ROCKWELL MINING LLC

National Labor Relations Board - Board Decisions

Nov 29, 2018

367 NLRB No. 39 (N.L.R.B. 2018)

367 NLRB No. 39
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rockwell Mining LLC and United Mine Workers of
America, International Union, AFL-CIO. Case
09–CA–206434
November 29, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 4, 2018, Administrative Law Judge Paul Bogas
issued the attached decision. The General Counsel and
Charging Party filed exceptions and supporting briefs.
The Respondent filed an answering brief to the General
Counsel and Charging Party’s exceptions and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions1 and to
adopt the recommended Order.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. November 29, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-206434 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor

1 Contrary to the General Counsel’s and Charging Party’s arguments
on exceptions, the judge’s analysis under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
(1982), clearly pertains to both the 8(a)(3) and 8(a)(4) allegations.
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Daniel A. Goode, Esq., for the General Counsel.
Anna M. Dailey, Esq. (Dinsmore & Shohl, LLP), of Charleston,
West Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Charleston, West Virginia, on April 3 and 4, 2018. The United
Mine Workers of America, International Union, AFL–CIO (Un-
ion or UMWA or charging party) filed the charge on September
18, 2017, and amended the charge on November 29, 2017. The
Regional Director for Region 9 of the National Labor Relations
Board (the Board) issued the Complaint on December 20, 2017.
The Complaint alleges that when Rockwell Mining LLC (the Re-
spondent or Rockwell) suspended employee Jerry Hager (Hager)
on September 18, 2017, and discharged him on September 21,
2017, it violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act) because it was discriminating based on
Hager’s union and protected concerted activities, and violated
Section 8(a)(4) and (1) because it was discriminating based on
Hager testifying at a Board representation hearing. The Re-
spondent filed a timely Answer in which it denied committing
any of the violations alleged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, mines coal in
Wharton, West Virginia, where it annually sells and ships goods
valued in excess of $50,000 directly to points outside the State
of West Virginia. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
We agree that the Respondent established that it would have dis-
charged employee Jerry Hager even in the absence of his union activity.
In these circumstances, we need not pass on the judge’s finding––to
which no party excepts––that antiunion animus was a motivating factor
in Hager’s discharge.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent mines coal at multiple locations. The allega-
tions in this case concern the Respondent’s Glancy mine – a sur-
face mine that the Respondent started in 2016 in Wharton, West
Virginia. The Respondent has approximately 500 employees of
whom 70 to 80 work at the Glancy mine. The Respondent is one
of a number of subsidiaries of Blackhawk Mining, LLC (Black-
hawk).
The Respondent hired Hager on April 25, 2017, to work as a
mobile equipment operator at the Glancy surface mine. At the
time the Respondent recruited Hager and offered him a position,
he was working on the night shift at another Blackhawk-owned
mining company. When Hager arrived for work at the Glancy
mine, the Respondent “task trained” him on the operation of bull-
dozers and excavators––the two types of equipment that he was
initially assigned to operate. Although Hager came to the Re-
spondent because he was told he could work on the day shift,
when he arrived at the Glancy mine the Respondent assigned him
to the night shift.
B. Union Campaign and Respondent’s Meetings
The employees at the Glancy mine were not union-repre-
sented during the period leading up to the events of this case.1
On July 7, the Respondent became aware that the UMWA had
begun soliciting employees at the Glancy mine to sign cards au-
thorizing the UMWA to represent them. The charging party in
this case, Hager, assisted in the union effort by, inter alia, dis-
tributing union authorization cards and asking employees to sign
them. On one occasion in early July, Hager solicited signatures
during an off-the-worksite meeting with a group of about 19 em-
ployees. A number of those employees were relatives of man-
agement officials. On July 6, Hager himself signed a union card.
Prounion activity was also engaged in by another employee,
James McDonald. Like Hager, McDonald collected union au-
thorization cards from coworkers. The Respondent became
aware of McDonald’s union support in July when the Union se-
lected him as its observer for purposes of the representation elec-
tion scheduled for August 3.
Within a week of when it discovered that the UMWA was
campaigning to represent employees at the Glancy mine, the Re-
spondent held four meetings at which it discussed the Union with
employees. On July 11, it held one meeting for day shift employ-
ees and one meeting for night shift employees. A large number
of management and supervisory officials were present, includ-
ing: Jeff Sands (Blackhawk’s senior vice president of opera-
tions), Samuel Maggard (Blackhawk’s vice president of surface
operations), Joe Evans (Respondent’s general manager), Colin

1 The Respondent has labor contracts with the UMWA covering em-
ployees at four of its other facilities.
2 On approximately August 20, 2017, the Respondent promoted Mil-
ler to superintendent of the Glancy mine.
3 The General Counsel points out that an outline that the Respondent
prepared for the meeting includes the following language: “Our custom-
ers want to know that we can insure them with a dependable and unin-
terrupted supply of coal, this is why many customers today often prefer
to buy their coal from union-free operations like ours.” Joint Exhibit
Milam (Respondent’s human resources manager), Wes Harvey
(Respondent’s superintendent for the Glancy mine), Charley
Meddings (Respondent’s surface foreman for the Glancy mine),
and James Miller (Respondent’s day shift foreman for the
Glancy mine).2 During the July 11 presentation, representatives
of management asked the employees to choose to remain union-
free and argued that union representation was not in employees’
interests.3 During a question and answer portion of the meeting,
Hager raised issues regarding employees’ working conditions.
He stated that due to the Respondent’s failure to provide replace-
ment wiper blades for mobile equipment, employees had been
complaining about difficulty seeing. He also complained about
the air conditioning in mobile equipment not functioning
properly. At the meeting Hager stated that he was raising com-
plaints that other employees shared but were too timid to express
to management.
On July 13, the Respondent conducted two more meetings––
one for day shift employees and one for night shift employees.
All of the managers who attended the July 11 meetings, with the
exception of Milam, also attended the July 13 meetings. A num-
ber of additional managers attended the July 13 meetings, most
notably John Mitch Potter––Blackhawk’s owner, president, and
chief executive officer. Other additional managers present in-
cluded Jesse Parish (Blackhawk’s chief financial officer), Shawn
Creech (Blackhawk’s maintenance manager), and Barry Sexton
(Respondent’s maintenance foreman for the Glancy mine). Pot-
ter spoke at the meeting, stating, inter alia, that he insisted upon
managers and employees behaving with respect. Potter gave
others a chance to speak, and a number of employee complaints
were discussed. Some of the problems that employees raised to
Potter were rectified that same day or soon thereafter.4 The rec-
ord does not show whether Hager asked any questions or made
any statements during the meeting that he attended on July 13.
A day later, on July 14, the UMWA filed a petition with the
Board seeking to represent the production and maintenance em-
ployees at the Glancy mine.
On July 17, while the Union campaign was ongoing, the Re-
spondent granted Hager the day shift schedule that he had been
seeking. On the day shift, Hager had a new supervisor––Miller,
the day shift foreman. Instead of having Hager operate bulldoz-
ers and excavators––the equipment that he had been operating
for the Respondent––Miller assigned Hager to operate a rock
truck. The rock truck is an over-sized dump truck with an oper-
ating weight of 550,000 pounds and which can carry loads of up
to 150 or 200 tons. It is over 36 feet long, 16 feet high, and nearly
22 feet wide. The truck has an enclosed cab with a seat for the
operator and one for a passenger. Hager had operated this type
of truck 3 or 4 years earlier while working for another employer,
but had not previously operated it for this employer or at the
Number (J Exh.) 2, Page 4. As the General Counsel notes, this statement
is not alleged to be a violation. Moreover, the record does not show that
this outline was distributed to employees or that all the language in the
outline was actually communicated during the meeting. In particular, the
testimony did not establish that the Respondent told employees that cus-
tomers preferred to buy from union-free suppliers.
4 There is no allegation in this case that the Respondent violated the
Act by soliciting employee grievances and promising to remedy them.
ROCKWELL MINING, LLC 3
Glancy mine. The Respondent did not task train Hager on the
rock truck, something that it appears it was required to do by
federal mine safety standards.5
The Respondent held another meeting with employees on July
20 or 21 to further discuss the union campaign. This meeting
took place at the Blackhawk offices near the Glancy mine and
Maggard and Evans were present for management. The manag-
ers played a video presentation for the employees and argued that
the UMWA was not a good fit for the Glancy mine. Hager was
the first employee to speak when the managers opened the floor
for questions. Hager referenced David Muenich, a Glancy em-
ployee who been involved in a fuel truck accident on July 19.
Hager asked why Muenich was not back at work. Evans re-
sponded that Muenich had been suspended. Hager stated that
Muenich had a number of family and personnel issues and that
if he lost his job it could be “the end of him.” Hager asked addi-
tional questions about Muenich, but the managers resisted dis-
cussing what they said was a “pending matter.” After the Re-
spondent declined to answer a number of his questions, Hager
stated: “I think that’s why we need a union, a third party, because
this right here. Because Dave[ Muenich] should be back to work
by now.” “We’re not a happy family,” Hager said.
The representation election was held on August 3, 2017.
There were 27 votes in favor of representation by the UMWA
and 25 against. The Respondent filed objections to the election
and on August 24 a hearing was held on those objections. One
of the Respondent’s objections specifically mentioned Hager’s
statements during a meeting at which he distributed union au-
thorization cards to employees. The UMWA called Hager and
Muenich as witnesses and both of them provided testimony sup-
portive of the UMWA’s position. On September 7, the Board
hearing officer issued a report recommending that the Respond-
ent’s objections be rejected. On September 21 (the same day as
Hager’s allegedly discriminatory discharge), the Respondent
filed objections to the hearing officer’s report. On October 20,
2017, the Regional Director remanded the matter and directed
the hearing officer to further consider some issues raised by the
objections. The hearing officer issued a supplemental report on
December 21, 2017. This time the Regional Director, on Febru-
ary 16, 2018, rejected the Respondent’s objections to the hearing
officer’s report and certified the UMWA as the representative of
production and maintenance employees at the Glancy mine. The
Respondent asked the Board to review the Regional Director’s
decision and at the time of the hearing before me, the matter was
still pending.
C. Hager’s July 24 Accident
The Glancy surface mine has multiple unpaved, non-public,
roads on which mobile equipment moves around the mine site.

5 The Respondent does not dispute that it was required to train Hager
on operation of the rock truck at the Glancy mine. See 30 CFR Section
48.27 (miners assigned to new work tasks as mobile equipment operators
must be trained before engaging in those tasks unless, during the preced-
ing 12 months, they have been trained and/or have demonstrated safe
operating procedures for such work). However, the parties dispute
whether the Respondent, in fact, provided that training.
6 In its brief, the General Counsel repeatedly suggests that Hager took
this action because he was afraid that the hard hat would interfere with
“Berms”––piles of rock and dirt––are placed along the edges of
the roads to help prevent operators from unintentionally driving
off the roads.
On July 24, Hager was operating a rock truck, something he
had been doing at the Glancy mine since about July 17. There
were no adverse weather or road conditions that day. Hager had
several loose personal items with him in the cab of the truck,
including a hard hat. Hager was not required to wear the hard
hat while inside the cab, and he had placed the hard hat on the
passenger seat next to him. The passenger seat had a storage
compartment beneath it which, if empty, would have had suffi-
cient space to accommodate the hard hat. While testifying,
Hager expressed certainty that he would not have been able to
secure the hard hat in that compartment because the space was
always cluttered with cleaning supplies and other items. He con-
ceded, however, that on the day of the accident he had not
checked to see if this was true. Hager was driving down an in-
cline on one of the mine site’s unpaved roads and his route re-
quired him to make a sharp right turn onto another mine road.
When he made the turn, the hard hat slid off the passenger seat
and onto the floor of the vehicle in the area between the passen-
ger seat and the foot pedals. The hard hat did not fall into an area
where it directly interfered with Hager’s access to the truck’s
foot pedals, but it was about a foot from that area. Without stop-
ping the truck, Hager bent down to retrieve the hard hat. Doing
this required him to lower his head below the dashboard of the
truck and briefly sacrifice his view of the road. Hager testified
that retrieving the hard hat in this manner was a “split second”
decision.6
When Hager raised his head back up to look ahead again, he
was heading through the berm on the right side of the road. By
Hager’s own account, he hit the berm almost head on, not in a
glancing manner. On the other side of the berm there was a slope
down to an area approximately 60 feet below. The truck contin-
ued through the berm, then rolled side over side down the slope
before coming to rest. According to Miller, Maggard, and Evans
the accident was catastrophic enough that they feared that Hager
had been fatally injured. An inspector from the Federal Mine
Safety and Health Administration (MSHA) concluded that the
accident was of a type that could reasonably be expected to result
in a permanently disabling injury. Respondent’s Exhibit Num-
ber (R. Exh.) 6, Page 21. Hager was alive, although with injuries
to his spine and head. Miller and others assisted Hager in getting
down from the truck. Emergency medical technicians arrived
and checked on Hager’s condition. Hager said he wanted a cig-
arette and, after some initial resistance, someone provided one to
him. Oxygen was administered to Hager and he was stabilized
using a “back board” and a neck brace.
Hager was subsequently taken to a hospital by ambulance.
his access to the pedals used to operate the truck. I note that while Hager
testified, the General Counsel does not point to any testimony in which
Hager claimed that he acted out of a fear that the presence of the hard hat
on the floor of the truck threatened his ability to use the pedals or other-
wise operate the truck. There is a statement in the MSHA inspector’s
notes that references such concerns, but that statement is hearsay and I
do not credit it.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While Hager was waiting for the ambulance to transport him to
the hospital, Miller told him “I need your task training papers for
the truck.” Hager told Miller, “I’ve never been task trained on
that truck here.” Miller returned 10 to 15 minutes later, bent
down to Hager, and said: “I filled them out. You’ll have to sign
them later.” Hager responded that he would not sign the docu-
ments.7
At the hospital, Hager underwent a number of tests, including
an MRI and a CAT scan. Hager testified that the tests showed
that he had fractured his spine. He was given pain medication
and discharged from the hospital the same day as the accident,
although his injuries prevented him from returning to work for a
period of about 2 months. Hager had been employed by the Re-
spondent for 90 days at the time of the accident.8
The Respondent completed a “preliminary incident investiga-
tion report,” R Exh. 4, which recounted in general terms what
had occurred and discussed Hager’s injuries. In the portion of
the report entitled “steps to prevent recurrence,” the Respondent
stated: “360 Degree awareness and attention to task at hand. In-
vestigations are still pending. Determination shall be made after
all information is gathered.” With Hager’s cooperation, Milam
examined the message history on Hager’s cell phone, which had
been left at the accident scene, to determine whether Hager had
been texting at the time of the accident. Milam concluded that
Hager had not been texting.
The damage to the truck resulting from the accident caused it
to be out-of-service for 1 month. The Respondent spent approx-
imately $61,000 on parts and its mechanics worked 200 hours to
make the necessary repairs to the truck. For a period of time, the
Glancy mine was forced to cease operations due to the accident.
D. Federal and State Investigations Regarding the Accident
The circumstances that led to the July 24 accident are not
meaningfully disputed here. Neither Hager, nor anyone else, has
suggested that the truck itself was unsound or malfunctioning in
any way or that weather or road conditions contributed to the
accident. Investigations regarding the accident were conducted
by both MSHA and the State of West Virginia Office of Miners’

7 Hager and Miller gave contradictory accounts of the July 24 conver-
sation regarding the task training form. I found Hager’s testimony more
credible on this subject and credit his version over Miller’s. Hager’s de-
meanor when testifying on this subject was clear, certain, and measured.
In addition, his account was plausible. MSHA requires task training and
also requires that the Respondent fill out the form regarding the task
training. Significant penalties are associated with a mining company’s
failure to provide required task training or to properly document it. It is
not surprising that Miller, knowing that Hager’s accident would be in-
vestigated by government authorities, would be concerned about causing
the Respondent to incur such penalties and would seek to have the task
training documentation in order.
I reject the contrary testimony of Miller, who stated that it was Hager
who, while waiting to be taken by ambulance to a hospital, expressed a
desire to sign the task training form. Miller claims he replied, “I [am] not
worried about that.” I did not find Miller a credible witness regarding
disputed matters based on his demeanor and testimony. He appeared
uncomfortable while testifying and his voice dropped and became more
timid while answering some of the questions about the task training is-
sue. Moreover, I find his account of the July 24 conversation implausible.
It is hard to believe that Hager––while waiting to be taken to the hospital
by ambulance after a traumatic accident in which he was seriously
Health, Safety and Training, as well as by the Respondent.
Aaron Cline, an MSHA inspector, began his investigation of
the accident on July 24. Cline interviewed Hager by phone on
the evening of July 24. He also inspected the accident scene and
interviewed multiple other individuals who witnessed the acci-
dent or the immediate aftermath of the accident. Based on the
investigation, MSHA issued the following written conclusions
regarding the causes of the accident:
DIRECT CAUSE: The rock truck travelled through the berm
causing the truck to roll over.
INDIRECT CAUSE: The truck driver lost control of the truck
while retrieving his hard hat from the floor.
INDIRECT CAUSE: The hard hat fell into the floor because it
was not secured.
ROOT CAUSE: Policies and procedures failed in assuring that
equipment operators have full control their equipment while in
operation.
ROOT CAUSE: Policies and procedures failed in assuring that
any material that is in the cab of mobile equipment is secured
while the equipment is in operation.9
R. Exh. 6, Page 32.
The MSHA inspector issued a safety violation based on Hager
losing control of the vehicle while attempting to retrieve his hard
hat. Id. at Page 21. The violation stated:
The operator of the [rock truck] failed to maintain control of
the truck while it was in motion. The operator attempted to
retrieve his hard hat that had fallen onto the floor while the
truck was in motion causing him to lose control and drive
through a berm on an elevated roadway.
The MSHA inspector characterized the incident as “significant
and substantial” and the level of negligence involved as “low.”
injured––would be worrying about the completion of training forms.
Those forms were Miller’s and the Respondent’s responsibility, not
Hager’s. Moreover, for reasons that are discussed elsewhere I find that
Miller’s testimony on related subjects––in particular on the question of
whether he actually did train Hager on operation of the rock truck––was
not truthful.
8 On the day Hager started work he signed a Blackhawk new hire ori-
entation form, and separately acknowledged a number of provisions set
forth in the form by placing his initials next to those provisions. One of
the provisions that Hager initialed stated: “Everyone is hired on a 90-day
trial basis. It gives you an opportunity to decide if we are an organization
you want to work for and gives us the opportunity to watch you and see
if you have the skills we require.” R. Exh. 20, Page 5, Paragraph 3.
9 Blackhawk, the Respondent’s, parent company, had a number of pol-
icies, the tenets of one of which include: “keep your workplace free of
hazardous clutter and always practice good housekeeping” and “always
face the direction of travel while operating machinery.” J Exh. 8, Page
13. It is not clear whether the Respondent ever pointed these provisions
out to employees, nor is it clear what, if any, consideration MSHA gave
to these provisions in reaching its conclusion about shortcomings in the
Respondent’s policies and procedures.
ROCKWELL MINING, LLC 5
The MSHA inspector also issued a safety violation based on the
presence of loose items in the cab. Id. at Page 28. This violation
also characterized the level of negligence as “low.” As a reme-
dial measure, MSHA required the Respondent to conduct a
safety training session with employees on July 31. The training
was conducted by Cline (the MSHA safety inspector) along with
Miller and Meddings. The focus of this training was to impress
upon employees the necessity of securing any loose items pre-
sent in mobile equipment while they were operating such equip-
ment.
The West Virginia Office of Miners’ Health, Safety and Train-
ing conducted an investigation and also found a violation by the
Respondent. The violation issued by the State agency was based
on its conclusion that the berm on the mine road where Hager
had his accident was not adequately constructed. General Coun-
sel Exhibit Number (GC Exh.) 19.10 It is not clear from the no-
tice of the violation whether it is meant to address only the con-
dition of the berm after it was compromised by the accident, or
whether it is meant to address the condition of the berm as it ex-
isted prior to the accident. Neither the notice of violation, nor
the record as a whole, suggest that a berm that complied with
State requirements should have kept the truck Hager was driving
from going off the road given that he hit the berm almost head
on. To the contrary, in the only testimony on the subject, Evans
stated that while a vehicle that strikes a berm in a glancing man-
ner could be pushed back towards the road, a vehicle that hits a
berm almost head on, as Hager’s truck had, would continue
through any berm that Evans had seen in his 37 years in the min-
ing industry. Tr. 127 and 196. No witness testified that a
properly constructed berm should have prevented Hager from
rolling the truck down the hill.
E. Hager Attempts to Return to Work, but is Suspended and
then Terminated
Hager’s injuries prevented him from returning to work for al-
most 2 months and during that period he received workers’ com-
pensation. While Hager was unable to work, the Respondent did
not take any disciplinary action against him based on the July 24
accident. On Friday, September 15, Hager obtained a medical
release and went to the Glancy mine and presented the release
paperwork to Milam. Evans was not available at that time, and
Milam told Hager to return to the facility the following Monday
for a “return to work” meeting during which they would discuss

10 See also R. Exh. 6, Page 10 (MSHA inspector modifies order re-
garding preservation of accident scene to allow the Respondent to “re-
place, build up, and strengthen the berms on the affected hill.”)
11 Blackhawk has a 27-page Teamwork Safety Program, which in-
cludes the following language: “In the event of an incident where medi-
cal treatment is required on mine property, at least (3) members of the
Operational Safety Review Board will participate in a return to work in-
terview with the employee(s).” J Exh. 8, Page 8. It is not clear whether
Evans and Milam were “members of the Operational Safety Review
Board” or had any consciousness of the language quoted by the General
Counsel regarding the attendance of three members at return-to-work
meetings following medical treatment on mine property. Although the
General Counsel points out the safety program language in its brief, it
did not elicit any testimony regarding it. There was no testimony that
Hager, Evans, Milam or anyone else, requested that three officials be
present at the return to work meeting. The record does not include
the accident. Hager asked whether he should come prepared to
work, and Milam said he “might as well.”
Hager came to the facility the following Monday and met with
Evans and Milam for a return to work meeting.11 Evans asked
Hager if there was anything else the Respondent should know
about the accident. Hager stated that there was not anything
wrong with the truck, or with the grade of the road, and that the
accident was “100 percent Jerry Hager.”12 He stated that he was
anxious to return to work. Evans asked Hager whether there
were any mitigating factors that the Respondent should take into
account regarding the accident. Hager stated that the Respond-
ent had not task trained him to operate the truck. Evans told
Hager that the Respondent had looked into the matter and be-
lieved that Miller had, in fact, task trained him and that the only
thing left to be done in that regard was for Hager to sign the
MSHA task training certification. At any rate, the record does
not show that Hager ever claimed that his lack of task training
on the rock truck rendered it difficult, or uncomfortable, for him
to operate it, nor does it show that Hager asserted that training
would have prevented the accident.
Evans told Hager that he was being suspended for 3 days and
that the Respondent would perform an investigation regarding
the accident during that time. Hager asked why the investigation
had not been performed already, and Evans told him it was be-
cause the Respondent had to hold its action in abeyance while
Hager was out on workers’ compensation. Based on the record,
I credit Evans’ and Milam’s testimony that they believed that
during the period when Hager was on workers compensation it
was legally advisable to hold consideration of his potential ter-
mination in abeyance.13 Moreover, Evans credibly testified that
he was uncertain as to whether Hager would want, or be medi-
cally able, to return to work with the Respondent, and, in his
view, there was no reason to address the question of disciplining
Hager for the accident unless he did seek to return.
On September 21––3 days after the return to work meeting––
the Respondent terminated Hager’s employment. Evans and
Milam testified that they agreed that this was the appropriate ac-
tion. The reason given for Hager’s discharge in the Respond-
ent’s contemporaneous records is: “Negligent/unsafe act result-
ing in bodily injury and property damage.” R. Exh. 20, Page 33.
Evans and Milam both testified that that was the reason for the
evidence of other instances in which “medical treatment was required on
mine property” and does not show that the Respondent generally adhered
to the language regarding the attendance of 3 members of a safety review
board where that was the case. On the record, it is not clear that, at the
time, anyone involved in the matter was aware of the safety program
language pointed out by the General Counsel in its brief.
12 While testifying, Hager re-affirmed that the accident was “100 per-
cent Jerry Hager.” Tr. 69–70.
13 The Respondent cites to provisions of the West Virginia code that
can reasonably be read to mean that, when an employee is on workers
compensation and entitled to disability benefits, it is unlawful discrimi-
nation to terminate that employee for actions related to the injury. See
W. Va. Code Section 23-5A-3(a). It is not clear that this authority, in
fact, required the Respondent to hold the investigation and disciplinary
decision in abeyance, but the authority does lend credence to Evans’ and
Milam’s testimonies that they believed they were required to do so.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharge decision.14 Milam testified that he considered Hager’s
action in taking his eyes completely off the road to be “reckless”
and not comparable to the actions of other employees, discussed
below, who were involved in accidents but who Milam believed
were only guilty of “probably not paying enough attention.” Tr.
359–361.
According to Evans and Milam, there were no “mitigating”
factors that reduced Hager’s culpability for the accident. Milam
stated that if they had found that Hager’s task training had not
been finished “we definitely would have looked at that and taken
it into consideration as far as mitigating circumstances surround-
ing the accident.” Tr. 348–349 However, Milam did not state
that such consideration would ultimately have altered the deci-
sion given the circumstances present here.
Evans made the final termination recommendation and for-
warded it to Blackhawk’s human resources department and legal
department for approval. The recommendation included infor-
mation about whether the employee had made complaints re-
garding safety and/or under various laws. According to Milam,
this information is included “so we can have a conversation to
make sure that we’re not doing something that we shouldn’t be
doing.”
Evans and Milam informed Hager of the termination decision
by phone. Hager stated that he wanted to keep his job and pressed
them to consider that the Respondent had not task trained him on
the truck. The Respondent’s officials responded that they be-
lieved Hager had, in fact, been task trained. Hager accused them
of terminating him because of the union campaign. Evans re-
sponded that Hager was not being discharged for reasons related
to the union campaign, but rather because he failed to maintain
control of his vehicle due to his negligence. Hager had not been
disciplined during his 90 days of employment prior to the July
24 accident.
The parties spent a significant amount of time presenting evi-
dence on the question of whether the Respondent had, in fact,
task trained Hager on the truck. I find that the Respondent did
not do so. In this regard, I found the MSHA task training certi-
fication form very telling. R. Exh. 14. This document, filled out
by Miller, purports to show that the training requirements were
completed on July 17. The Respondent has not plausibly ex-
plained why, if this was the case, the Respondent had not ob-
tained Hager’s signature on the trainee signature line a full week
later at the time of the accident. I note that the record includes
54 task training forms for other employees and every one of
those forms was signed and the date line for the trainee’s signa-
ture was the same as a date when training occurred. GC Exh. 26.
In addition, Miller admitted at trial that he, not Hager, placed
Hager’s initials in the section of the form where the trainee is
required to initial to certify that the training was received. Tr.
231–232. I consider it highly suspicious that Miller would falsify
the form by placing Hager’s initials in the section where Hager
himself was supposed to initial. Lastly, the record shows that

14 Blackhawk’s written Teamwork Safety Program expressly directs
employees to keep their workplace “free of hazardous clutter and always
practice good housekeeping, and also to “[a]lways face the direction of
travel while operating machinery.” J Exh. 8, Page 13. These rules were
not identified by Evans and Milam as bases for the decision to terminate
training certifications are completed in a book and that carbon
copies of those certifications remain in the book in the chrono-
logical order in which they are completed. Thus, if the disputed
Hager training certification form was situated in its proper chron-
ological position within the book it would support the Respond-
ent’s claim that Hager was task trained on the date given on the
form. On the other hand, if the form for Hager was situated out
of chronological order––and in particular, if it was positioned
later in the book than the certification forms dated after July 17
––it would suggest that the disputed Hager certification docu-
ment was created after the fact. This was raised at the hearing,
but the Respondent chose to present only a copy of the page from
the certification book that showed the Hager training certifica-
tion form dated July 17, and did not introduce, or present for in-
spection, the entire book in which it was contained. The Re-
spondent did not explain its failure to do so. Based on all of the
above, I find that Miller did not complete the MSHA certification
for Hager on July 17 to reflect training that had occurred that
day, but rather completed it after the accident occurred.
In addition, I found Hager a more credible witness than Miller
on the question of whether Miller had task-trained Hager on op-
eration of the truck. Hager testified in a clear and certain manner
that the Respondent had not task trained him on the rock truck.
As noted previously, Miller appeared uncomfortable and his
voice sometimes dropped or became more timid while he was
testifying on the subject. I note, moreover, that Miller would
have an incentive to claim that Hager was task-trained on the
truck, since it was his responsibility to comply with the MSHA
training requirement for Hager and shield the Respondent from
the penalties for failing to do so. There is no comparable reason
why Hager, at the time of the accident, would deny that he had
been task trained on the truck. Certainly, there is no reason at all
why Hager would believe that he could benefit from not signing
the task training certification on July 17 (a week before the acci-
dent), when the certification states that the training was com-
pleted.
In addition, I do not credit Miller’s claim that the reason Hager
had not signed the MSHA certification as of July 24 was that,
although the training had been completed a week earlier, Miller
was still assessing whether Hager could capably operate the rock
truck. To begin with, it is clear that all Hager could certify to
was that he received the training, not that he was capable of op-
erating the vehicle in Miller’s eyes. So while Miller’s reasoning
might conceivably explain why Miller himself had not yet signed
the form as of July 24, it in no way explains why Hager did not
sign the form at the time of the training, which the trial exhibits
indicate was standard practice. Moreover, the record does not
suggest that there was anything about Miller’s observation of
Hager that would warrant an unusually extended observation pe-
riod. To the contrary, Miller testified that on July 17 he watched
Hager operate the truck, Tr. 229, and that task training took only
15 to 20 minutes because Hager “understood pretty much
Hager. The record shows that Hager received a copy of the safety pro-
gram document on April 25, 2017, but there was no evidence showing
that the above quoted rules, or any other portion of the document, were
discussed with Hager during his orientation or at any other time prior to
the July 24 accident.
ROCKWELL MINING, LLC 7
everything about the truck,” Tr. 228. For all these reasons, I find
that, had task training actually been completed on July 17, Hager
would have signed the certification form on that date, just as the
record indicates had been the case with other trainees,15 not left
it blank for the purposes of continuing observation a full week
later.
Although I find that Miller did not task train Hager on the rock
truck, the record does not provide a basis for concluding that Ev-
ans and Milam were motivated by antiunion animus when they
chose to credit Miller’s representations that Hager had been
trained. If the Respondent had chosen to credit Hager’s state-
ment that he had not been task trained, rather than its own super-
visor’s statement that Hager had been trained, it would have
opened the Respondent up to substantial penalties. Thus, even
assuming that Evans’ and Milam’s decision to credit Miller was
not only wrong, but also unreasonable given the other evidence
available to them, that would not, under the circumstances pre-
sent here, show that their inquiry or conclusion was tainted by
animosity towards Hager’s protected activity.
F. Discipline Administered to Other Employees Involved
in Accidents
When deciding what, if any, level of discipline to impose on
employees who have accidents at the Glancy mine, the factors
that the Respondent has considered include the degree of negli-
gence attributable to the employee, the severity and/or potential
severity of the accident, and mitigating factors. Evans’ and
Milam’s testimony indicated that mitigating factors include such
things as inclement weather, poor road conditions, and the extent
to which the Respondent could have taken steps to help prevent
the accident.
In their posthearing briefs, the parties discuss three Glancy
employees who the record shows were involved in equipment
accidents, but were not discharged. The General Counsel con-
tends that the Respondent meted out harsher discipline to Hager
than to two of the other employees and that the reason for the
harsher discipline was that Hager had engaged in protected union
and concerted activity, and because he testified for the Union in
the August 24 hearing regarding election objections. The Re-
spondent contends that the difference in discipline was based on
differences in the circumstances of the accidents.
1. David Muenich: Muenich began working for the Respond-
ent in March or April of 2017. He operated a fuel truck that cir-
culated around the Glancy mine and provided fuel to other equip-
ment. He was involved in a workplace accident on July 19, 2017.
He was operating the truck on a coal seam that was elevated ap-
proximately 34 inches above the surrounding coal pit floor.

15 I am not persuaded to the contrary by the fact that Cline, the MSHA
inspector, did not cite the Respondent for failing to task train Hager on
operation of the rock truck. Cline did not testify, and his investigation
notes make no mention of the question of task training, do not discuss
what, if any, conclusion he reached on that issue, and certainly do not
describe how he came to any conclusion he might have reached. At any
rate, Cline did not have the benefit of observing Hager and Miller address
the matter while testifying under oath and subject to cross examination.
I also give no weight to the Respondent’s proffer of testimony by Milam
that he had been told by Miller that he in turn had been told by Cline that
he had in turn been told by Hager that the task training had been
There was an area at the edge of the seam where the Respondent
had sloped the coal into a ramp over which equipment could be
driven down from the seam to the pit floor. In other areas there
was just a ledge and a drop at the edge of the seam. The coal
seam, the sloped area, the ledge, and the coal pit area around it
were all the same color.
At the time of the July 19 accident, Muenich was driving the
fuel truck down from the elevated seam. Muenich thought he
was entering onto the drivable slope, but instead drove off the
ledge that was adjacent to the slope. The resulting 34-inch drop
caused damage to the truck. The parts necessary to repair the
truck cost $6000 to $7000, and the repair receipts for the work
total approximately $10,000. The truck was out of operation for
several weeks. During the Respondent’s investigation of the ac-
cident, Muenich stated to the Respondent that it had been his
fault. There is no indication in the record that anybody was in-
jured as a result of the accident, or that MSHA found a safety
violation.
The decision about what disciplinary action to take against
Muenich for the July 19 accident was made by Maggard (Black-
hawk president of surface operations) and Evans. They decided
not to discharge Muenich, but rather suspended him from the
time of the accident until July 25. The disciplinary notice, which
was signed by Milam and Muenich, stated that the action was
based on “substandard work” and “violation of safety rules.”
The notice also states that future violations of safety policy or
practice would result in discipline up to, and including, dis-
charge.
Maggard and Evans both testified that they considered certain
mitigating factors in deciding not to terminate Muenich for the
July 19 accident. They both noted that given that the coal seam
and the surrounding area were all the same color it was under-
standable that Muenich would find it difficult to tell that he was
heading towards a ledge rather than towards the drivable slope.
Maggard recalled making what he considered a similar mistake
early in his own career. Maggard stated that Muenich’s negli-
gence was a “misjudgment” and not the same sort of negligence
that Hager committed when he ducked under the dashboard, tak-
ing his eyes off the road, to retrieve his hard hat.16 Evans testi-
fied that the Respondent, in assessing discipline for Muenich,
considered the fact that the company had not put a berm at the
edge of the coal seam to signal where the ledge was to help em-
ployees locate the drivable slope. Evans’ testimony suggests that
termination of Muenich was considered a possibility, but that,
based on the circumstances, the Respondent “chose for it not to
be something that was a termination offense” Tr. 185, but rather
cause for a suspension.
completed. Not only is this unreliable multiple level hearsay, but the
entire chain is premised on the reliability of Miller’s communication to
Milam on the subject and, as previously discussed, Miller was not a cred-
ible witness regarding the training issue.
16 The record does not support the General Counsel’s claim, Brief of
General Counsel at Pages 14 to 15, that Muenich drove forward off the
ledge because he was not looking at the path ahead, but rather in the rear-
view mirror. The evidence indicates that Muenich had checked his rear-
view mirror, but not that he was doing so at the time he drove off the
edge of the coal seam.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Muenich returned to work, Evans told Muenich that he
hoped that the decision not to discharge him “plays in our favor
that you maybe think about voting nonunion for us.” A short
time thereafter, Meddings (foreman at the Glancy mine) told
Muenich that if the employees elected union representation, the
life of the operation at the Glancy mine would be shortened.
Subsequent to the events surrounding the July 19 accident, and
Muenich’s return to work following it, Muenich testified as a
witness for the Union in the same August 24 hearing on election
objections at which Hager testified. The record does not show
that Muenich engaged in protected activities prior to the hearing,
or, if he did, that the Respondent knew of any such activities.
That means, as well, that there is no evidence that the Respond-
ent knew of any union activities by Muenich at the time it de-
cided on what discipline to impose based on the July 19 accident.
On February 15, 2018, Muenich was involved in a second in-
cident at the Glancy mine, although one that was not an accident
that caused damage. That day, Muenich was operating a fuel
truck that had a defective fuel gauge for its own engine. There
was also a problem with the truck’s alternator. On the day in
question, Muenich’s engine ran out of fuel and he needed the
assistance of others to begin operating again. Muenich testified
that running out of fuel would usually not have been a problem
for him because he could refuel his own truck from the tank that
he carried to fuel other vehicles. However, it was not possible to
do that in this instance because of the malfunctioning alternator
in his truck. The Respondent suspended Muenich for 5 to 7 days
for the February 15 incident. According to Evans, a mitigating
factor that weighed against more severe discipline was that the
truck’s malfunctioning fuel gauge and alternator that had con-
tributed to the incident.
2. James McDonald: McDonald has been employed by the
Respondent as a technician since March 23, 2017. In July 2017
the Respondent was informed that McDonald would be the union
observer during the August 3 representation election. McDonald
also assisted the Union by collecting authorization cards from
employees.
McDonald was involved in an accident on October 9, 2017.
He was backing up a truck at the Glancy mine and ran into a
portable toilet, destroying it. No one was in the toilet at the time
or there likely would have been a serious injury. When McDon-
ald hit the toilet he also hit an oxygen apparatus of some kind,
and damaged that as well. McDonald testified that in his view
the Respondent bore full responsibility for the accident because
the portable toilet had been moved to that location for the first
time that day and “no one was told.” McDonald indicated that
the portable toilet’s new location was in an area that he had cus-
tomarily used for backing up. There is no evidence in the file
that this accident, which did not cause an injury, was reported to,
or investigated by, MSHA. The Respondent’s internal incident
report lists the following “steps . . . to prevent recurrence”: “Keep
all porta johns out of heavy traffic areas. Be more aware of sur-
roundings and work area.”
Evans issued an oral warning to McDonald for his part in the
accident. Evans testified that more extreme discipline was not
called for given mitigating factors. Specifically, Evans stated
that McDonald was called upon to back the truck up in very tight
quarters, visibility was limited because the area was congested,
the truck did not have a backup camera, and the portable toilet
had just been moved into an area that drivers were accustomed
to using for backing up.
3. Dave Dingess: On October 3, 2017, Dingess was assigned
to use an excavator with a hammer attachment to break up rocks.
He had positioned the excavator on top of some the rocks them-
selves. It was night, and quite dark, although the darkness was
not total because of lights on the excavator. At one point the
rocks supporting the excavator shifted without Dingess’
knowledge and, when he turned the excavator, it became unbal-
anced, slid down, and tipped onto its side. As a result of this
accident the excavator was out-of-service for a month and re-
quired repairs costing approximately $13,500. The Respond-
ent’s documentation regarding the accident states that Dingess’
injuries were limited to scratches and cuts, and that he had de-
clined to go to the hospital.
The record evidence is somewhat unclear on Dingess’ level of
responsibility for the accident. In a written statement, Dingess
indicated to the Respondent that he had performed the same type
of task in the same manner many times during his 20 years as a
miner. He stated that it would have been “good” to have a light
on the back of the excavator. Milam’s report on the incident
states that the details had been discussed with “upper manage-
ment” and “[a]ll parties came to the conclusion . . . that the inci-
dent did not occur due to negligence by Mr. Dingess.” Evans
testified, however, that Dingess “could have done it better . . .
could have evacuated himself off of that pad in a different man-
ner that would have prevented––possibly prevented what hap-
pened.” A report of the Respondent’s investigation of the acci-
dent identifies the cause as “improper position for the task” and
says recurrence should be prevented by having “employees op-
erating this equipment stay on stable ground while busting
rocks.” GC Exh. 13. There was no evidence that it was uncom-
mon for employees to position excavators in the manner that
Dingess had at the time of the accident or that, prior to the acci-
dent, employees had been discouraged from doing so. Evans
stated that in deciding on the discipline imposed on Dingess, he
considered that at the time of the accident Dingess was operating
in the dark. In an internal report, Milam stated that “[t]he three
days [Dingess] spent away from work will stand for discipline in
this matter.”
Analysis
The complaint alleges that the Respondent violated Section
8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act by discrim-
inatorily suspending and then terminating Hager because of his
protected concerted and union activities and because he testified
during the August 24 representation case hearing. In such cases
the General Counsel, under the Wright Line decision, bears the
initial burden of showing that the Respondent’s decision to take
adverse action against an employee was motivated, at least in
part, by activities protected by the Act. 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983) (Section 8(a)(3) and (1)); see also
American Red Cross Missouri-Illinois Blood Services Region,
347 NLRB 347, 349 (2006) (Wright Line analysis applied to al-
legation that an employer violated Section 8(a)(1) by
ROCKWELL MINING, LLC 9
discriminating based on protected concerted activity), American
Gardens Mgmt. Co., 338 NLRB 644, 644–645 (2002) (Wright
Line analysis applies to allegation that employer violated Section
8(a)(4) by discriminating against employee for testifying in a
representation hearing) and Gary Enterprises, 300 NLRB 1111,
1113 (1990), enfd. 958 F.2d 368 (4th Cir. 1992) (Table) (same).
The General Counsel may meet its initial Wright Line burden by
showing that: (1) the employee engaged in union or other pro-
tected activity, (2) the employer knew of such activities, and (3)
the employer harbored animosity towards the Union or other pro-
tected activity. Camaco Lorain Mfg. Plant, 356 NLRB 1182,
1184–1185 (2011) ADB Utility Contractors, 353 NLRB 166,
166–167 (2008), enf. denied on other grounds, 383 Fed. Appx.
594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270,
1274–1275 (2007); Senior Citizens Coordinating Council, 330
NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB
355, 356 (1999). Animus may be inferred from the record as a
whole, including timing and disparate treatment. See Camaco
Lorain supra. If the General Counsel establishes discriminatory
motive, the burden shifts to the employer to demonstrate that it
would have taken the same action absent the protected conduct.
Camaco Lorain, supra; ADB Utility, supra; Intermet Stevens-
ville, supra; Senior Citizens, supra.
There is no dispute in this case that Hager engaged in activity
protected by the Act and that the Respondent was aware of that
activity. In early July, Hager engaged in union activity by meet-
ing with employees and asking them to sign union authorization
cards. It is reasonable to infer that the Respondent knew about
Hager’s activities, not only because relatives of management of-
ficials were among the employees present and because the Re-
spondent stipulates that employees informed management about
the card solicitation effort, but also because the Respondent’s
objections to the election specifically discuss Hager’s conduct
during his meeting with employees. Hager engaged in additional
protected activity during meetings that the Respondent held with
employees. At the meeting on July 11, Hager voiced complaints
on behalf of himself and others about issues with the mainte-
nance of equipment. During the meeting that Milam held with
employees on July 20 or 21, Hager publicly argued that the Re-
spondent’s suspension of Muenich demonstrated that employees
needed union representation. Hager engaged in activities pro-
tected by Section 8(a)(4), and known to the Respondent, on Au-
gust 24 when he testified on behalf of the Union at the Board
hearing on the Respondent’s objections to the election.
The General Counsel has a much more difficult time with the
third element of its initial burden––i.e., establishing that the em-
ployer harbored animosity towards the Union or other protected
activity. The record does not show that the Respondent directed
antiunion statements or threats at Hager or his protected activity.
Nor is there evidence that the Respondent attempted to interfere
with Hager’s prounion efforts during the campaign or his coop-
eration with the Union during the representation proceeding.
Although the Respondent campaigned against the Union, and
continues to challenge the Union’s certification as bargaining
representative at the Glancy mine, the General Counsel has not
alleged or shown that the Respondent exceeded the bounds of its
lawful right to campaign against unionization or that its state-
ments included threats or other unlawful coercion in violation of
the Act. Nor is there evidence that the Respondent had a history
of violating, or being accused of violating, the Act at its other
facilities, a number of which have bargaining units represented
by the Union. Cf. St. George Warehouse, Inc., 349 NLRB 870,
878 (2007) (employer’s prior unfair labor practices relied on as
evidence that discipline was motivated by union animus).
I also reject the contention that animus is evidenced by what
the General Counsel calls the “lackluster” quality of the Re-
spondent’s investigation of Hager’s accident. Brief of General
Counsel, Page 20. By the time it made the decision to suspend
and then terminate Hager, the accident had been subject not only
to the Respondent’s inquiry, but to an extensive MSHA investi-
gation with which the Respondent cooperated. The Respondent
did not discipline Hager until after MSHA completed its investi-
gation and provided its findings, which indicated that Hager’s
actions were a cause of the accident. At the time it decided on
discipline, the Respondent knew the high cost of repairing the
truck and of the MSHA citations. At any rate, this was not an
instance in which the key facts were disputed and where further
investigation was necessary to determine the essentials of what
happened. The Respondent and Hager agree that neither me-
chanical issues nor weather or road conditions contributed to the
accident and that the accident occurred when Hager lost control
of the vehicle he was driving because he ducked under the dash-
board of his truck to retrieve a hard hat. Even at that, when Hager
attempted to return to work the Respondent gave him an oppor-
tunity to raise anything else he thought the Respondent should
know about the accident before deciding about discipline. Hager
was not shy about doing so, repeatedly stating that he was not
task trained regarding the truck. Given these circumstances, the
General Counsel has not shown that the investigation was inad-
equate, much less that it was suspiciously inadequate. Cf.
Amptech, Inc., 342 NLRB 1131, 1146 (2004) (failure to inquire
of the disciplined employee “constituted a rush to judgment at-
tributable to Respondent’s unlawful motivation to take adverse
action against the leading prounion employee on the premises”),
enfd. 165 Fed. Appx. 435 (6th Cir. 2006).
The strongest evidence of antiunion animus that I find on this
record is Evans’ July 2017 statement to employee Muenich in
which Evans made an explicit connection between disciplinary
leniency and the employee’s vote in the union election. Specifi-
cally, Evans told Muenich that he hoped that the Respondent’s
decision not to discharge him for his part in the July 19 accident
“plays in our favor that you maybe think about voting nonunion
for us.” Although this statement by Evans was not made to, or
about, Hager, and although there is no allegation that it exceeded
the bounds of the Respondent’s lawful ability to campaign
against the Union, it does provide some relevant evidence of an-
tiunion animosity and a connection of such animosity to the Re-
spondent’s disciplinary decisions. See Brink’s Inc., 360 NLRB
1206 (2014) (“conduct that exhibits animus but that is not inde-
pendently alleged or found to violate the Act may nevertheless
be used to shed light on the motive for other conduct that is al-
leged to be unlawful”). The Board has held that, un-
der Wright Line, “proving that an employee’s protected activity
was a motivating factor in the employer’s action does not require
the General Counsel to make a particularized showing of animus
towards the disciplined employee’s own protected activity.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Commercial Air, Inc., 362 NLRB 379, 379 fn. 1 (2015). Under
that standard, Evans statement to Muenich has some weight even
though it was not made to or about Hager.
I am mindful that suspicious timing can often demonstrate an-
imus,17 however, the General Counsel’s argument that the timing
in this case was suspicious is not persuasive. It is true that
Hager’s last day of actual work for the Respondent was July 24
––only two or three weeks after Hager held a meeting with em-
ployees soliciting their support for the Union and just a few days
after the July 20 or 21 meeting at which Hager attempted to coun-
ter management’s arguments against unionization. If that was
the extent of the timeline here, the timing would be relatively
strong evidence of animus. In this case, however, there was a
significant intervening event––Hager’s catastrophic accident of
July 24.18 It was Hager’s injuries from that accident that caused
him to stop working from July 24 until September 18, not any
decision by the Respondent. Moreover, Hager’s part in causing
that accident, which led to MSHA finding a safety violation, cer-
tainly justified, and arguably compelled, the Respondent’s con-
sideration of disciplinary action. To the extent that the General
Counsel contends in the alternative that the timing is suspicious
because the Respondent did not suspend or terminate Hager in
the immediate aftermath of the accident but waited to do so until
mid-September––after Hager testified in the representation hear-
ing on August 24––that argument is also unpersuasive. The ev-
idence showed that Evans and Milam did not make a decision
regarding discipline until after September 18 because that was
when Hager was medically released and sought to return to his
duties. As discussed earlier, Evans’ and Milam’s understanding
was that it was legally advisable to wait to take disciplinary ac-
tion until Hager was no longer on workers’ compensation and,
in any case, they believed it was not necessary to face the disci-
plinary issue unless and until Hager sought to return to his duties.
On balance I find, based primarily on Evans’ statement to
Muenich, that the General Counsel has succeeded in making a
showing, albeit a weak one, of anti-union animus––the final ele-
ment of its initial burden under Wright Line. Therefore, the bur-
den shifts to the Respondent to show that it would have sus-
pended and terminated Hager absent his protected activity.
Camaco Lorain, supra; ADB Utility, supra; Intermet Stevens-
ville, supra; Senior Citizens, supra. I find that the Respondent
has met that burden here. Hager had been working for the Re-
spondent for only 90 days––the term of his probationary period
––at a time when his negligence caused an extraordinarily dan-
gerous, disruptive, and costly accident. Hager’s negligence re-
sulted in disabling spinal and head injuries to Hager himself and
necessitated the suspension of operations at the Glancy mine.
MSHA found that the resulting accident was significant enough
that it “could reasonably be expected” to result in “permanently
disabling” injuries, and a number of witnesses testified that they
feared the injuries would be fatal. The necessary repairs to the

17 LB&B Associates, Inc., 346 NLRB 1025, 1026 (2006) (fact that em-
ployer’s adverse action against employee immediately followed em-
ployer’s first knowledge of that employee’s union sympathies, supports
an inference of animus), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); see
also Camaco, 356 NLRB at 1185.
truck cost approximately $61,000 in parts and 200 hours of me-
chanics’ time. MSHA investigated the accident and found a
safety violation based on Hager’s losing control of the truck.
Milam credibly testified that the Respondent concluded that it
was reckless for Hager to take his eyes off the road and duck
down under the dashboard while making a turn and without stop-
ping the truck. Similarly, Maggard testified that he viewed
Hager’s action as particularly reckless. Even if one views
Hager’s mistake to be an understandable, or even a common,
one, the fact that that mistake resulted in such a shocking out-
come––i.e., a 550,000-pound truck rolling side-over-side down
a slope with the attendant injuries, disruptions, and costs––would
reasonably influence the employer’s response regardless Hager’s
protected activities.
In reaching the conclusion that the Respondent showed it
would have taken the same action regardless of Hager’s pro-
tected activities, I considered the fact that the Respondent did not
present evidence of any other instances when it terminated a
Glancy employee for causing an accident. However, the record
does not include evidence of any other accidents that remotely
approached Hager’s in terms of their severity or which involved
comparable employee carelessness. This, I would point out, is
not particularly surprising since the Respondent had started the
Glancy operation only about a year earlier, and so there was not
an extensive history from which to draw examples of comparable
accidents.
The General Counsel attempts to counter the evidence that the
circumstances of Hager’s tenure and accident would have re-
sulted in his suspension and discharge absent any of his protected
activity by pointing to the lesser discipline––suspensions––is-
sued to Muenich based on his July 19 accident and to Dingess
based on his October 3 accident, and also by arguing that the
Respondent failed to give due consideration to mitigating cir-
cumstances in Hager’s case. The former argument is unpersua-
sive because neither Muenich’s nor Dingess’ accident was com-
parable to Hager’s. Neither Muenich nor Dingess was shown to
have caused serious injuries, much less injuries that, like
Hager’s, rendered him disabled from his duties for an extended
period of time. Second, neither Muenich’s nor Dingess’ accident
resulted in MSHA finding safety violations or deeming the acci-
dents as so major as to make permanently disabling injuries an
expected outcome. Third, only Hager’s accident was shown to
have resulted in a forced shut-down of the Glancy operation for
a period of time. Fourth, the costs of the repairs necessitated by
Hager’s accident were at least three or four times greater than
those for either Muenich’s or Dingess’ accidents.
I credit the testimony of Evans, Milam and Maggard that the
Respondent viewed Hager’s negligence as more severe than that
of the other employees involved in accidents. The record indi-
cates that Muenich mistook the ledge of the coal seam for the
adjacent drivable slope because the seam, the slope, and the
18 Cf. Lou’s Transport, Inc., 361 NLRB 1446, 1458 (2014), enfd. 644
Fed. Appx. 690 (6th Cir. 2016) (timing of employee’s discharge is not
suspicious even though it occurred on the same day as protected activity,
where it also occurred on the same day that the employer discovered that
the employee had responded to an instruction to continue working by
saying “f—k you”).
ROCKWELL MINING, LLC 11
surrounding coal pit were all the same color, and because the
Respondent did not take steps to signal where the drivable area
was. In this circumstance, the Respondent reasonably viewed
Muenich’s accident as resulting from inadequate care when sur-
veying the area ahead as he drove off the seam, not from a reck-
less decision not even to look where he was going as he drove
off the seam. Hager, on the other hand, ducked under the dash-
board, completely eliminating his view of the road at a time when
the truck was in motion and making a turn. In other words,
Hager did not merely misjudge where the road was despite rea-
sonable efforts to see it, he caused the accident by choosing to
completely sacrifice his view of the road.
Dingess’ level of responsibility for his accident is not clear.
In a written statement, Dingess stated to the Respondent that,
during his 20 years as a miner, he routinely performed the same
type of task in the same manner as he was doing at the time of
his accident. Milam’s contemporaneous report on the incident
states that the details had been discussed with “upper manage-
ment” and “[a]ll parties came to the conclusion . . . that the inci-
dent did not occur due to negligence by Mr. Dingess.” Evans
testified, that Dingess could possibly have prevented the accident
by going about his work in a different manner and the Respond-
ent’s internal report stated that it was improper for Dingess to
position the excavator on the rocks. However, the record does
not show that Dingess knew, or should have known, that posi-
tioning the excavator on the rocks was improper or that operators
generally avoided doing so. On this record, I credit the Respond-
ent’s officials that they did not treat Muenich or Dingess more
leniently than Hager for comparable errors and accidents, but ra-
ther imposed lesser discipline on them because their errors and
accidents were less serious than Hager’s.19 Indeed, under all the
circumstances, the fact that the Respondent suspended Muenich
and Dingess for their far less serious accidents, and even appar-
ently gave some consideration to whether termination was war-
ranted for Muenich, further persuades me that the Respondent
would have terminated Hager for the July 24 accident regardless
of his protected activity.
The General Counsel’s contention that various mitigating fac-
tors in Hager’s case were not given appropriate consideration in
the discipline decision is also not persuasive. The General Coun-
sel argues that Hager’s discipline should have been adjusted
based on Miller’s failure to task train Hager on the operation of
the truck. As discussed above, however, the Respondent inquired
into this matter and concluded that Hager had received the task
training. Although I reach a different conclusion than the Re-
spondent on the question of whether the training was provided,
the record does not provide a basis for concluding that the Re-
spondent’s inquiry or conclusion on this score was tainted under
the Act. At any rate, I view the task training issue as a red her-
ring. The record does not provide any basis for believing that

19 The General Counsel argues that the Respondent could not legiti-
mately take into account that Hager’s negligence was more extreme than
that of Muenich or Dingess because the company’s disciplinary policy,
handbook and teamwork program manual make “no references to negli-
gence-related sliding scales.” Brief of General Counsel at Pages 27–28.
This argument is not persuasive. It is common sense that an employer
will tailor the severity of the discipline it imposes to the severity of the
offense. The fact that an employer’s written materials do not specifically
such training of an experienced operator like Hager would have
covered something so basic as the necessity of keeping the road
in view while driving a 550,000-pound truck. Hager did not
claim that his decision to duck down under the dashboard re-
sulted from his not being adequately familiar with proper opera-
tion of the truck, or because he had not been trained to keep the
road in view while driving. Indeed, Hager indicated that he took
that action impulsively.
In addition, I do not view the MSHA finding regarding the
inadequacy of the Respondent’s policies and procedures as
something that the Respondent would necessarily be expected to
rely on to adjust Hager’s discipline to something less than sus-
pension and termination. As noted above, MSHA found that
Hager’s reaching for his hard hat and losing control of the vehi-
cle was a cause of the accident and Hager himself told the Re-
spondent, and reaffirmed at trial, that the accident was “100 per-
cent Jerry Hager.” When Evans and Milam asked Hager if there
were things they should know about the circumstances of the ac-
cident that might mitigate his culpability, he never stated that his
actions or the accident resulted from the inadequacy of the Re-
spondent’s policies and procedures with respect to securing
items in the cab of the truck.
The same conclusion is appropriate with respect to the Gen-
eral Counsel’s argument that the Respondent should have miti-
gated Hager’s discipline based on the State Agency’s finding that
the berm along the road, at least in its post-accident condition,
was not adequate. Under the circumstances here, the General
Counsel’s argument based on the berm violation is another red
herring. There is nothing in the record to show that Hager’s ac-
cident was the result of an inadequately constructed berm. The
General Counsel did not elicit any testimony to that effect from
Hager or anyone else. To the contrary, the only evidence on that
particular point was the testimony of Evans, a 37-year veteran of
the mining industry, who credibly stated that no berm he had
ever seen would have kept Hager’s truck from continuing off the
road and rolling over and down the hill.
For the above reasons, I find that the Respondent has met its
responsive burden and shown that it would have suspended and
discharged Hager based on his “negligent/unsafe act resulting in
bodily injury and property damage” even if Hager had not en-
gaged in activities protected by Section 8(a)(3) and (1) and Sec-
tion 8(a)(4) and (1) of the Act. The complaint allegations should
be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Sec-
tion 2(2), (6) and (7) of the Act.
2. United Mineworkers of America, International Union,
AFL–CIO, is a labor organization within the meaning of Section
2(5) of the Act.
discuss levels of misconduct does not mean that it must treat all miscon-
duct – from the most minor to the most egregious––the same. See, e.g.,
Mountain Shadows Golf Resort, 338 NLRB 581, 583–584 (2002) (Board
finds no discrimination where employer had no specific rule or written
policy but rather employed a “common sense” policy “in which the level
of discipline depends on the severity of the conduct.”), petition for re-
view denied by 86 Fed. Appx. 305 (9th Cir. 2004).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The Respondent was not shown to have committed any of
the violation of Section 8(a)(3) and (1) and Section 8(a)(4) and
(1) alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.20
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 4, 2018.

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.