FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE
7 PARKWAY CENTER, SUITE
875 GREENTREE ROAD
PITTSBURGH, PA 15220
/ FAX: 412-928-8689
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
on behalf of FRANK CAFEGO,
Docket No. WEVA 2022-0317
MSHA Case No.: HOPE CD 2022-04
Mine: CV #2 Surface Mine
Mine ID: 46-09105
ORDER GRANTING TEMPORARY REINSTATEMENT
OF FRANK CAFEGO
Before: Judge Lewis
to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30
U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor
(“Secretary”) on April 28, 2022, filed an Application for Temporary
Reinstatement of miner Frank Cafego (“Complainant”) to his former position as
an equipment operator and truck driver with Civil, LLC. (“Respondent”) at Respondent’s
mine pending final hearing and disposition of the case.
to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement.
29 C.F.R. § 2700.45(c). The Application for Temporary Reinstatement was
served on Respondent by electronic mail on April 29, 2022. My management
analyst provided Respondent with Commission Rule 45 on May 4, 2022. The
Respondent has not filed a timely Request for Hearing. The Secretary proposed
on May 11, 2022, an Order of Temporary Reinstatement, which I approve herein.
Secretary has found that the Complaint was not frivolously brought and, as
explained below, has provided evidence supporting that determination.
Therefore, consistent with Section 105(c) of the Act, the temporary
reinstatement of Frank Cafego is granted.
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act and provides that a miner may file a
complaint with the Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2).
The plain language of the Act also provides that “if the Secretary finds that
the complaint was not frivolously brought, the Commission, on an expedited
basis upon application by the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2)
Commission’s regulations control the temporary reinstatement procedures. Once
an application for temporary reinstatement is served on the person against whom
relief is sought, that person shall notify the Chief Administrative Law Judge
or his designee within 10 calendar days whether a hearing on the application is
requested. 29 C.F.R. § 2700.45(c). If no hearing is requested, the Judge
assigned to the matter shall review immediately the Secretary’s application
and, if based on the contents thereof, the Judge determines that the miner’s
complaint was not frivolously brought, shall issue
immediately a written order of temporary reinstatement. Id.
there is a hearing, the Judge must determine
whether the complaint of the miner “is supported by substantial evidence and is
consistent with applicable law.”
Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC
2425, 2426 (Dec. 1993). In the instant case, however,
the Respondent has not timely filed a request for hearing. Thus, Commission
Procedural Rule 45(c) compels me to review the Secretary’s determination that
the complaint in this matter was not frivolously brought. See 29 C.F.R.
Secretary has provided the evidentiary basis for his determination that the
complaint in this matter has not been frivolously brought. The Act requires the
Secretary to investigate the miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2).
The Secretary’s application includes the Complaint filed
by Complainant (Exhibit “A” to the Application) and the Declaration of
Special Investigator Russell Richardson indicating that this was done (Exhibit
Richardson’s Declaration provides facts in support of the Secretary’s
conclusion that the complaint was not frivolously brought:
1. At all relevant times, Civil, LLC,
(“Civil”) was a Limited Liability corporation and is a “person” as defined in §
3(f) of the Mine Act.
2. Applicant was employed as an equipment
operator and truck driver at Civil, LLC, and therefore, was a “miner” within
the meaning of § 3(g) of the Mine Act.
3. Applicant was employed at the mine
for approximately three months, from January 2022 until he was discharged from
his employment on March 25, 2022.
4. On April 7, 2022, Cafego filed a
discrimination complaint with MSHA for being fired on March 25, 2022.
5. Applicant alleges that he was fired
because he engaged in protected activities.
6. Applicant alleges that he
complained to management about the condition of the equipment that he was
assigned to operate on numerous occasions prior to his being discharged. For
instance, Mr. Cafego complained to management repeatedly during his employment
of an anti-freeze leak and lack of air conditioning in the truck he was
assigned to operate, which required him to operate the truck with the windows
open and exposed him to excessive amounts of dust being generated at the
7. The investigation into Cafego’s
complaint is ongoing. To this point, I have interviewed several employees and
management personnel at the mine. Employees and management corroborated that
Cafego complained about the condition of the equipment on numerous occasions.
Management personnel admitted that they were aware of Cafego’s complaints.
Management personnel stated that the reason Mr. Cafego was discharged was in
part because he complained too much.
Dec. of Russell
Richardson, April 28, 2022 (Ex. “B” to App. For Temp. Reinst.)
facts provided in support of the agency’s decision, if true, would establish
jurisdiction, a timely complaint of discrimination, and that Complainant
engaged in protected activity and suffered an adverse action close in time to
the protected activity, under circumstances that provide a reasonable cause to
believe that there was a causal nexus between his participation in an MSHA
investigation and his termination.
this stage, the facts alleged by the Secretary are undisputed. Therefore, I
find that the complaint for discrimination has not been frivolously brought,
and that Complainant Frank Cafego is entitled to Temporary Reinstatement under
the provisions of Section 105(c) of the Act.
It is hereby ORDERED that Frank Cafego be immediately
TEMPORARILY REINSTATED to the position he held on the date of his
discharge from Civil, LLC, or a comparable position within the same commuting
area and at the same rate of pay and benefits he received prior to his
This Order SHALL remain in effect until such time as
there is a final determination in this matter by hearing and decision, approval
of settlement, or other order of this court or the Commission.
I retain jurisdiction over this temporary
reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary shall
provide a report on the status of the underlying discrimination complaint as
soon as possible.
John Kent Lewis
Cole Quintrell, Superintendent, 799 Highway 3459, Harlan,
KY, 40831 (email@example.com)
Andrea M. Milyko, Esq., Office of the Solicitor, U.S.
Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202 (firstname.lastname@example.org)
Frank Cafego, P.O. Box 293, Kincaid, WV 25119 (email@example.com)