the collective bargaining agreement, Petitioner would be suspended with intent to terminate his employment. Millburg's letter gave three reasons for the discipline: "[1] Harassment of office staff; [2] Interferrence [sic] with safety check of hoist potentially endangering the safety of those conducting the test; [3] Assaulting another employee." After the meeting with Millburg and Petitioner's union representatives, Petitioner left the mine. At the hearing before the ALJ, Millburg testified that he did not learn of the safety citation until after he had given Petitioner the termination letter.

The next day, March 22, 2007, Petitioner again complained to the Secretary of Labor, asserting that he had been discriminated against for reporting mine safety violations. In response, the Secretary filed a second Section 105(c) discrimination complaint against Highland. Section 105(c)(2) of the Mine Act provides that a miner may be temporarily reinstated during the pendency of a Mine Act suit. 30 U.S.C. § 815(c)(2). Petitioner was reinstated under this section and returned to the No. 9 mine in June 2007.

After Petitioner returned to Highland, he claims to have been subjected to further discrimination in the form of changed job duties, excessive supervision, and the posting of his job duties on a company bulletin board. These post-reinstatement accusations form the basis for Petitioner's third Section 105(c) discrimination claim.

b. Procedural Background

1. The Adjudicatory Process Under the Mine Act

Section 105(c) of the Mine Act "protects both miners and their representatives from discharge or any other form of interference or discrimination because of the exercise of a statutory right afforded by the [Mine] Act, including rights related to safety . . . ." Council of So. Mountains, Inc. v. Fed. Mine Safety & ...

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