Rock Products

NOV 2012

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Miner Wins Discrimination Case After ALJ Finds Inconsistent Statements, Policy By Ellen Smith Inconsistent management witness statements about the work behavior of a fired miner, combined with a lack of evidence that other miners had not been fired for similar offenses, was enough for a miner to get his job back at Newmont Mining Co.'s Leeville Mine in a ruling by Federal Mine Safety and Health Review Commission Judge David Barbour. The miner, Todd Descutner, was allegedly fired under New‐ mont's progressive disciplinary policy for damaging New‐ mont's property and for insubordination. However, Descutner presented evidence that he had made two "open ground" safety hazard complaints before he was disciplined. Open ground are areas where there are falling rocks and it is not safe to work. With regard to one of the complaints, a loader operator told Descutner the area was safe, but Descutner avoided the open, unsafe ground by going on a different route, which lowered his production numbers. In another complaint, the supervisor said during a meeting that some drivers were not making enough loads during a shift, and that some drivers were later than others when getting the first load. After the meeting, De‐ scutner told his supervisor that some drivers were arriving earlier to get loads, because they were not following proper pre‐shift inspection procedures, to which his supervisor al‐ legedly responded by telling him to mind his own business. It was shortly after this meeting that Descutner, while oper‐ ating his haul truck, backed over some roof bolts that were in a staging area. Descutner said he did not realize he had backed over the supplies, and his supervisor approached the truck, ordered him out of the truck, and to report for a drug and alcohol test and to fill out a statement. The supervisor said that at this point Descutner cursed at him, and "said that I was f***** up." Descutner claimed he said the "situa‐ tion was f***** up." Decutner passed the drug and alcohol test, but was fired for cursing at the supervisor, based on the company's progres‐ sive discipline, and the company claiming that Descutner had been in previous accidents that caused prop‐ erty damage. ALJ Barbour noted that while the company's official policy prohibited profanity, general profanity was implicitly tolerated, although profanity towards a supervisor was not. Descutner admitted that he cursed, but the ALJ said it was un‐ likely that Descutner would have cursed directly at a supervi‐ sor, knowing he would be fired. There was also no evidence presented that other employees had been fired for cursing, or that other employees had been fired for committing three "of‐ fenses" in one year, as Descutner had been charged with. It was the situation involving the roof bolts and cursing where Barbour found that an email statement of the super‐ visor differed than the testimony. The supervisor said he approached Descutner after he saw that Descutner had backed over the roof bolts. However, the supervisor's email on the situation stated that he noticed the trucked was parked in the staging area, and approached the door to ask why he was parked, and then notice that the truck was parked over roof bolts. "When two statements are given by a witness on a material issue are inconsistent, the witness is impeached and his credibility damaged," Barbour said in supporting Descut‐ ner's testimony over the supervisor's testimony. The com‐ pany was also unable to prove that the miner had an unsatisfactory work record, or that parking in the area where the roof bolts were on the ground would be a reason to terminate the miner. Barbour noted previous case law ruling stating "when the reasons proffered by the operator are cumulative, and the judge disbelieves one of the reasons, the judge cannot hold that the other reasons are sufficient by themselves to sup‐ port the adverse action." (Lawrence Pendley v. Highland Min- ing Co., 19 MSHN 523). TODD DESCUTNER v. NEWMONT USA., Oct. 31, 2012, Docket No. WEST 2011-523-DM. The ALJ said that Descutner was entitled to reinstatement at his former position as a haul truck driver, and noted that after he had been terminated by Newmont, he found a job as a car salesman. Under the law, the company must pay back pay and wages, although the company is entitled to deduct the interim net wages that Descutner received from his other job. His record must be expunged of any references to his termination, and the com‐ pany was also ordered to post a notice at its mine that it will not violate the discrimination provisions of the Mine Act. Descutner is also entitled to attorney fees since MSHA did not accept his case. E ROCKproducts • NOVEMBER 2012 41

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