FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Respondent proffered three exhibits. Respondent Exhibit E (“RX-E”) a chart showing the pipefitters working for Respondent since the project began. RX-F is a workforce chart for all trades. RX-G is a chronology demonstrating when employees were hired. Following a motion in limine, I ruled that this hearing would focus on the issue of whether Rodriguez claim was frivolously brought and limited evidence related to possible tolling of the re-instatement. As a result, Respondent’s exhibits were not included in the record.

Summary of Testimony

Direct Examination of Dustin Rodriguez:

Rodriguez was a union journeyman pipefitter and had been a pipefitter since August of 2004. (Tr. 11). His work history was mostly heavy industrial maintenance. (Tr. 12). In his career, Rodriguez worked around chemicals. (Tr. 12). He received training about hazards presented by working around different chemicals and MSHA safety training. (Tr. 12). Rodriguez was a member of the San Bernardino and Riverside County Plumbers & Pipefitters Local 364. (Tr. 12). He was a journeyman. (Tr. 12). He also worked as a supervisor pipefitter. (Tr. 12).

Rodriguez was employed by Respondent from December 5, 2012 until January 25, 2013. (Tr. 12-13). He learned about the job from Local 364’s manpower hotline. (Tr. 13). He had never worked for Respondent before. (Tr. 13). Around 12 other union members were also hired. (Tr. 13). His title was journeyman pipefitter. (Tr. 13). Training lasted a week or a week and a half. (Tr. 14).

As soon as he completed training with Respondent, Rodriguez became a foreman. (Tr. 14). Rodriguez learned he was going to be foreman from Mark Cartwright (“Cartwright”) and the union steward, Todd Schaeffer (“Schaeffer”). (Tr. 14). Rodriguez expressed interest in being a foreman to Cartwright. (Tr. 15). He told Cartwright that he wanted to be considered as a foreman and that he had just a left a foreman’s position and felt confident that he could do a good job as foreman for him. (Tr. 15). Being a foreman increased his pay rate and it did not go back down. (Tr. 15). Cartwright did not tell him why he as being made foreman. (Tr. 14). Rodriguez considered it a promotion. (Tr. 14).

His duties were to instruct men on the jobs, tasks, and hazards that could occur during the job. (Tr. 14). He also got safety equipment and material for the men. (Tr. 14). He performed lay out and blueprint interpretation with the other contractors. (Tr. 14). The other contractors were Kelly Brown & Root (“KBR”). (Tr. 14). Other duties included signing paperwork; making sure everyone was following safety, company procedure, and mine procedure; and evaluating workers’ production and work ethic. (Tr. 15).

Rodriguez worked on different projects for Respondent including the Phoenix project run by KBR. (Tr. 15-16). He was foreman the whole length of that project, about a month. (Tr. 16). After that he changed project to work on maintenance. (Tr. 16).

When he worked on the KBR project he observed conditions that raised safety concerns. (Tr. 16-17). Specifically, he was instructed to tell the employees he supervised to pull a 20-foot length of two-inch pipe up by rope while standing 20 feet high on an I-beam. (Tr. 17). He deemed this unsafe. (Tr. 17). Rodriguez informed Cartwright and Ed Berube (“Berube”), a foreman, and they told him that he did a good job keeping his men safe. (Tr. 17, 24). They told him to keep doing what he was doing. (Tr. 17). He raised other safety concerns with Respondent on the KBR project almost daily. (Tr. 17).

On January 24 Rodriguez went to work and Cartwright told him there were going to walk down to a new job that had just been awarded that was supposed to last a month. (Tr. 20). Rodriguez and Cartwright walked alone to the new job. (Tr. 20). Cartwright told him what the point of connection and termination would be for the job, what type of piping it would be, what type of task training they would need to have, where the material was stationed, and who Rodriguez was going to direct for the job. (Tr. 20-21). He gave instruction on how to instruct other miners. (Tr. 21). The walk-through lasted about an hour or an hour and a half. (Tr. 21). After the walkthrough Cartwright told Rodriguez to get the men who would be working with him on the new project and show them what they would be doing. (Tr. 21). Cartwright said he would be back to train them on the equipment and machinery that would be used. (Tr. 21-22). There were four miners. (Tr. 22). Cartwright returned to train them at about 10:30. (Tr. 22). After task training, Cartwright left. (Tr. 22). Rodriguez began working on the project, even informing Cartwright of a mistake that had been made in planning. (Tr. 22-24)

While they were working, miners told Rodriguez that Cartwright wanted to see him in the office about another job. (Tr. 23-24). He went to the office and Cartwright told him to meet with Jon Way (“Way”), an apprentice pipefitter, and Berube to learn about the other project. (Tr. 24).

Rodriguez went outside and found Berube and Way getting personal protective equipment (“PPE”) for the job they were going to do. (Tr. 24-25). He asked why the PPE was required. (Tr. 25). Berube told them they would be working at a part of the mine used for sodium carbonate (also known as “soda ash”) storage. (Tr. 25). Rodriguez had never worked around it and did not know how it was used in the mining process. (Tr. 25). Berube said they would need rubber gloves, a rain suit, and a face shield. (Tr. 25). Rodriguez asked if they needed leather boots because in his experience if leather gloves were not effective then leather boots would not hold up either. (Tr. 26). Berube told him it was up to his discretion. (Tr. 26). Rodriguez asked about Berube’s experience with sodium carbonate and what to do in case of exposure. (Tr. 26). Berube said that he was not experienced and that it was just baking soda that could wash off with water. (Tr. 26).

Rodriguez, Berube, and Way then went to the job site. (Tr. 26-27). As they walked Berube told Rodriguez what they would be doing. (Tr. 27). Specifically, they would be unclogging a sodium carbonate line that came directly off the sodium carbonate tank. (Tr. 27). When they arrived in the job site where the tank was located Rodriguez noticed a placard on the tank with a “2” in the blue area meaning there was a health hazard. (Tr. 27). As a result, he asked for to see the job safety analysis (“JSA”). (Tr. 27). A JSA is a pre-task analysis that identifies job hazards and how to eliminate them. (Tr. 27). He had not reviewed the JSA before he arrived. (Tr. 27-28).

Way retrieved the JSA and it had already been signed by Berube and Way. (Tr. 28). The JSA said to review the Material Data Safety Sheet (“MSDS’) to eliminate any hazards. (Tr. 28). Neither Berube nor Way had reviewed the MSDS. (Tr. 28). Rodriguez asked for a copy of the MSDS before he started working. (Tr. 28). Berube said, “Are you serious? You want an MSDS?” (Tr. 28). His tone was disbelieving; he said it was just baking soda. (Tr. 28-29). Rodriguez knew that it was his right to obtain an MSDS. (Tr. 29). After Berube made his comment, Rodriguez continued to tell him that he wanted the MSDS. (Tr. 29). He told Berube that he did not believe he was knowledgeable about the PPEs because of his comments regarding the boots. (Tr. 29). Also, Berube did not know what to do in case over over-exposure. (Tr. 29). As they were unclogging a 20-30 foot four-inch line of sodium carbonate, there was a chance of getting a large amount of the sodium carbonate on his body. (Tr. 29-30). Neither Berube nor Way knew what to do in the event of an overexposure. (Tr. 30). Rodriguez said he did not want to wait until after an exposure to get the MSDS. (Tr. 29).

Rodriguez reiterated that he wanted the MSDS and Berube said he would get it. (Tr. 30). Rodriguez explained to Way his reasoning behind requesting the MSDS. (Tr. 30). He did not want to get exposure to their eyes and then have to search for the MSDS after they had already been exposed. (Tr. 30). They wanted to know what to do before it happened. (Tr. 30). Way agreed. (Tr. 30). Rodriguez told Way not to do a task until it was clear what to do in case of exposure and what PPE was needed. (Tr. 30).

Berube did not obtain an MSDS and left the area. (Tr. 30-31). Rodriguez eventually obtained an MSDS for sodium carbonate. (Tr. 31-32). Forty-five minutes after his request to Berube he called Eichleay safety group, a group that conducted the safety training on site, and asked the safety administrator for an over-the-phone MSDS. (Tr. 32). He requested the PPE, the way to treat over exposures, the risks working with it, both acute and long term, and whether they should wear leather boots with the rubber gloves. (Tr. 32).

Rodriguez and Way began to get their tools and materials in place where they would need it. (Tr. 31). A scaffold was built in front of the sodium carbonate tank and it was freestanding. (Tr. 33). Their task would require standing on the scaffolding. (Tr. 33). Rodriguez observed a yellow tag on the scaffold. (Tr. 31). That means that there must be a 100 percent tie-off. (Tr. 31). There was a tag system on scaffolding. (Tr. 33). A green tag means it is safe to be on the scaffold without fall protection. (Tr. 33). A yellow tag means that there is some danger on the scaffold creating a chance for a fall so people must be 100% tied off. (Tr. 33-34). Tie off means fall protection to present falling off the scaffold, the best method is overhead tie-off. (Tr. 34).

On the scaffold at issue there was no way to tie off. (Tr. 34). The scaffold itself was not tied off, it was not anchored to the structure. (Tr. 34). Therefore, it was not possible to tie off to the scaffold itself. (Tr. 34). There was nothing above them to tie off on. (Tr. 34). Vertical scaffold poles must have what is called a rosette to tie off on. (Tr. 34). It is a fixed anchorage point to tie a lanyard to. (Tr. 34).

When Rodriguez saw there was no tie-off point he contacted Molycorp and asked if there was a reason why they could not make it a green scaffold. (Tr. 35). He observed that there was no danger from the scaffold, the rails were in place and the holes were covered. (Tr. 35). Maycorp called the scaffold company and told Rodriguez it would remain yellow. (Tr. 35).

Rodriguez told Respondent, specifically by contacting Berube over the phone, about his concerns with the tie-off. (Tr. 35-36). He told Berube that they had an issue with the scaffolding tie-off, specifically a yellow scaffold with no tie-off point. (Tr. 36). Berbue told him to tie of on the scaffold poles, the railing of the scaffold. (Tr. 36). Rodriguez told him that he needed to come down and look at the area. (Tr. 36). Berube did so. (Tr. 36). Rodriguez showed him the yellow tag and that there was no fixed anchor point for a tie-off. (Tr. 36). He said they needed the scaffold builders to come out and correct the scaffolding, either by making it green or adding a tie-off point. (Tr. 36).

Berube said it was okay to tie off on the scaffold poles and that they needed to get the job done that day. (Tr. 37). Rodriguez told him that it was not okay to tie off on the scaffold poles and that he would not do so. (Tr. 37). He said it was against everything they had been taught in their safety and MSHA training. (Tr. 37). Rodriguez said that he and Way would be the ones fined if MSHA saw them, not Berube. (Tr. 37). Berube said it was “okay for this job only.” (Tr. 37). Rodriguez said he contacted MSHA and MSHA said it was definitely not okay to tie off on the scaffold. (Tr. 37). Berube told him that they had to get the job done that day. (Tr. 37). Rodriguez said that they could get it done in a day if the safety was in place but they would not do it if it was not safe. (Tr. 37-38).

Berube then instructed Way to work on the scaffold, who did so. (Tr. 38). Rodriguez said that Way did not have an approved tie off, instead he was tying off on the rigging choker. (Tr. 38). MSHA does not allow miners to tie off on rigging, tie offs must be on something specifically designed for fall protection. (Tr. 38). Rodriguez told this to Berube and Way. (Tr. 38). Way then climbed up the scaffold and tied off to a horizontal scaffold rail. (Tr. 38). Rodriguez instructed him to tie off on a vertical rail because it would be safer. (Tr. 38). Rodriguez believed that it was wrong, but he felt it was safer that way. (Tr. 38). He also got up on the scaffold and helped because he was not going to let the apprentice get hurt. (Tr. 38-39).

Rodriguez worked on the task assigned. (Tr. 39). It started at 2:00 p.m. and took about an hour. (Tr. 39). Then Berube called Rodriguez and told him that he could leave at the end of the shift. (Tr. 39). Rodriguez said he would not leave Way by himself and Berube agreed to relieve him. (Tr. 39). Rodriguez waited for Berube to get there. (Tr. 39). In Rodriguez’s experience as a pipefitter, it is not normal for one foreman to finish another foreman’s task. (Tr. 39).

Rodriquez would describe Berube’s attitude as a blatant disregard for his safety concerns. (Tr. 40). Berube almost seemed in disbelief that he would ask for an MSDS or a tie off for a scaffold. (Tr. 40). While he worked for Respondent he heard of Berube acting similarly with respect to other miners’ safety concerns. (Tr. 40). Specifically, another miner hired at the same time as Rodriguez was instructed to go underneath a trailer that was skirted to the ground. (Tr. 40-41). There was only one way in or out. (Tr. 41). The miner asked for an oxygen monitor to see if there was an oxygen deficiency because it was a confined space and chemicals in the ground could have seeped up. (Tr. 41). He was told it was not a confined space and told to proceed with his job. (Tr. 41). The miner argued that it was not meant for permanent occupancy, the criteria to determine a confined space. (Tr. 41). Berube said it was not a confined space and told him to go. (Tr. 41).

On January 25 he arrived at work at 5:00 a.m. (Tr. 20). That morning everyone went to the superintendent’s trailer to get their job assignments for the day. (Tr. 20). Everyone except for Rodriguez and one other miner got assignments. (Tr. 20). That miner was the other miner who had complained about safety. (Tr. 41). Rodriguez asked Cartwright and Berube if they had a job for them and they said they were looking. (Tr. 41-42). Then Rodriguez and the other miner were left standing there. (Tr. 42). After they left, Rodriguez and the other miner cleaned the area for about and hour and a half. (Tr. 42). The other miner said he thought they were going to get laid off. (Tr. 43). Rodriguez said he did not think so because they had been telling him the plans for the mine. (Tr. 43). The other miner thought he was getting laid off because of the confined space issue. (Tr. 43).

After that time, Cartwright and Berube arrived and Rodriguez asked if they had any work because they were out of things to do in the storage area. (Tr. 42). Cartwright said he was looking for something and went into the office. (Tr. 42). Rodriguez followed Cartwright into the office and asked if he was being punished for bringing up safety concerns the day before. (Tr. 42-43). Cartwright and Berube made short, evading comments. (Tr. 43). Cartwright said they were not being punished, he said he was glad they brought up safety concerns. (Tr. 43). Rodriguez said he felt like he was being punished. (Tr. 43-44). No one would talk with them or acknowledge they were there. (Tr. 44). They just stood there while everyone went about there work, which was abnormal. (Tr. 44). Things had changed after the 24^th. (Tr. 44).

Then Cartwright said that Rodriguez was being laid off. (Tr. 44). Rodriguez asked why and Cartwright said he had been caught standing around on two projects. (Tr. 44). Rodriguez asked which projects. (Tr. 44). He noted that he participated in completing tasks by drawing blueprints for the projects to have the pre-fab built and that he lined everyone up to perform the tasks needed in a safe and productive manner. (Tr. 44-45).

Cartwright said that Molycorp had complained about his performance on a steam job the week before and the job they had walked down the morning before. (Tr. 45). Rodriguez told Cartwright that they both knew that was not the reason for the lay-off. (Tr. 45). Cartwright did not respond. (Tr. 45). Rodriguez testified that they had praised and complimented his work before the 24^th and only after that day was the issue of standing around raised. (Tr. 45). Cartwright would not tell him who at Molycorp had brought the complaint. (Tr. 45).

Rodriguez went outside and called his union steward. (Tr. 45-46). He asked if the steward was aware that he was going to be laid off. (Tr. 46). The steward was not aware and he said he would go down there immediately and find out what was going on. (Tr. 46). In Rodriguez’s experience as a union pipefitter, a union steward is usually involved before someone is let go. (Tr. 46). The steward will contest the termination if it is not legitimate. (Tr. 46). The steward was not involved before Cartwright told him he would be let go on the 25^th. (Tr. 46).

The union steward arrived. (Tr. 46). He told the steward that he knew it was not the reason and the steward had worked under him on the projects where he was accused of standing around. (Tr. 46-47). He told the steward it was because of his safety complaints. (Tr. 47). The steward went into the office and came out and confirmed the lay-off. (Tr. 47). Further he said it would be a bad lay-off so they would have to stand outside of the property to get their checks. (Tr. 47). A bad lay-off does not involve a reduction in force, it has to do with performance or attendance. (Tr. 47). There were negative comments about his performance on the lay-off. (Tr. 47). Respondent provided Rodriguez with his last check on the 25^th. (Tr. 48). It was at the foreman’s pay rate. (Tr. 48). Cartwright did not give Rodriguez any paperwork in his office. (Tr. 48).

Afterwards, he and the other miners drove to the union hall. (Tr. 48). On the way he called MSHA and asked about filing a complaint because he felt he was wrongfully terminated for bringing up safety over production. (Tr. 48). Rodriguez believed he was let go because he called MSHA regarding the scaffold tie-off. (Tr.48-49). He believed that Berube thought he was questioning his authority. (Tr. 49). Rodriguez identified the discrimination complaint that MSHA mailed to him to file (GX-1). (Tr. 18-19).

The entire time he worked for Respondent Rodriguez received no verbal or written disciplinary actions or warnings. (Tr. 49). No one told him that his performance was deficient, that he was unwilling to work, that he stood around on the job, that he was unhelpful, or that he had a bad attitude. (Tr. 49). Before he was terminated, no one from his union, including the steward, ever said his work was deficient. (Tr. 49-50). Both Cartwright and Berube told him that his performance was good. (Tr. 50). When they worked on the KBR project Berube said he did not know how Rodriguez dealt with the KBR management. (Tr. 50). Cartwright told him that he was doing a good job. (Tr. 50). He told Cartwright he would be more than happy to work in that area because he lived in Las Vegas. (Tr. 50-51).

Another person, whose name Rodriguez could not recall, a superintendent on the maintenance side, heard about what was going with KBR. (Tr. 51). That man said that he wanted to retire in nine years and turn the work over to “you guys.” (Tr. 51). The workers under him also praised him for keeping his cool and standing up to protect them. (Tr. 51-52). They appreciated the way that he kept up morale and would address their concerns. (Tr. 52). On the whole he got along with the other miners. (Tr. 52). Before he was terminated he had no reason to believe that Respondent was dissatisfied. (Tr. 52).

Cross Examination of Rodriguez:

When Rodriguez was hired, he was hired to work on a maintenance project. (Tr. 53). However, he did not work on that maintenance project initially. (Tr. 53). Instead he worked on the KBR construction project. (Tr. 53). The duration of the project was not given. (Tr. 53). Rodriguez believed he would be working on the maintenance project because the call for the union job line said there were 12 long-term maintenance positions for people living in Las Vegas. (Tr. 54). People were required to be from Las Vegas as it was about two hours closer than San Bernardino or Riverside. (Tr. 54).

Rodriguez started on the KBR project as a foreman. (Tr. 55). He got the position because he asked Cartwright to consider him for it. (Tr. 56). He had been a foreman in the past. (Tr. 56). Cartwright said he would consider it. (Tr. 56). He was hired as journeyman but after training was made a foreman. (Tr. 56-57). He was paid as a journeyman for the duration of training and then compensated as a foreman. (Tr. 57).

Rodriguez noted several safety issues on the KBR project including the pipe and I-beam issue. (Tr. 57). He advised Cartwright about this issue. (Tr. 57). Cartwright said he appreciated Rodriguez raising the issue. (Tr. 58). He also reported KBR employees using conduit as a means to tie off for fall protection above where Rodriguez’s men were working. (Tr. 58). He contacted KBR’s safety department. (Tr. 58). If the KBR workers fell they would have fallen on Rodriquez’s men. (Tr. 58). When Rodriguez reported this, Cartwright thanked him and said he was doing a good job and they did not want KBR employees to hurt anyone. (Tr. 58-59). While working on the KBR project, he never felt discriminated against for raising safety concerns. (Tr. 59).

Respondent’s role in the KBR project ended on January 15, 2013, a month and a half after it started. (Tr. 59). Everyone who worked for Respondent on that project except for Rodriguez and two others were laid off when the KBR project ended. (Tr. 59-60). Rodriguez was not laid off because Cartwright said that he wanted one pipefitter and one welder to stay. (Tr. 60). The other workers agreed that because of the work he had done and how he had stood up to KBR he should be the one to stay. (Tr. 60). Two other workers ended up staying. (Tr. 60). Respondent kept Rodriguez on after the KBR project and after he raised safety concerns. (Tr. 61). He raised those concerns to both Respondent and KBR. (Tr. 61).

After the KBR job ended, his duties included lining up the men to do the tasks assigned by Cartwright. (Tr. 61). That was his role as a foreman. (Tr. 61). He was still a foreman on the maintenance project after the KBR project ended. (Tr. 62). The other foreman was Berube. (Tr. 62). It was normal on a project this small, with 12 employees, to have more than one foreman. (Tr. 62).

Cartwright told him that he would have to bump his pay down temporarily on the maintenance project while they secured more work. (Tr. 62). However, he said it would be better in the long run because Rodriguez would be running the maintenance for Respondent. (Tr. 62). Cartwright said he would try to keep him at foreman pay so he could stay a foreman but he did not know if he could. (Tr. 63). However, if they lowered the pay, it would only be while they looked for more work. (Tr. 63). Rodriguez said that it was fine and would not mind going back and working as a journeyman instead of a foreman. (Tr. 63-64). Foremen generally tell other people what to do, they do not work directly. (Tr. 64). Cartwright did not say that his pay would be lowered; he said that it might be. (Tr. 64). Cartwright would fight to keep him a foreman. (Tr. 64). Rodriguez knew that if his pay went down he would no longer be a foreman, he would be a journeyman. (Tr. 65). It is against union rules to do work without getting paid so lowering pay would automatically mean not being a foreman. (Tr. 65).

Rodriguez was on the maintenance project for a little more than two weeks after the KBR project ended. (Tr. 65). During that time Rodriguez was performing both journeyman work and “working foreman” work because that is allowed with a small crew. (Tr. 65). However, his compensation was never lowered. (Tr. 65).

Rodriguez did not recall having a conversation with Cartwright in a pick-up truck owned by Respondent about his job performance. (Tr. 65-66). He did not recall Cartwright telling him that he needed people who could work. (Tr. 66).

Rodriguez learned about the MSDS information from a verbal description given by Eichleay safety. (Tr. 66). He asked Berube for a copy and Berube said he was going to go get one. (Tr. 66-67). However, Berube never gave him one. (Tr. 67). He did eventually learn the information about soda ash. (Tr. 67).

Respondent did not build the scaffold; it was built by a contractor. (Tr. 67). It was between 25 and 40 feet tall. (Tr. 67-68). The portion of the scaffold he was working on was four feet tall and had proper rails and foot boards. (Tr. 68). He did not see any safety hazards with the scaffold. (Tr. 68). He saw that it had a yellow tag so that is why he wanted more information. (Tr. 68). After the conversation with Berube both Rodriguez and Way performed work on the scaffold and tied off to a vertical piece of scaffold. (Tr. 68).

Rodriguez was terminated on January 25, 2013. (Tr. 68). Cartwright told him he was laid off for standing around on different projects. (Tr. 68-69). Cartwright told Rodriguez at an earlier date that when he had to terminate people he did not give good lay-offs because it had “come back to bite him in the butt” in the past. (Tr. 69). Rodriguez did not know if Cartwright gave other kinds of lay-offs. (Tr. 69-70). Rodriguez believed that his lay-off was different than that given to others. (Tr. 70). The other lay-offs were “bad” because there was just cause. (Tr. 70). Rodriguez did not believe there was just cause in his situation. (Tr. 70).

Rodriguez did not receive a written termination slip. (Tr. 70-71). There might have been writing on his check. (Tr. 71). There was a box marked that said unacceptable work habit or work ethic. (Tr. 71). It was not a reduction in force lay-off, not a clean lay-off. (Tr. 71). Since the lay-off Rodriguez has stayed in contact with other employees on the maintenance project. (Tr. 71). None of those employees are still employed on the project. (Tr. 71). Some quit and some were laid off. (Tr. 72).

Court’s Examination of Rodriguez:

Rodriguez learned from the telephone call that sodium carbonate came in a powder form and they would need to wear a respirator. (Tr. 73). It was water soluble and if it got on their skin they needed to wash for 15 minutes. (Tr. 73). If it got in their eyes they needed to flush for 15 minutes and seek medical attention. (Tr. 73). He believed that the PPE was face shield, gloves, respirator (if in powder form); boots, and protective equipment to cover the clothes. (Tr. 73-74).

Re-Direct Examination of Rodriguez:

Rodriguez considered this to be an unfair lay-off because he felt it was punishment for standing up to Berube on January 24. (Tr. 74).

Direct Examination of Mark Cartwright:

Cartwright was a piping supervisor. (Tr. 75). He distributed work and made sure it was done safely. (Tr. 75). He had worked for Respondent for six years. (Tr. 75). As a piping supervisor he was involved in hiring and staffing projects. (Tr. 76). He requested men when they were needed and laid off or fired employees as needed. (Tr. 76). The requests were sent to the local union hall. (Tr. 76). Cartwright is from Michigan and Respondent has an office there. (Tr. 76).

Cartwright first became involved at Molycorp Mine when he went out to the site in August 2012. (Tr. 76-77). He went there to perform maintenance on the combined heating and power plant. (Tr. 77). This maintenance work would include changing water piping, valves, pumps, agitators, and doing work on the scrubber system. (Tr. 77). The people performing the work would be pipefitters and millers. (Tr. 77). “Dennis” from Molycorp provided Cartwright with the specifications for people to hire. (Tr. 77-78). Dennis was a top manger at Molycorp. (Tr. 78). Dennis and Cartwright discussed how many men would be needed and what work they would be doing. (Tr.78). Dennis liked the employees from Michigan and was impressed with their work. (Tr. 78).

Cartwright was involved in hiring Rodriguez on or about December 13, 2012. (Tr. 79-80). Rodriguez and the other local union employees were hired to work on a KBR project under Respondent. (Tr. 80). Cartwright does not know why Rodriguez believed he would be working maintenance. (Tr. 80). The KBR project entailed working on the salt recovery unit. (Tr. 80). Respondent’s role was to install piping and supports for KBR. (Tr. 80-81). Cartwright made the call to the union hall to hire Rodriguez and the other union workers. (Tr. 81). There was no conversation about what role Rodriguez would have until he arrived at the project. (Tr. 81).

When he arrived Rodriguez asked if Cartwright needed a foreman and asked to be considered. (Tr. 81). Cartwright asked around to other employees about him, including the steward, but no one really knew him. (Tr. 81-82). Cartwright decided to “take a chance” and hire Rodriguez as a foreman. (Tr. 82).

Cartwright thought Rodriguez did a good job on the KBR project keeping the men safe and dealing with KBR management. (Tr. 82). KBR management was difficult to deal with. (Tr. 82). They screamed and hollered and wanted projection where they could not supply the pipe supports. (Tr. 82). Cartwright did not work closely with Rodriguez but he seemed to stand up under the pressure. (Tr. 82). Cartwright did not witness Rodriguez loafing or not doing work on that project. (Tr. 82-83). However, a general foreman named Paul Langford (“Langford”) was not impressed with Rodriguez’s work. (Tr. 83). Langford said that he found ways of not completing his work rather than finding ways to complete it and that he never turned in paperwork. (Tr. 83). However, that conversation was two weeks before the hearing, not while the project was ongoing. (Tr. 83).

The KBR project eventually ended. (Tr. 83-84). Cartwright did not know why it ended, KBR just told Respondent it no longer needed its services. (Tr. 84). Cartwright laid off the employees and kept a welder and fitter. (Tr. 84). Cartwright was going to keep Tony Van Tassel and Schaeffer, but Schaeffer left. (Tr. 84). As a result, Cartwright let Rodriguez come over from the KBR project. (Tr. 84). Cartwright told him that he would get the rest of the week on foreman’s pay but then get cut back to pipefitter’s wages. (Tr. 84-85). He told Rodriguez he would be supervising people for three days on a steam line and getting foreman’s wages during that time. (Tr. 85). Cartwright told Rodriguez that in the future, when there were 20 or 30 guys, they would need a foreman and that his pay might go back up. (Tr. 85-86). Cartwright said he would see what he could do, that you never know what the work would be from week to week, but that he could not justify foreman’s wages after the first week. (Tr. 86). He told him that on Friday, January 18, 2013. (Tr. 86).

Rodriguez seemed okay with the decrease in wages. (Tr. 87). However, on the following Monday he got complaints from people working with him that he was not helping out. (Tr. 87). Cartwright also saw him on Tuesday, January 22, standing around while two employees were putting relief valves on a boiler. (Tr. 87-88). There was another one to be installed and Rodriguez was qualified to install it. (Tr. 87). Cartwright did not witness anything else personally but four people working with him said he was not doing his work. (Tr. 88). He spoke with Mark Lenards, Jenna Skradski, and Tony Van Tassel. (Tr. 89). When he terminated Rodriguez he spoke with Schaeffer. (Tr. 89). Schaeffer said he noticed the change in Rodriguez as well. (Tr. 89).

Cartwright decided to terminate Rodriguez on the morning of Thursday, January 24. (Tr. 89). They were on the other job and Cartwright saw three guys sitting in a van not working. (Tr. 89). On Tuesday, he spoke with Rodriguez to say that they needed people to work not just supervise. (Tr. 89). The decision to terminate was made before Rodriguez asked for the MSDS sheet. (Tr. 89-90). Cartwright knew that he had to lay-off two people that week because the steam project was done and he selected Rodriguez. (Tr. 90). Cartwright was not aware that Rodriguez had made a MSDS request. (Tr. 90). He was also not aware of the complaints Rodriguez made about the scaffolding. (Tr. 90). He learned about the MSDS issue from Berube on Thursday night. (Tr. 90). He did not hear about the scaffolding. (Tr. 91).

Cartwright conceded that Respondent had obtained an additional week and a half of work. (Tr. 91). Long-term work would not be on-line until May or June, although that was pushed back until August by the time of the hearing. (Tr. 91).

On January 25 Cartwright told Rodriguez that he was going to lay him off. (Tr. 91). Rodriguez asked if he was being punished for bringing up safety issue and Cartwright said “of course not.” (Tr. 91-92). Cartwright told Rodriguez that he was being laid off that day for standing around, not participating, and because of complaints from other workers. (Tr. 92). Cartwright told him it would be checked off for poor work habits; he does not give good lay-offs if there is reason. (Tr. 92). He puts the reason for the lay-off. (Tr. 92). He used to just give a reduction in force but he no longer does that. (Tr. 92). Rodriguez’s lay-off was no different that anyone else’s in terms of giving a reason. (Tr. 92). Respondent would not allow Cartwright to work for the company if he laid people off for bringing up safety issues. (Tr. 92-93). The other employee laid off was Troy Johnson. (Tr. 93). He was terminated for poor work habits. (Tr. 93). Cartwright was not aware of any safety complaints made by Johnson. (Tr. 93).

Cross Examination of Cartwright:

Cartwright did not notice any qualities that made Rodriguez stand out to hire him as a foreman. (Tr. 94). However, Cartwright would not make just any miner a foreman. (Tr. 94). Rodriguez was local and Cartwright liked to make local people foremen. (Tr. 94).

It was Cartwright’s decision to terminate Rodriguez. (Tr. 94). The decision was made on January 24. (Tr. 94). By that evening he knew about the MSDS concern. (Tr. 94). He decided to terminate Rodriguez the next day. (Tr. 95).

Rodriguez had no written disciplinary action or write-ups in his personnel file. (Tr. 95).

Langford’s comments about Rodriguez did not play a role in the decision to terminate Rodriguez. (Tr. 95). Cartwright did not ask Langford for proof or for anything he knew that would lead him to think that Rodriguez was unimpressive. (Tr. 95).

When the KBR project ended Cartwright laid off all the people from Local 364. (Tr. 95-96). He also laid off the miners from Michigan but they were not even gone yet when he had to keep them because of other work. (Tr. 96). There were seven or eight miners from Michigan. (Tr. 96). He laid off two. (Tr. 96).

Cartwright had two conversations with Rodriguez regarding foreman’s pay. (Tr. 96). During those conversations he never discussed Rodriguez’s work performance. (Tr. 96). The second conversation regarding pay was on Monday and he started to get complaints on Tuesday or Wednesday regarding Rodriguez. (Tr. 97-97). He did not document any of these complaints. (Tr. 97).

On January 24 Rodriguez was assigned to work for Berube. (Tr. 97). Cartwright supervised Berube. (Tr. 97). On that day Berube assigned Rodriguez to work on the sodium carbonate tank. (Tr. 97-98). Cartwright does not know if Rodriguez refused to work on the tank until he got an MSDS for the sodium carbonate. (Tr. 98). Miners have the right to demand an MSDS. (Tr. 98).

Cartwright was aware that the scaffolding required a 100 percent tie-off. (Tr. 98). He learned about it when the MSHA special investigator told him about it. (Tr. 98). When Cartwright went over and looked at the scaffolding it looked like it was secured to prevent tip-over. (Tr. 98-99). However, he did not do any tests. (Tr. 99). It is not acceptable to tie off to horizontal bars. (Tr. 99). It was not Cartwright’s understanding that Rodriguez was told to tie off on a horizontal bar. (Tr. 99).

Rodriguez’s safety concerns did not delay production on the 24^th because the line was already frozen and it did not matter if it was finished that day. (Tr. 99-100).

Rodriguez worked for a little bit of time on January 25. (Tr. 97).

Part of the reason Rodriguez was fired was for lack of production. (Tr. 100). However, Cartwright did not tell anyone Rodriguez was fired for lack of production. (Tr. 100). Rodriguez never said that Cartwright knew that Cartwright’s reasons for the termination were just pretext. (Tr. 100).

Court’s Examination of Cartwright:

The normal pay day is Wednesday. (Tr. 101). Rodriguez was caught up to date on the 25^th. (Tr. 101). The last pay check was supposed to be on the foreman’s scale. (Tr. 101). Cartwright went back and checked the timesheets and it said he was a pipefitter journeyman. (Tr. 101). He sent in the hours and was e-mailed a check. (Tr. 101). His last check was to be on the pipefitter journeyman’s scale. (Tr. 101-102). It was only journeyman, not a combination of foreman and journeyman’s wages. (Tr. 102).^{^[4]}

Re-Direct Examination of Cartwright:

Cartwright knew that Rodriguez should get journeyman’s pay because they kept time sheets at the job site that reflected he should receive those wages. (Tr. 102).

Cartwright decided to terminate Cartwright on the 24^th but waited until the 25^th so that he could finish Friday and get a full week’s pay. (Tr. 103).

Direct Testimony of Berube:

Berube was employed by Respondent at Molycorp Mine as a journeyman pipefitter for maintenance. (Tr. 104). He had been there since August 13, 2012. (Tr. 104). He was involved in the KBR construction project as foreman. (Tr. 104). Rodriguez and Berube were foreman of their own crews on that project. (Tr. 104). Berube did not have an opportunity to observe Rodriguez’s work on that project. (Tr. 104-105).

When the KBR project ended Berube continued to work on the maintenance project. (Tr. 105). He still did not work closely with Rodriguez on that job as they had different projects. (Tr. 105).

Berube recalled working with Rodriguez on a soda ash project on January 24, 2013. (Tr. 105). Rodriguez requested an MSDS for soda ash and so he went to Mike Kinzer’s office to get one and when he returned Rodriguez had already obtained one. (Tr. 106). He had an MSDS he was going to give Rodriguez. (Tr. 106). He did not tell Rodriguez he had an MSDS but it was in his hand and visible. (Tr. 106). Berube did not know if Rodriguez was kidding when he first asked for an MSDS so he asked if he was serious. (Tr. 106). There is a different demeanor on the job site so he asked if he was serious and when he was Berube went and got one. (Tr. 106-107). He was gone 20-25 minutes. (Tr. 107).

With respect to the scaffolding project, when he came back with tools Way and Rodriguez were already tied off on the scaffolding performing work. (Tr. 107). They did not have a conversation about the safety of the scaffolding until they were already up. (Tr. 107). When they were on top of the scaffolding Rodriguez said he did not know if it was legal for them to tie off to the vertical staffs. (Tr. 107-108). Berube did not know and he went and got more tools. (Tr. 108). Berube never told them to get up there because they needed to get the job done. (Tr. 108). A tie-off was required because of the tag. (Tr. 108). Berube never told Rodriguez to tie off to a horizontal bar. (Tr. 108).

With respect to Johnson’s complaint, Johnson never told Berube about the confined space; Berube’s father told him about it. (Tr. 108). They pulled off a portion of the wood skirting on the double wide trailer. (Tr. 108-109). Neither Johnson nor anyone else asked about the confined-space issue. (Tr. 109). He never ordered anyone to go under the trailer. (Tr. 109). Once a new manhole is opened it is no longer a confined space because there are two ways to enter. (Tr. 109).

Berube discussed the MSDS issue with Cartwright on the night of the 24^th. (Tr. 109). He does not recall if he ever told Cartwright about the scaffolding issue. (Tr. 109-110). Berube was not involved in the decision to terminate Cartwright. (Tr. 110).

Cross Examination of Berube:

In addition to the MSDS, Rodriguez asked what PPE was required for the task at the sodium carbonate tank. (Tr. 110). In addition he asked if Berube had reviewed the JSA. (Tr. 110). Rodriguez also expressed concern about what to do in the event of exposure. (Tr. 110). Berube had spoken with the operators and they did not believe there were any serious safety concerns. (Tr. 110-111). However, because Rodriguez wanted an MSDS, Berube got one. (Tr. 111). He had never worked with sodium carbonate before that date. (Tr. 111). He did not know what to do in the event of overexposure. (Tr. 111). Berube thought that Rodriguez may have been joking about the MSDS because his demeanor did not appear serious. (Tr. 111). He was not laughing when he asked. (Tr. 111-112). Berube did not give the workers any task training for unclogging the pipe. (Tr. 112). To Berube’s knowledge neither Way nor Rodriguez had ever worked with soda ash before. (Tr. 112). Berube did not review the MSDS prior to that day. (Tr. 112).

Rodriguez was already tied off to the vertical staff when Berube arrived. (Tr. 112). Rodriguez told Berube he did not want to leave Way alone because he was an apprentice. (Tr. 113). Rodriguez was not wrong to point out the safety issue posed by the scaffolding tie-off. (Tr. 113). Berube did not think Rodriguez was overly cautious about safety concerns. (Tr. 113).

Findings and conclusions

Protected activity

The Mine Act contains safeguards for miners engaged in protected activity. Specifically, §105(c)(1) states, in relevant part:

No person shall discharge or in any manner discriminate againstYor otherwise interfere with the exercise of the statutory rights of any minerYin any coal or other mine subject to this chapter because such minerYhas filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator's agentYof an alleged danger or safety or health violation in a coal or other mine.

30 USC ' 815(c)(1). As shown previously, to support a temporary reinstatement there must be protected activity with a connection, or nexus, to an adverse employment action. The initial issue is whether Rodriguez engaged in activity that triggered those protections.

On January 24, 2013 Rodriguez testified that he spoke out regarding two separate safety issues. First, he refused to work on a sodium carbonate tank until he was provided with an MSDS. (Tr. 28). Rodriguez testified that he requested the MSDS to know what to do in the event of overexposure. (Tr. 29). Also, Rodriguez wanted to know the proper PPE to use when handling sodium bicarbonate and questioned whether his supervisor, Berube, was knowledgeable about the chemical. (Tr. 28-29). In his testimony, Berube conceded that Rodriguez requested an MSDS. (Tr. 106). Therefore it is uncontested that Rodriguez requested an MSDS because of safety concerns.^{^[5]} Further, there is no evidence to suggest that requesting an MSDS is not protected activity. Requesting safety material concerning a chemical exposure falls squarely within the protection of §105(c)(1). In light of the testimony, Rodriquez’s claim that he was engaged in protected activity with respect to the soda ash project is not frivolous.

Rodriguez’s also claimed that he engaged in protected activity by refusing to tie off on a vertical scaffolding pole rather than on a designated tie-off point, as required by MSHA. (Tr. 37). Berube testified that Rodriguez was already on the scaffolding and tied off to the vertical pole when he arrived at the site. (Tr. 107-108, 112). However, Berube conceded that Rodriguez raised concerns about the safety of the scaffolding once he was on it. (Tr. 112). Here there is a conflict in the evidence. Rodriguez claims that he engaged in protected activity before climbing the scaffolding and after being ordered to climb while Berube claims that Rodriguez only raised the safety concerns after climbing the scaffolding. However, this conflict in the testimony is immaterial. It does not matter when Rodriguez engaged in protected activity, only that he did so. It is uncontested that Rodriguez engaged in protected activity at some point with respect to the scaffolding. Therefore, Rodriguez’s claim that he was engaged in protected activity with respect to the scaffolding project is not frivolous.

Nexus between the protected activity and the alleged discrimination

Having concluded that Rodriguez engaged in protected activity, the examination now turns to whether that activity has a connection, or nexus, to the subsequent adverse action, namely the January 25, 2012 termination. The Commission recognizes that the nexus between protected activity and the alleged discrimination must often be drawn by inference from circumstantial evidence rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has identified several circumstantial indicia of discriminatory intent, including: (1) hostility or animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 2510.

Hostility or animus towards the protected activity

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, 2 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). In Secretary of Labor on behalf of Turner v. National Cement Company of California, the Commission discussed some actions that could be considered animus or hostility toward protected activity. 33 FMSHRC 1059 (May 2011). Specifically, the Commission remanded the case because, among other reasons, the ALJ failed to consider Respondent’s animus in ignoring or denigrating an employee’s safety suggestions. Id. at 1069.

In this case, the Secretary presented evidence that Berube, an agent of Respondent, denigrated and ignored Rodriguez’s safety concerns. Rodriguez testified that Berube denigrated his safety concerns with respect to the soda ash. When Rodriguez asked for an MSDS Berube responded “are you serious?” and seemed in disbelief over the request. (Tr. 28). In fact, Berube conceded at hearing that he asked if Rodriguez was serious. (Tr. 106-107, 111-112). Further, Rodriguez testified that after his request Berube left and never obtained an MSDS. (Tr. 30-31). Rodriguez also testified that Berube ignored his safety concerns with respect to the scaffolding. Specifically, Rodriguez informed Berube that it was against MSHA regulation to tie off on the scaffolding pole but Berube told him that it was okay for this job and that he needed to finish quickly. (Tr. 37). When Rodriguez continued to refuse the unsafe order, Berube ordered Way to climb onto the scaffolding. (Tr. 38). Rodriguez also testified to another incident in which Berube ordered another miner to enter a confined space despite that miner’s safety concerns. (Tr. 40-41)

Respondent presented evidence that conflicted with Rodriguez’s testimony. First, Berube testified that as soon as he realized Rodriguez was serious about the MSDS request that he went and retrieved one. (Tr. 106-107). He also testified that when he arrived at the scaffolding Rodriguez was already on it and that he was attentive to Rodriguez’s safety concerns. (Tr. 107-108). Finally, he testified that he was not involved in the incident with the other miner concerning the confined area. (Tr. 108). However, it is not a judge’s role to weigh conflicting evidence in a temporary reinstatement hearing. CAM Mining, LLC, 31 FMSHRC at 1085. In this case, I find that Rodriguez’s testimony supports an inference as to Respondent’s animus towards protected activity.

Knowledge of the protected activity

According the Commission, “the Secretary need not prove that the operator has knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090 citing Chicopee Coal Co., 21 FMSHRC at 719. Rodriguez testified that he spoke out about both of his safety concerns in front of a member of management, Berube. (Tr. 28-29, 37). At hearing, Berube acknowledged that Rodriguez expressed concerns about both issues. (Tr. 106, 112). Furthermore, Cartwright (the firing official) acknowledged that he learned about Rodriguez’s request for an MSDS for soda ash from Berube on the night of January 24^th. (Tr. 90). Therefore, it is uncontested that Respondent had at least some knowledge of the protected activity before the termination occurred.

However, Respondent argued that the decision to lay-off Rodriguez was made on the morning of January 24, before either of Rodriguez’s protected actions. (Tr. 89). Cartwright testified that he made the decision but allowed Rodriguez to finish the week before telling him. (Tr. 103). In essence, Respondent argues that it chose to terminate Rodriguez before it could possibly have knowledge as to his protected activity. However, Rodriguez testified that he believed the decision to terminate was made after he raised safety issues with respect to the scaffolding. (Tr. 48-49). Perhaps more importantly, he testified that on the morning of the 24^th, Cartwright explained to him a new project that would last about a month and gave him instructions about what his role would be on that project. (Tr. 20-24). It is not possible to reconcile Cartwright’s testimony that the decision was made to terminate Rodriguez on the morning of the 24^th with Rodriguez’s testimony that Cartwright gave him a role in a new month-long project at the same time.^{^[6]} Moreover, that role included the continuation of Rodriguez as foreman and continuing training activities. As such, I believe that Rodriguez has raised a non-frivolous issue as to whether Cartwright made the decision to terminate only after learning of the protected activity.

Coincidence in time between the protected activity and the adverse action

The Commission has accepted substantial gaps between the last protected activity and adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) and Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miners= contact with MSHA and the operator=s failure to recall miners from a lay-off; however, only one month separated MSHA=s issuance of a penalty resulting from the miners= notification of a violation and that recall failure). The Commission has stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between protected activity and subsequent adverse action when assessing an illegal motive. Surrounding factors and circumstances may influence the effect to be given to such coincidence in time.’” All American Asphalt, 21 FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991).

In the present matter, the time between the protected activity and the termination was less than 24-hours. Rodriguez did not testify as to what time he requested the MSDS. However it was sometime after he was task trained on the new project around 10:30 a.m. (Tr. 22). He also testified that he began work on the scaffolding at around 2:00 p.m. (Tr.39). According to his testimony, he climbed the scaffolding only after making his safety concerns known. (Tr. 37-38). Therefore both of his safety concerns occurred between 10:30 a.m. and 2:00 p.m. on January 24, 2013. Rodriguez arrived the next day for work at 5:00 a.m. (Tr. 20). He worked for around an hour and a half and then, shortly thereafter, he was laid off. (Tr. 43-44). This easily meets the Commission’s requirements. Thus, I find that the time span between the protected activities and the adverse action is sufficient to establish a nexus.

Disparate Treatment

“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). In this case, Rodriguez was punished for allegedly loafing and refusing to work. There is no evidence on record of any other employees punished less severely for the same or similar alleged misconduct. Therefore there is no evidence of disparate treatment. However, 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.

As has already been shown, there is sufficient evidence to conclude that this discrimination claim was not frivolously brought as it relates to animus, knowledge, and coincidence in time. Therefore, I find that the Secretary has established a nexus between Rodriguez=s protected activity and the Respondent=s subsequent adverse action.

Tolling the Reinstatement

Respondent argued that, because all of the “local” employees hired on December 13, 2013 were laid off by January 25, 2013, any requirement to reinstate Rodriguez is tolled because no jobs were available after that date. (Tr. 116-117). As previously stated, following a motion in limine filed by the Secretary, I limited evidence concerning the issue of tolling. I rested that determination on the Commission decision in Cobra Natural Resources, wherein the Commission held that it was within the Judge’s discretion to consider the issue of tolling. 35 FMSHRC__, slip op. at *3, (February 28, 2013), 2013 WL 865606.

However, in reviewing Respondent’s proffer on this point, I have determined that Respondent is not actually making an argument about tolling. Instead, it is offering an alternative explanation for the decision to terminate Rodriguez on January 25, 2013. The first argument, the one already discussed, is that Rodriguez was terminated on January 25, 2013 for cause; loafing and refusing to work. However, in its tolling argument, Respondent contends that on January 25, 2013 there was no longer any work available for Rodriguez and so no reinstatement is necessary. Essentially, it argues that it has two reasons to discharge Rodriguez on January 25^th: it had just cause for a termination and it had economic reasons for a termination.

This is not an argument for tolling; it is a second affirmative defense to the discrimination claim. The very issue at the heart of this case is whether there is reason to believe that Rodriguez’s termination on January 25, 2013 was the result this protected activity. As already shown above, I have found that the issue is not frivolous. It does not matter if Respondent argues under either theory - whether because he was a loafer or because there was no work - I have determined that there is a non-frivolous issue as to the discriminatory intent of the discharge that day.

The essence of a tolling argument is that while a reason for the discharge may have been discriminatory, there was another intervening event that would have caused a discharge anyway. See Chadrick Casebolt, 6 FMSHRC 485, 499 (Feb. 1984) (“if business conditions result in a reduction in the work force the right to back pay is tolled because a discriminatee is entitled to back pay only for the period during which he would have worked but for the unlawful discrimination.”) When the alleged discriminatory discharge and the alleged legitimate economic lay-off occur on the same day, it is impossible (in a temporary re-instatement case where conflicts cannot be resolved) to determine which motive resulted in the lay-off or for what period the alleged discriminatee is entitled to payment.

I recognize that I did not allow Respondent to present evidence regarding the alleged economic reasons for a January 25^th discharge. However, I find that even if I allowed Respondent to present all of its evidence at best it would present a conflict of evidence. Respondent would assert that the January 25^th discharge was either for cause or for economic reasons and Rodriguez and the Secretary would assert that it was for the protected activity already discussed at length above. That would not change my determination here.

As a result, I find that tolling in this case is inappropriate. That is not to say that there might not have been legitimate economic reasons for the lay-off. It means that the appropriate forum for that discussion is in a discrimination proceeding.

Pay Rate

With respect to pay rate, “Any remedial relief due…must be determined…on the basis of whatever non-discriminatory status he would have occupied…had he not been disciplined.” Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1420 (June 1984). There is a conflict in testimony as to whether Rodriguez would have been in the position of a journeyman pipefitter or a foreman. Rodriguez testified that his last paycheck was paid at a foreman’s rate. (Tr. 48). Cartwright testified that Rodriguez’s last paycheck was paid at a journeyman pipefitter’s rate. (Tr. 101-102). However, Rodriguez admitted that Cartwright had told him that his pay might decrease in the future. (Tr. 62-64). As a result, I find that Rodriguez was aware that continuing in employment with Respondent meant there was a possibility of working at a journeyman pipefitter’s rate. Therefore, I find that it is appropriate for Rodriguez to be reinstated at that position and at that rate.

Conclusion

In concluding that Rodriguez=s complaint herein was not frivolously brought, I give weight to the evidence of record that he expressed concern about the soda ash project and the scaffolding project. I also conclude that there were non-frivolous issues as to whether Respondent was aware of Rodriguez actions, that Respondent showed animus toward Rodriguez=s alleged protected activities, and that there was a close connection in time between his alleged protected activity and his January 25, 2013 discharge.

^{^[1]} Under the Act, protected activity includes filing or making a complaint of an alleged danger, or safety or health violation, instituting any proceeding under the Act, testifying in any such proceeding, or exercising any statutory right afforded by the Act. See Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).

^{^[2]} ASubstantive 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)).

^{^[3]}Hereinafter references to the transcript will be cited “Tr.” with the page number.

^{^[4]} Initially Cartwright stated that Rodriguez’s last payment was to be on the foreman’s scale. However, he corrected himself and said that it was on the journeyman’s scale.

^{^[5]}The only other witness at the hearing, Cartwright, was not present for either instance of alleged protected activity and did not provide testimony regarding whether or not protected activity occurred. (Tr. 90-91).

^{^[6]}Cartwright conceded that Respondent had a new project, although he stated it would have only lasted a week and a half. (Tr. 91). However, the amount of time is immaterial. The fact that a new project was available and Rodriguez was trained for a role in it is significant. It tends to undercut the claim that a decision had already been made regarding discharge on Thursday morning.