Rock Products

JUL 2015

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Page 48 of 55 ROCK products • July 2015 • 47 Written Rule Even if there was a written rule for requiring miners to "fol- low 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 com- pany 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 Ar- nold'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 situ- ated" 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 evalua- tion. The timing and nature of the punishments in this mat- ter confirm the pretextual nature of the justification." In assessing a $20,000 penalty, Judge Lewis said the compa- ny's arguments and justifications were "weak and implausi- ble" and "merely a pretext to excuse unlawful discrimination." Sec. of Labor o/b/o Dona Arnold v. BHP Navajo Co. and its Suc- cessors; 4/24/2015, Docket No. CENT 2013-541-D; 22 MSHN D-50.

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