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Worker Ordered Reinstated After Making Complaint, Dismissal

By Ellen Smith

A miner was granted temporary reinstatement, even though the company claims it does not have any work for him. Review Commission Judge William Steele noted the miner, Dustin Rodriguez, was fired within 24 hours of bringing up safety concerns with his supervisors.

Rodriguez was working for C.R. Meyer and Sons Co., a contractor for Molycorp’s Mountain Pass Mine & Mill as a pipefitter foreman. He made two complaints before being terminated.

The first case was on Jan. 24 when Rodriguez asking to see a Material Data Safety Sheet to determine if any personal protective equipment should be worn for a job of unclogging a pipe with soda ash. When he got to the work area, the tank had a placard with a “2" in blue meaning there was a health hazard. He claimed that when he asked for an MSDS his supervisor responded, “Are you serious?” He was not given the information at that time, and instructed a crew member not to do any work until an MSDS was obtained.

His second complaint was regarding a scaffold that they had to use to access the tank. The scaffold had a yellow tag on it, which meant there had to be a 100 percent tie off, but there was no appropriate tie off on the scaffold itself. Rodriguez told the company that they needed the scaffold builders to come out and correct the scaffolding by adding an overhead tie-off point, or making it safe to work without a tie-off.

He and another worker were told to tie-off on the scaffold poles, but Rodriguez refused, saying that as a crew supervisor, he would get in trouble if MSHA showed up, and it was against everything they had been taught in training. The next day, Rodriguez was told that he was being laid off, in part because he had been “caught standing around on two projects,” and that Molycorp had complained about his performance on a job a week before.

The ALJ noted that the entire time Rodriguez worked for the contractor, C.R. Meyer, he had not received any verbal or written warnings or disciplinary actions. In addition, no one from his union ever said his work was deficient. He did not receive a written termination slip, but there was a box marked on his last paycheck that said “unacceptable work habit or work ethic.”

The contractor argued that Rodriguez, “found ways of not completing his work rather than finding ways to complete it and that he never turned in paperwork.”

While his supervisor did not witness problems, the supervisor claimed that four others working with Rodriguez said he was not doing his work, and that the decision to terminate him was made before he asked for the MSDS sheet or complained about the scaffolding.

It was uncontested that Rodriguez requested an MSDS because of safety concerns, and “requesting safety material concerning a chemical exposure falls squarely within the protection of §105(c)(l).... Rodriquez’s claim that he was engaged in protected activity with respect to the soda ash project is not frivolous,” Judge Steele said. In addition, it was clear that the agent for the contractor left and never obtained an MSDS for Rodriguez.

The company also conceded that Rodriguez did raise safety concerns about the scaffold, but they argued that the safety issue wasn’t raised until he was on the scaffold. In addition, the company said that all of the miners were laid off by Jan. 25, and they had no job for Rodriguez at this point.

But ALJ Steele said it did not matter whether Rodriguez was fired for being a loafer or laid off because there was no work. “I have determined that there is a non-frivolous issue as to the discriminatory intent of the discharge that day,” and it was appropriate for Rodriguez to be reinstated. E

MSHA o/b/o Dustin Rodriguez v. C.R. MEYER AND SONS CO., 4/17/2013, Docket No. WEST 2013-618-DM; 20 MSHN D-1463