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 RYAN S. LEMLEY,
MONONGALIA COUNTY COAL
Docket No. PENN 2021-0087
MSHA Case No.: MORG-CD-2021-05
Mine: Monongalia County Mine
Mine ID: 46-01968
3. Complainant was employed at the Mine for approximately seven years, from 2014 until MCCR discharged him from employment on April 19, 2021.
4. On April 21, 2021, Complainant filed a discrimination complaint alleging that MCCR discharged him on April 19, 2021 in response to Complainant engaging in protected activity.
5. Complainant served on the Mine safety committee from June of 2016 through June of 2018, and or four months, Complainant held a belt examiner certification. During these and other times, and while conducting belt examinations, he discovered and reported safety issues. On several occasions, he filled out an entire page in an examination book with safety concerns and hazards. In several instances, he filed complaints with MSHA under section 103(g) of the Mine Act.
6. During his employment at the Mine, Complainant frequently accompanied federal and state mine inspectors as a Miners’ Representative during their inspections. During one such examination by a state inspector, Complainant pointed out an area of inadequate roof support for which the inspector issued the Mine a citation. On another occasion, Complainant advised an MSHA inspector that an emergency sled was not in the required location with the required equipment, and the MSHA inspector issued a citation to the Mine.
7. Complainant observed a “hot trolley hanger” in the Mine to which someone had run a hose to spray water to keep it cool. If the water was turned off for more than 30 seconds, the hanger would start smoking and the plates in the top would turn red. Complainant noted that the Mine did not take any other steps to abate this obvious condition during the day shift and afternoon shift, and so he called the dispatcher to contact the UMWA and let them know of the situation. Following this report, the UMWA and MCCR worked out a suitable solution to address the hot hanger.
8. Complainant reported that MCCR engaged in a years-long pattern of harassing him due to his safety reporting and cooperation with government inspectors.
9. In an August 14, 2018 letter from the late Bob Murray to UMWA President, Murray identified Complainant as one of several out of control individuals at Murray Energy owned mines who used “constant safety allegations and 103(g) complaints” to “harass [the] company and its management.”
10. Complainant was generally known by MCCR as a miner that would cooperate with government inspectors. Following a number of anonymous 103(g) complaints called in to MSHA, management began referring to Lemley as “‘G’ Lemley.”
11. MCCR raised false allegations against Complainant for allegedly destroying a contractor’s belt equipment while working underground at the mine. Complainant was subsequently written up for poor work performance and suspended on the grounds that he allegedly failed to report an area of unsupported roof for which the Mine was cited by a state inspector. Complainant maintains that he, in fact, reported the unsupported roof to the inspector. The suspension eventually proceeded to arbitration, and Complainant was restored to his position with back pay.
12. During a belt move in which Complainant reported several safety issues, a foreman encouraged Complainant to ignore the safety concerns. Complainant’s work was impeded and slowed due to the safety concerns, but he was able to complete the belt move. The following day, a foreman told Complainant that the Assistant Superintendent wanted to write Complainant up for poor work performance, impeding production, and not following safety protocols. However, the foreman purportedly refused to do so because Complainant’s safety concerns were accurate.
13. After Complainant’s report of the mis-located emergency sled to an MSHA inspector, a MCCR safety representative told him he would no longer be able to serve as a Miners’ Representative on inspections with him if Complainant was going to continue to point out safety concerns to inspectors.
14. Following an anonymous 103(g) complaint about non-compliant hardhat liners that MSHA substantiated and MCCR believed Complainant called in, a member of the Safety Department approached him daily for the next two weeks to ensure he had the proper hard hat liner.
15. Complainant also reported that MCCR assigned him to an especially hostile foreman who repeatedly threatened him and attempted to write Complainant up for taking equipment out of service, purposefully making mistakes, and creating a hostile workplace. Complainant also complains of being assigned to several less desirable positions during that time.
16. On March 20, 2021, Complainant reported five 103(g) safety complaints to MSHA which MSHA investigated on March 22 and issued citations substantiating all five complaints. While underground, Complainant asked a foreman, “What’s new?” to which the foreman responded, “Other than you calling in all these complaints?” The foreman informed Complainant that MCCR was not happy, and he showed Complainant the list of violations. Complainant stated that the complaints must have been legitimate because of the citations issued.
17. The Mine’s attendance policy distinguishes between personal and sick days, and provides for multiple levels of discipline for violations.
18. On April 2, 2021, the UMWA and MCCR reached a local agreement to use the miners’ second week of vacation this year as personal days, due to the mine ceasing operations and permanently closing late in 2021.
19. On April 9 and 10, 2021, Complainant missed work, apparently without management consent and without proving an illness with a doctor’s note.
20. On April 16, 2021, Complainant suffered an adverse action when MCCR suspended him with the intent to discharge him under the attendance policy. Complainant received no warning before his suspension and discharge, and he was not afforded an opportunity to use personal days or a combination of a personal day and a sick day for his two absences.
21. On April 19, 2021, Complainant suffered an adverse action when MCCR discharged him from his employment at the Mine.
22. MCCR treated Complainant more harshly than another similarly situated miner who has never called in a 103(g) complaint and has never been accused of doing so. In March 2021, that miner missed work, and attempted to use a personal day, but he did not have any personal days left to use. The miner had previously received a warning for missing work. As this was an additional unexcused absence within a 180 day time frame, MCCR issued a letter suspending the miner for two days. Subsequently, the miner was again absent from work without an excuse. Yet, although MCCR initially moved to discharge him, it did not do so. Instead, MCCR issued him a second suspension and allowed him miner to use a personal day for his March absence. In addition, the miner had previously violated the attendance policies more than once.
23. Based on my investigation to this date, I have concluded that there is reasonable cause to believe that MCCR discharged Ryan S. Lemley because he engaged in protected activities. MCCR had knowledge of Complainant’s protected activities, it demonstrated animus towards Complainant regarding his protected activities, it disparately treated Complainant, and there was a short time between the latest protected activity and the adverse action. Thus, there is reason to believe that MCCR’s decision to discharge Complainant was based, at least in part, upon his protected activity, and I have concluded that the complaint filed by Ryan S. Lemley is not frivolous.
Distribution (Via Certified Mail & E-mail)
Ryan M. Kooi, Esq., U.S. Dept. of Labor, Office of Regional Solicitor, 1835 Market St., Mailstop SOL/22, Philadelphia, PA 19103-2968, Kooi.email@example.com
Timothy J. Baker, Esq., UMWA, 18354 Quantico Gateway Dr., Suite 200, Triangle, VA 22172, firstname.lastname@example.org
Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart PC, One PPG Place, Suite 1900, Pittsburgh, PA 15222, Philip.email@example.com
 The Act’s legislative history suggests that a complaint is not frivolously brought if it “appears to have merit.” 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). In addition to Congress’ “appears to have merit” standard, the Commission and the courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990).
 “Substantial evidence” means “such 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)).