Rock Products

JAN 2018

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Page 54 of 73 ROCK products • January 2018 • 51 3 Days | Live Demonstrations | 500 Exhibitors | Free Entry 26 – 28 June | Hillhead Quarry | Buxton | Derbyshire | UK Register free today at #Hillhead18 LAW that no protected activity occurred or (2) that the adverse action was in no part motivated by the protected activity. The challenge operators face here is that "direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect." Sec'y of Labor OBO Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Rev. Comm'n. Nov. 1981). These are not the only options. Operators can also make an affirmative defense and prove they were motivated solely by the miner's unprotected activity. Bane v. Denison Mines (USA) Corp., 39 FMSHRC 897, 907 (ALJ Apr. 2017). Keep in mind that affirmative defenses shift the burden of persuading the ALJ from the miners to the operators. It is not enough for the operators to show that the miners deserved to be fired for their unprotected activity. The operators must prove that the justifications were plausible, and that the oper- ators considered the miners deserving of discipline solely for the infraction and that they would have disciplined the miners regardless of any previous protected activities. To persuade the ALJ, operators must show that the justifications were not just a pretext to mask the protected activity. Id. Factors to Consider When Rebutting Allegations or Proving the Affirmative Defense The Commission recognizes that pretext can exist when the justifications are weak, implausible or at odds with the oper- ators' normal business practices. Sec'y of Labor OBO Price v. Jim Walter Res., Inc., 12 FMSHRC 1521 (Rev. Comm'n. Aug. 1990). The miners can challenge the justifications by show- ing they have no basis in fact, did not actually motivate the discipline or were insufficient to support the level of disci- pline. Bane, 39 FMSHRC at 908. Indirect, circumstantial evidence of the operators motivation include: (1) proximity in time between the protected activity and the adverse action; (2) operators' knowledge of the pro- tected activity; (3) hostility or animus toward the protected activity; and, (4) operators' disparate treatment of similar infractions. Chacon, 3 FMSHRC at 2510. Addressing these factors is extremely fact-specific and will vary with each case. By way of example, in Sec'y of Labor OBO Hamilton v. Amer- ican Mining & Tunneling 38 FMSHRC 2319 (ALJ Aug. 2016) and Kreimier v. Coeur Alaska, Inc., 39 FMSHRC ----, WEST 2017-80-DM (ALJ Nov. 2017) the operators persuaded the ALJ that the Chacon factors were in favor of the operators. In those cases, the operators rebutted any "proximity in time" links and any allegations of hostility towards the protected activities. Perhaps most important, the operators showed there was no disparate treatment of the complainants as compared to previous disciplinary events. Bottom line: There are virtually no "black and white" situa- tions, but operators who consistently enforce their policies and document those actions, are in the best position to defend themselves from discrimination complaints.

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