FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
on behalf of AARON LEE ANDERSON,
A&G COAL CORPORATION and CHESTNUT LAND HOLDINGS, LLC,
TEMPORARY REINSTATEMENT PROCEEDING
Docket No. VA 2017-69-D
MSHA Case No.: NORT-CD-2017-02
Mine: Strip #12
Mine ID: 44-06992
Appearances: Ali Beydoun, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, Representing the Secretary of Labor
Wes Addington, Esq., Appalachian Citizens’ Law Center, Whitesburg, KY, Representing the Complainant
Billy R. Shelton, Esq., Shelton, Branham & Halbert PLLC, Lexington, KY, Representing Respondent
Before: Judge Andrews
On January 3, 2017, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary”) filed an Application for Temporary Reinstatement of miner Aaron Lee Anderson. (“Complainant” or “Anderson”) to his former position with A&G Coal Corporation, (AA&G@ or ARespondent@) at Strip #12 Mine pending final hearing and disposition of the case.
The application followed a Discrimination Complaint filed by Anderson on November 29, 2016, that alleged, in effect, his termination was motivated because of his protected activities. The Secretary represents that this Complaint was not frivolously brought and requests an Order directing Respondent to reinstate Anderson to his former position or a comparable position, within the same commuting area and with the same rate of pay and benefits he received prior to his discharge.
Congress created the temporary reinstatement as “an essential protection for complaining miners who may not be in the financial position to suffer even a short period of unemployment or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978).
A. On November 29, 2016 Complainant filed a complaint alleging discrimination that occurred on November 18, 2016 and resulted in his firing on November 21, 2016, after he had exercised his [sic]. Exhibit B
B. The Complainant worked at the mine since August 26, 2016. He has approximately 14 years of coal mining experience.
C. The Complainant was working on the evening shift of November 18, 2016. He was operating a haul truck which was being used to haul coal from the Pit area of the mine to stockpile.
D. The Complainant complained to his supervisor, Foreman Danny Orrick, over the cb radio that the pit area was dusty causing compromised visibility and requested that dust control measures be dispatched. Two other truck drivers also complained about the conditions and requested dust control measures. Foreman Orrick responded that a water truck would be sent to the pit area and instructed the drivers to continue doing their jobs. This conversation took place at approximately 6:05 pm.
E. By approximately 7:10 pm no measures had been taken to address the dusty conditions in the pit area and Foreman Orrick had not come to the area. Complainant was waiting to back his truck up to a loader to be loaded with coal. Complainant saw a truck pull out of the pit and thought it was clear to back up to the loader to be loaded. However, because of the dust and compromised visibility, Complainant was unable to see that another truck was still being loaded and backed into that truck.
F. According to A&G, the above incident resulted in over $50,000 in damages to the truck that was backed into.
G. A&G notified the Complainant that he was being terminated on November 21, 2016. He was told that he was being terminated due to the accident.
3) Based on my investigation to this date, I have concluded that there is reasonable cause to believe that the Complainant was discharged because he engaged in the protected activity when he complained about hazardous work conditions on November 18, 2016. The Complainant engaged in protected activity when he complained to his superior about the dusty conditions and compromised visibility in the pit area. The Complaint [sic] suffered an adverse action when his employment was terminated. There is reason to believe that the decision to discharge the Complainant was at least in part based upon his protected activity due to employer knowledge of the protected activity, coincidence in time between the protected activity and the adverse action and the close nexus between the protected activity and the proffered justification for the adverse action.
Prior to the hearing, on January 11, 2017, the Respondent filed a Motion to Toll Potential Reinstatement Order, wherein it stated that, subsequent to Anderson’s termination, A&G Strip No. 12 mine was idled with no immediate plans for future operations at the mine. Resp. Mot. to Toll, 1. It further states that “some of the laid off employees at A&G were offered an opportunity to transfer to a mine owned by a sister company at Bishop Coal.” Id. at 2. However, it states that “Anderson would not have been offered a transfer to Bishop Coal as all persons who accepted transfers to Bishop Coal had more seniority that [sic] Anderson and filled other jobs for which Anderson was not qualified to perform.” Id. In support of its Motion, the Respondent attached as Exhibit A “a list of the former A&G employees, at the time of the lay-off, who were offered the opportunity to transfer to Bishop Coal.”
In response, the Secretary filed on January 11, 2017, a Motion to Amend the Pleadings to Include Chestnut Land Holdings, LLC, as a Party. Chestnut Land Holdings, LLC, is the operator of the Bishop Impoundment Area Mine, which the Respondent referred to as the “sister mine” in its motion. Secy. Mot. to Amend, 2. According to Mine Data Retrieval System reports attached to the Motion, the Controller for both A&G Coal Corporation and Chestnut Land Holdings is James C. Justice II. Id. Additionally, the Secretary argues that this Court should not consider on an expedited basis Respondent’s Motion to Toll Temporary Reinstatement. Id.
Both parties were provided an opportunity to argue their motions at the hearing. Further, both parties were offered the opportunity to submit written replies within 24 hours following the close of the hearing, and both declined to do so.
I permitted evidence of tolling to be admitted at hearing. The ruling on both of these motions is provided, infra.
Summary of Testimony:
For the reasons that follow, I find that Anderson’s complaint was not frivolously brought.
The Commission has held, “[h]ostility towards protected activity—sometimes referred to as ‘animus'—is another circumstantial factor pointing to discriminatory motivation. The more such animus is specifically directed towards the alleged discriminatee's protected activity, the more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).
In the instant case, the Respondent evinced animus towards the protected activity at issue, as well as previous protected activities. Anderson testified that he had made three complaints to Orrick concerning the berm heights, and how they needed to be raised. Tr. 39. He described how Orrick grew agitated at his complaints, and in one instance responded that Anderson should do his job and Orrick would do his. Tr. 39. Furthermore, Anderson had complained many times about the handrail on his truck being broken. Tr. 29. The company repeatedly fixed the handrail, but never in a manner that prevented it from breaking again. Tr. 29, 56. Indeed, on the date of the accident, the handrail had remained unrepaired for approximately 10 days. Tr. 29, 56. Such responses to complaints—from inaction to outright hostility—would lead to a reasonable miner concluding that his safety complaints were unwelcome.
The Respondent also displayed animus towards Anderson’s protected activity of making safety complaints about the dust over the CB radio. On the evening of the accident, after making his safety complaints over the CB radio, Anderson was told that he and other operators were on the radio too much. Tr. 31. He was told to sign a document that stated that if he used the radio for anything other than business issues, he would face immediate termination. Tr. 32. The timing of these statements and the document evinces animus. All indications are that Anderson and others were using the CB radio only for safety and other related issues on November 18. Therefore, there appeared to be no reason for emphasizing that Anderson was not permitted to use the radio for non-business purposes, replete with the threat of termination, immediately following his use of the radio for safety complaints.
“Typical forms of disparate treatment are encountered where employees guilty of the same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate treatment is not necessary to prove a prima facie claim of discrimination when the other indicia of discriminatory intent are present. Id. at 2510-2513.
In the instant matter, neither party made an argument concerning disparate treatment.
Anderson’s Temporary Reinstatement Should Not be Tolled
The Respondent argued that should this Court grant the Secretary’s Application for Temporary Reinstatement, it should be tolled. In support of its request, Respondent states that the Strip No. 12 mine has been idled, and all employees of that mine were either laid off or transferred to the Bishop Mine. It argues that even if Anderson had not been terminated following the accident, he would not have been offered a transfer to Bishop Mine.
Respondent submitted into evidence a chart containing the names, dates of hire, wages, addresses, phone numbers, and whether each listed employee was laid off, transferred to Bishop, or refused transfer. RX-A. At hearing, Respondent put on Senior Vice President of Southern Coal, Patrick Graham, as a witness. Graham testified that three factors were used to fill the positions at Bishop Mine: the employee’s skill set, the employee’s seniority, and the employee’s willingness to transfer. Tr. 91-92. Graham did not testify as to how these three factors were weighted, but stated that seniority was the primary factor. Tr. 91-92.
“The Commission has recognized that the occurrence of certain events, such as a layoff for economic reasons, may toll an operator's reinstatement obligation.” MSHA obo Robert Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). This “limited inquiry to determine whether the obligation to reinstate a miner may be tolled even when it has been established that the miner's discrimination complaint is not frivolous,” must be consistent with the “narrow scope of temporary reinstatement proceedings.” MSHA obo Dustin Rodriguez v. C.R. Meyer & Sons Co., 2013 WL 2146640, *3 (May, 2013). Accordingly,
[a]n operator generally must affirmatively prove that a layoff justifies tolling temporary reinstatement by a preponderance of the evidence. Gatlin, 31 FMSHRC at 1055. However, if the objectivity of the layoff as applied to the miner is called into question in the temporary reinstatement phase of the litigation, judges must apply the “not frivolously brought” standard contained in section 105(c)(2) of the Mine Act to the miner's claim.
MSHA obo Russell Ratliff v. Cobra Natural Resources, LLC, 2013 WL 865606, *4 (Feb. 2013). “In other words, temporary reinstatement should be granted and not tolled unless the operator shows that the claim that the layoff arose at least in part from protected activity is frivolous.” C.R. Meyer & Sons, 2013 WL 2146640, *3.
Respondent has failed to provide sufficient evidence to support tolling Anderson’s temporary reinstatement. Graham testified that three factors were used to determine whether a miner would be laid off or transferred to Bishop Mine. Considering the evidence in light of each of these factors presents a problem. First, Respondent argues that seniority was the primary factor; however the chart shows that a miner that was hired the same month as Anderson was transferred to Bishop, whereas another miner who had a decade more seniority was laid off. One can only conclude that if seniority was actually a factor used by A&G, it did not hold the weight that Respondent states. Second, the chart supplied by Respondent does not list the skill sets or certifications of employees, making it impossible to determine if Anderson’s skills would have qualified him for a transfer. The chart only presents hourly wage, which is not a suitable proxy for presenting evidence of employee skills. Lastly, because Anderson was not an employee of A&G Coal at the time miners were offered transfer, his willingness to transfer was not considered. The evidence presented by Respondent in no way shows that Anderson would not have been transferred to Bishop Coal had he not been terminated following the accident. Therefore the Motion to Toll is denied.
Chestnut Land Holdings Should be Added as a Party
The Secretary filed a Motion to Amend the Pleadings to Include Chestnut Land Holdings, LLC, which operates the Bishop Mine, as a party. The Respondent opposed this Motion, stating that Chestnut Land Holdings is a separate entity in a separate state. Tr. 14.
Federal Rule of Civil Procedure 15 provides that leave to amend pleadings “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). In the instant case, Chestnut Land Holdings and A&G have the same Controller, James C. Justice II. Employees at A&G were transferred to Bishop Mine freely, and according the press release issued by A&G, there is an intent to transfer these employees back to A&G in the future. CX-A. In the Respondent’s pleadings, it referred to Bishop Mine as a “mine owned by a sister company,” and in the press release it referred to it as an “affiliate entit[y].” Resp. Mot. to Toll, 2; CX-A. The Strip No. 12 mine is currently idle, so justice requires that Anderson be temporarily reinstated to the same mine where other employees were transferred.
Distribution (Via E-mail and Certified Mail):
Ali Beydoun, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450, Beydoun.Ali@dol.gov
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522, email@example.com
Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858, firstname.lastname@example.org
Billy R. Shelton, Esq., Shelton, Branham & Halbert PLLC, 2452 Sir Barton Way, Suite 101, Lexington, KY 40509, email@example.com
Aaron Lee Anderson, 301 Gilbert Drive, Lynch, KY 40855, Kellypotter54@yahoo.com
 Pursuant to the Secretary’s Motion to Amend the Pleadings to Include Chestnut Land Holdings, LLC, as a Party, the arguments at hearing, and the ruling infra, Chestnut Land Holdings, LLC, is added as a Respondent in this case.
 Under Commission Rule 45, a Temporary Reinstatement hearing must be held within 10 calendar days of an operator’s request. 29 C.F.R. §2700.45(c).
 ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
 The tipple was located approximately four miles from the pit, and was called either Paragon or Kelly Loadout. Tr. 37.
 Anderson did not know why he was paid at the reduced rate, and spoke with Superintendent Tim Fugate, Foreman Orrick, and the Safety Director on several occasions about the issue. Tr. 36. They said that they would talk to the front office and try to increase Anderson’s pay. Tr. 36. Fugate approached Anderson in early November and said that he was going to approve the increased pay. Tr. 36.
 Danny Wayne Orrick testified at hearing on behalf of the Respondent. Orrick has worked in coal mines since 1978. Tr. 61. At the time of hearing, he was an equipment operator for A&G Coal Corporation at the Bishop Mine. Tr. 61. At the time of the incident at issue, he was a C Crew Foreman. Tr. 61. He is certified as a surface mine foreman in Kentucky, Virginia, Tennessee, and West Virginia. Tr. 61-62. Part of Orrick’s duties as a foreman included performing the pre-shift examination at the pit. Tr. 63-64.
 Employees used a designated channel on the CB radio to communicate. Tr. 25. All employees could hear what was said on the channel used. Tr. 25.
 Anderson based this belief on his experience in the mining industry and being told that “if you don’t do what they want, that there’s another guy to put in your seat.” Tr. 49, 51.
 In addition to being responsible for watering the pit, the water truck also is responsible for watering any part of the job where people are working. Tr. 83.
 The CB radios were mounted in the trucks and equipment, and Orrick did not carry a radio on his person. Tr. 71.
 Orrick also denied hearing any complaints on November 18 about lighting in the pit. Tr. 69.
 Orrick testified that shortly after 6 pm on November 18, the water truck had left the parking area and had gone to the loading area to get a load of water. Tr. 70. Orrick described the use of the water truck as a “normal thing we do…especially if it’s dry, because over the course of the shift there will be some dust created as the roads dry up.” Tr. 71. Anderson never saw a water truck come into the pit. Tr. 30.
 The 777 rock truck is a 100-ton truck, and the 789 truck is a 200-ton truck. Tr. 48.
 Graham had worked in the mining industry since 1969. Tr. 87. He has operated equipment, operated the shuttle car, and worked as a foreman. Tr. 87. He has worked internationally, and in mine rescue. Tr. 87-88.
 The press release and an article on the press release were admitted into evidence as Complainant’s Exhibit CX-A.
 In addition to complaints about the dust, Anderson also presented evidence that he had made numerous complaints about the truck handrail, as well as raising the berm height. Tr. 29, 39, 56.
 In his closing argument, Mr. Shelton made an argument that this Court finds quite troublesome. In the context of arguing that the company should not have to reinstate Anderson, Mr. Shelton stated:
If you look at the other person, there’s another person on 12/20/2015, Kevin Collins, who was a $16.50 an hour person who, again, was there, you know, six or eight months prior to Mr. Anderson. Who’s going to explain to Kevin Collins, that he’s a more senior employee with the same skills as Mr. Anderson and he has to be laid off so [Anderson] can be reinstated?
Tr. 121. If Mr. Shelton was arguing that the Respondent would lay off other miners as a response to Anderson’s discrimination complaint and temporary reinstatement, he should be aware that such actions may constitute discrimination or interference. Anderson’s actions of voicing safety complaints and filing a discrimination complaint are protected activities, and the company may not threaten or terminate other miners as a result of those actions.
Further, Mr. Shelton’s singling out a miner by name at hearing that would be targeted for layoff as a result of Anderson’s discrimination complaint and temporary reinstatement was highly inappropriate, and wholly unnecessary to the proceedings. The transcript of a hearing is a public document, and Mr. Shelton’s comments serve no purpose, and may result in miners’ speech being chilled for fear that one of their coworkers will suffer.