.
KENNECOTT UTAH COPPER CORP.
June 28, 2001
WEST 2000-625-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 28, 2001
GREG POLLOCK, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 2000-625-DM
v. :
: Bingham Canyon Mine
KENNECOTT UTAH COPPER CORP., :
Respondent : Mine I.D. 42-00149
DECISION
Appearances: Harry Tuggle, United Steelworkers of America,
Pittsburgh, Pennsylvania, for Complainant;
James M. Elegante, Esq., Kennecott Utah Copper
Corp., Magna, Utah, for Respondent.
Before: Judge Manning
This case is before me on a complaint of discrimination
brought by Greg Pollock against Kennecott Utah Copper
Corporation ("Kennecott") under section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �815(c)(3)
(the "Mine Act"). The complaint alleges that Kennecott issued
a written warning to Mr. Pollock in January 2000 after he
called the Department of Labor's Mine Safety and Health
Administration ("MSHA") about an accident that occurred at the
mine. Mr. Pollock contends that the written warning was issued
in violation of section 105(c) of the Mine Act. Harry Tuggle,
Mine Safety and Health Specialist with the United Steelworkers
of America ("USWA"), entered an appearance on behalf of Mr.
Pollock after the complaint was filed. An evidentiary hearing
was held in Salt Lake City, Utah. For the reasons set forth
below, I find that Mr. Pollock did not establish that he was
discriminated against and I dismiss his complaint of
discrimination.
I. FINDINGS OF FACT
Kennecott is the operator of the Bingham Canyon Mine, a
large open pit copper mine in Salt Lake County, Utah. Mr.
Pollock has worked at the mine in various positions for about
24 years. Mr. Pollock has been president of the USWA local at
the mine for about eight years. The case arose as a result of
events that occurred in late December 1999 and January 2000,
as described below.
On December 30, 1999, Thomas R. Lohrenz, a senior employee
relations representative with Kennecott, called a meeting of
local union presidents to present and discuss the company's
incentive program for the year 2000. Kennecott started an
incentive program in 1999 that was designed to pass on certain
cost savings to employees. Mr. Lohrenz called the meeting to
inform the local union leaders of the changes the company
proposed for the year 2000. He used a projector and slides to
present the information.
When the meeting began at 7:30 a.m., representatives were
present from the clerical union, the electrical workers union,
the transportation workers union, the machinists' union, and the
operating engineers' union. Mr. Pollock was not present. When
Lohrenz asked those present whether he should go ahead and start
the meeting, the consensus was that he should wait a few minutes.
After waiting a few more minutes, Lohrenz announced that he was
going to start in order to avoid delaying everyone. Lohrenz
began by introducing the topic and asking that they hold their
questions to the end because the slide presentation may answer
many of the questions.
At about 7:40 a.m., Mr. Pollock entered the meeting.
Lohrenz again asked everyone to hold their questions until the
end. Pollock immediately asked Lohrenz questions about the
incentive program and about other employee relations issues.
Again, Lohrenz asked that Pollock hold his questions until the
end. At that point, Dale Evans, chairman of the local
electrical workers union (IBEW), through either a hand signal
or through spoken words asked Mr. Pollock to be quiet. In
response, Mr. Pollock blew up and became very abusive towards
Mr. Evans. Using profanity, Pollock said that nobody could
tell him to shut up and that he could ask any questions he
wanted. Lohrenz remembers Pollock verbally attacking Mr. Evans
and insulting the IBEW. Evans testified that he did not take
any of Pollock's remarks personally.
During this altercation, Lohrenz asked Pollock to sit down
and be quiet. Pollock refused to do so. Lohrenz walked over to
where Pollock was standing and told him to leave the meeting.
Lohrenz testified that he was angry at Pollock and that he
believed that Pollock's outburst at the meeting was totally
uncalled for. Lohrenz followed Pollock out of the meeting and
told Pollock that he was out of line. Lohrenz advised Pollock
that he would not allow him back in the meeting but that he
would give Pollock his own separate briefing at a later time.
Lohrenz returned to the meeting which lasted about one hour
with questions and answers.
Lohrenz was very angry with Pollock in part because this
was not the first time that he had to talk to Pollock about his
personal behavior at the mine. Lohrenz was particularly
concerned because he felt that Pollock's attacks were personal
and very disruptive. He believed that some type of disciplinary
action should be brought against Mr. Pollock for his behavior.
Later that afternoon, Lohrenz began drafting a proposed letter
of discipline to be issued to Mr. Pollock. (Tr. 210; Ex. R-10).
This letter would constitute a written warning under the mine's
labor agreement. He discussed the events and his proposed
discipline with Nancy Arritt, the director of employee relations
for Kennecott, who was Lohrenz's supervisor . (Tr. 243-44).
On the morning of December 31, 1999, Mr. Lohrenz sent an
e-mail to Ms. Arritt. (Tr.210; Ex. R-12). He attached his draft
disciplinary letter and asked for her advice. Later that day,
Lohrenz discussed this matter with her. They discussed how
Pollock should be disciplined, when the USWA's Utah staff
representative should be notified, and who should issue the
discipline. (Tr. 211, 243-47). It is Mr. Lohrenz's
understanding that, as of December 31, a decision had been
made to discipline Mr. Pollock for his disruptive and abusive
behavior at the incentive plan meeting, but that all the
details had not been worked out. (Tr. 211-13).
On January 1, 2000, there was an accident at the mine.
Jerry Martinez was operating a large truck when he drove over
a smaller truck. The operator of the smaller vehicle was able
to escape his vehicle before it was run over. Consequently, no
miners were injured. After conducting an investigation,
Kennecott determined that Mr. Martinez was at fault and issued
a notice of investigation and hearing against him with the
intent to terminate him from employment.
On January 5, 2000, Kennecott managers held a meeting to
discuss the proposed discipline against Mr. Pollock. The
meeting was attended by Ms. Arritt, Mr. Lohrenz, and Ed
Morrison, counsel in the labor relations department.
(Tr. 248- ). On January 11, Ms. Arritt drafted a disciplinary
letter to be issued to Mr. Pollock. It was similar to the one
that Lohrenz had drafted but, because Ms. Arritt decided that
she should issue the letter rather than Lohrenz, she reworked
it using her own language. (Tr. 254).
A meeting was held on Kennecott's proposed termination of
Martinez on January 12, 2000, at about 8 a.m. Lohrenz, Pollock,
and Martinez were present. (Tr. 216-17). John Kinneberg,
Kennecott's operations superintendent was also present. As the
local president, Pollock argued that the company's proposed
termination was not fair because the miner in the smaller
vehicle was not being disciplined. (Tr. 72). It was Pollock's
position that the other driver was as much at fault as Martinez.
Near the end of the meeting, Pollock said that if Martinez is
fired, "then I've got no recourse but to go to MSHA because
you're not taking care of the problem, you're trying to sweep
it under the rug. . . ." Id. Martinez was terminated by
Kennecott. Pollock called MSHA at the end of this meeting.
Lohrenz told Arritt that Martinez had been terminated.
On January 12, 2000, at about 11:30 a.m., Ms. Arritt sent
an e-mail, with her proposed disciplinary letter attached, to
a number of Kennecott managers to get their comments. (Ex.
R-13). The distribution list included Chris Robison, the mine
manager, and Ed Morrison. Arritt proposed that the letter be
sent to Pollock via an overnight delivery service. Morrison
thought that it should be delivered in person. Arritt agreed
with his recommendation and did not send out the letter.
At about 1 p.m., on January 12, MSHA Inspector Terry Powers
arrived at the mine. A Kennecott safety representative called
Lohrenz to ask him to sit in on the meeting with MSHA because
there were no operations people available at that time. (Tr.
221). It was quite unusual for someone from employee relations
to be involved in MSHA matters. (Tr. 314). The meeting with
Inspector Powers lasted several hours and was attended by a
company safety representative, Kinneberg, Lohrenz, Pollock, and
others. Pollock told the inspector that "the company was trying
to lay this whole thing off on one person and that [the union
had] some problems with it." (Tr. 73). Pollock testified that
Kinneberg became very upset that he had called MSHA. He
testified that Kinneberg became quite angry at this meeting,
especially after he was advised by the inspector that citations
would be issued. (Tr. 73-74). Lohrenz testified that
"Kinneberg's deportment was nothing but professional" and that
he did appear to be angry. (Tr. 222-23).
On January 13, Inspector Powers issued three significant
and substantial ("S&S") citations. Each citation was issued
for the conduct of Mr. Martinez. (Ex. C-7). No citations
were issued for the conduct of the driver of the smaller truck.
One citation was issued because Martinez failed to sound a
warning before moving his haul truck. Another was issued
because Martinez moved the haul truck without a signal from
the spotter to do so. The third citation was issued because
Martinez failed to maintain control of his haul truck.
On January 17, 2000, Ms. Arritt talked with Carl Collins,
Pollock's immediate supervisor, to schedule a meeting with
Pollock to deliver the disciplinary letter. A meeting was
scheduled for January 18. The meeting had to be postponed
because Pollock had a conflict on that day. Unknown to Ms.
Arritt, Pollock was at an MSHA close-out conference on that
date with respect to an unrelated MSHA inspection. (Tr.
260-61). On January 20, Arritt attempted to reschedule the
meeting. The meeting was held on January 21, 2000, in Ms.
Arritt's office at Arbor Park in Magna, Utah. Arritt,
Collins, and Pollock were in attendance. Arritt handed
Pollock the letter at this meeting. (Exs. C-3, R-19). She
also explained why the letter was being issued. (Tr. 267).
The letter is dated January 18 because that was the date
that the meeting was originally scheduled.
The letter states that Mr. Pollock was being disciplined
because of his disruptive behavior at the December 30 meeting.
(Exs. C-3, R-19). The letter recounts the events at the
meeting. It states that Pollock had been counseled in the past
for similar behavior. It states that "you have left us with
no choice but to issue this letter as a warning to you that
further obstructive and harassing behavior such as you
exhibited on the morning of December 30th when you disrupted
a meeting on company business will not be tolerated." Id.
The letter further states that Pollock remains free to conduct
union business, but that he does not have the "the freedom to
disrupt or take over or otherwise make it impossible to
continue meetings such as Tom Lohrenz was conducting for the
company. . . ." Finally, the letter states that if another
similar incident should occur "a hearing will be held to
determine the level of disciplinary action to be taken, up to
and including termination of your employment." Id. The
letter is quite similar to the one drafted by Mr. Lohrenz on
December 31, 1999. (Ex. R-10).
In response, Pollock stated that the letter violated the
labor agreement. (Tr. 267-68; Ex. R-21). He also stated that
Lohrenz started the incident and that he was acting in his
capacity as a union officer at the meeting and could behave
however he wanted. Pollock told Arritt that he would be filing
charges with the National Labor Relations Board.
Pollock filed a complaint of discrimination with MSHA
under the Mine Act on January 30, 2000. Pollock alleged that
the disciplinary letter was issued by Kennecott because he
called MSHA to the mine to investigate the Martinez accident.
On August 16, 2000, MSHA "determined that the facts disclosed
during [its] investigation do not constitute a violation of
section 105(c)." Mr. Pollock filed this case under section
105(c)(3) on September 18, 2000.
II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS
Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the
Mine Act. The purpose of the protection is to encourage miners
"to play an active part in the enforcement of the [Mine] Act"
recognizing that, "if miners are to be encouraged to be active
in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result
of their participation." S. Rep. No. 181, 95th Cong., 1st Sess.
35 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Mine 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. Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980),
rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary
of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The mine 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 the protected activity. Pasula, 2 FMSHRC at
2799-800. If the mine operator cannot rebut the prima facie
case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected
activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987).
A. Did Greg Pollock engage in protected activity?
Mr. Pollock engaged in protected activity when he called
MSHA on January 12, 2000, to complain about the truck accident
that occurred on January 1. He called MSHA because he believed
that the company was trying to sweep the causes of the accident
under the rug by blaming only Martinez for the accident. He
apparently believes that Kennecott should change its procedures
to prevent such accidents. Instead of placing total
responsibility on the operators of large haul trucks, he
apparently believes that the operators of smaller vehicles
should be required to take steps to notify the haul truck
operators of their presence. Although MSHA apparently did
not agree with Pollock's position as evidenced by the
citations that were issued, his actions in calling MSHA are
protected.
B. Was Kennecott's written warning to Greg Pollock
motivated in any part by his protected activity?
In determining whether a mine operator's adverse action
was motivated by the miner's protected activity, the judge must
bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is
indirect." Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is
subjective and in many cases the discrimination can be proven
only by the use of circumstantial evidence." Id. (citation
omitted).
Mr. Pollock relies on a number of facts and arguments in
support of his case. First, he argues that letter was in
violation of the labor agreement and past practices at the
mine. He states that the fact that Kennecott failed to follow
customary practices indicates that there were other reasons
for his discipline. First, Pollock contends that Kennecott
was required to hold a hearing before he was disciplined. The
labor agreement, however, provides that a hearing is required
only when Kennecott is proposing that the employee be
suspended or discharged. If an employee is not being
discharged or suspended, the employee is only required to be
notified of the discipline. In this case, Kennecott determined
that Pollock should be issued a written warning for his conduct
at the December 30 meeting.
START (CHECK � )
In addition, Pollock argues that the fact that the written
warning was issued in the form of a letter on 8-1/2 by 11 paper
shows disparate treatment. Kennecott has pre-printed forms that
it generally uses for discipline under the labor agreement. One
is entitled "Notice of Investigation and Hearing." It is used
when suspension or discharge is contemplated by Kennecott. The
other form is entitled "Notice of Disciplinary Action." The
supervisor who fills it out must check one of two boxes labeled
"written" or "verbal" warning. This form measures about 5-1/2
by 4-1/2 inches and contains a small area to write the reasons
for the discipline. I find that Pollock has not established
that he was treated differently. Other employees have been
issued written warning letters. (Tr. 284-85). It would have
been impossible for Ms. Arritt to set forth the reasons for
Mr. Pollock's written warning on the space provided on the
pre-printed form.
Mr. Pollock testified that when Mr. Lohrenz escorted him
out of the December 30 meeting, he said "I'm warning you."
Pollock contends that Kennecott cannot issue both a verbal and
written warning for the same incident. I reject this argument.
There is no evidence that Lohrenz intended that statement, if
made, to constitute a verbal warning under the labor agreement.
It is the general practice to write up a verbal warning to
memorialize it for future reference. Mr. Lohrenz did not write
up such a verbal warning in this case.
Mr. Pollock's most convincing argument concerns the timing
of the written warning. The letter was issued to Mr. Pollock
seven days after MSHA Inspector Powers issued three S&S
citations against the company following Mr. Pollock's complaint.
In analyzing whether Kennecott was motivated in any part by
Mr. Pollock's protected activity, I must look for any
circumstantial evidence of discriminatory intent. Commission
judges typically consider management's knowledge of the
protected activity, management's hostility or animus towards
the protected activity, the coincidence in time between the
protected activity and the adverse action, and any disparate
treatment of the complainant. See Hicks v. Cobra Mining, Inc.,
13 FMSHRC 523, 530 (April 1991). I analyze these factors below.
I find that Kennecott management had knowledge of Mr.
Pollock's protected activity on January 21, 2000, the date the
warning letter was issued. Mr. Lohrenz was at the meeting with
MSHA on January 12. Nevertheless, I credit the testimony of
Lohrenz and Arritt that the decision to issue the warning letter
was made prior to that date. Ms. Arritt made the final decision
to issue the warning letter prior to January 11. (Tr. 281-82).
Ms. Arritt wanted to send the warning letter to Mr. Pollock on
January 12 after she received final clearance from the mine
manager. She agreed to hand deliver the letter on advice of
counsel. Pollock did not raise any MSHA issues concerning the
January 1 accident until the disciplinary meeting with Martinez
and Lohrenz on the morning of January 12. Arritt made the final
decision to issue the warning letter before she learned that
Pollock had called MSHA following the Martinez meeting. She did
not know that Pollock called MSHA in January 2000 until February
of that year. (Tr. 274).
Pollock contends that Kinneberg's demeanor at the MSHA
meeting on January 12 illustrates management's hostility towards
his protected activity. He testified that Kinneberg was visibly
upset during the meeting with MSHA Inspector Powers. (Tr. 72-
74). Mr. Lohrenz, who also attended this meeting, testified that
Kinneberg behaved in a professional manner and did not appear to
be angry. (Tr. 222-23). I credit the testimony of Lohrenz over
that of Pollock. At the hearing, Mr. Pollock made statements on
a number of occasions that, upon further examination, were shown
to have little basis in fact or were greatly exaggerated. For
example, Pollock testified that by the time he got back from the
meeting in Arbor Park "everyone at the plants knew that I'd been
given the written warning, because the company made such a
spectacle of it, in my words, by taking me to Arbor Park and
giving me this discipline." (Tr. 88). He further testified the
company "paraded me in front of everyone up in Arbor Park." (Tr.
94). Upon further examination, it is clear that the company
neither "paraded" him in front of others nor made a "spectacle"
of his discipline. The meeting was around lunch time and it is
not clear that anyone saw him go to the Arbor Park office complex
or walk to Ms. Arritt's office once he was there except for the
receptionist. (Tr. 94-95, 269-70). Indeed, Mr. Evans did not
know that Pollock had been disciplined until the day before the
hearing. (Tr. 130). It is highly likely that many people at the
mine quickly learned that Pollock had been issued the warning
letter, but it is clear that there was no parade or spectacle. I
have given greater weight to the testimony of Lohrenz and Arritt
than the testimony of Pollock in this proceeding when there was a
direct conflict.
Pollock maintains that Kennecott's hostility towards his
MSHA activity is also evidenced by a notice that was posted on
the bulletin board at the mine. (Ex. C-6). The bulletin,
entitled "Significant Safety Incident" is dated January 25,
2000, and signed by Mr. Robison. It describes the Martinez
accident and includes the following paragraph:
MSHA was called and investigated the
incident. They found the employee had
violated three procedures, failure to honk
when about to move, failure to follow
directions from the spotter, and failure to
keep his truck under control. All three
citations are classified as S&S, and are
posted for you to read. The mine will also
be required to pay fines on these citations
directly impacting our costs.
Id. Although I can appreciate Mr. Pollock's concern, I agree
with the company that this bulletin was designed to promote
safety by cautioning employees to follow the mine's operating
procedures to avoid serious accidents. This bulletin does not
indicate that Kennecott was hostile to Pollock's safety
activities.
Mr. Pollock also argues that the extraordinarily long
delay between the December 30 meeting and the January 21
written warning raises a strong inference that the letter was
issued, at least in part, as a result of the events of January
12 and 13 when Pollock called MSHA. The letter was issued only
a few days after Inspector Powers issued the citations.
Pollock testified that disciplinary warnings are usually given
immediately or within a few days after the disputed conduct.
Lohrenz and Arritt gave a detailed chronology of the events
between December 30 and January 21. I credit their testimony
in this regard. Arritt made the decision to issue the written
warning by January 11. Because Pollock was a local union
president and the circumstances of his discipline were unusual,
the company researched the labor relations issues before the
letter was issued. (Tr. 254-55). Lohrenz and Arritt testified
that the decision to issue the warning letter was not influenced
by Pollock's MSHA activities. (Tr. 214-15, 274, 278-79). Arritt
is no longer employed by Kennecott. I find that Kennecott's
delay in issuing the warning letter was not the result of any
discriminatory motive prohibited by the Mine Act. The
coincidence in time between the MSHA inspection and the warning
letter was just a coincidence.
Pollock is also claiming disparate treatment. Many of
these arguments center around the unique nature of the events
such as the fact that he was issued a letter rather than a
pre-printed warning slip. I have already disposed of most of
these issues. He also argues that other union officials have
disrupted meetings without receiving any discipline. At a
meeting that was attended by various union officials in
September 2000, the head of the mechanists' union made
derogatory and vulgar remarks to Pollock as everyone was
assembling. (Tr.85-87). Pollock testified that Lohrenz simply
held his head down and Kinneberg started laughing at the
remarks. While these events are unfortunate, the conduct
of the head of the mechanists' union is quite different than
Mr. Pollock's conduct at the December meeting. The September
2000 meeting was not disrupted. The offending individual did
not interrupt or interfere with the conduct of the meeting.
I find that Mr. Pollock was disciplined solely because of
his "obstructive and harassing behavior" at the December 30
meeting, as set forth in the written warning. (Ex. R-19). It
appears that Mr. Pollock has a quick temper which he has
difficulty controlling. Mr. Pollock believes that his warning
letter was unfair, given the normal give and take involved in
labor relations at this mine. I do not have the authority to
determine whether this discipline was fair or reasonable. The
"Commission does not sit as a super grievance board to judge
the industrial merits, fairness, reasonableness, or wisdom of
an operator's employment policies except insofar as those
policies may conflict with rights granted under section 105(c)
of the Mine Act." Delisio v. Mathies Coal Co., 12 FMSHRC 2535,
2544 (December 1990) (citations omitted). I find that
Kennecott's written warning was not motivated in any part by
Pollock's protected activities.
III. ORDER
For the reasons set forth above, the complaint filed by
Greg Pollock against Kennecott Utah Copper Corporation under
section 105(c) of the Mine Act is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Harry Tuggle, Mine Safety & Health Specialist, United
Steelworkers of America, Five Gateway Center, Pittsburgh,
PA 15222-1261 (Certified Mail)
James Elegante, Esq., Kennecott Utah Copper Corp, P.O. Box
6001, Magna, UT 84044-6001 (Certified Mail)
RWM