FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

April 20, 2012

 ORDER GRANTING SECRETARY’S

MOTION FOR SUMMARY DECISION

AND

ORDER GRANTING AMENDED APPLICATION

FOR TEMPORARY REINSTATEMENT

Before: Judge Feldman

            This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”). Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the “scope of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as to whether a miner’s discrimination complaint is frivolously brought.” See 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 (11th Cir. 1990).

            I. Background

            Before me is the Secretary’s March 21, 2012, motion for summary decision seeking the temporary reinstatement of Reuben Shemwell by Armstrong Coal Company, Inc. (“Armstrong Coal Company”). Shemwell was employed as a welder at Armstrong Coal Company’s Parkway Mine Surface Facilities located in Muhlenberg County, Kentucky. Shemwell’s employment was terminated on September 14, 2011. The Secretary alleges that Shemwell’s dismissal was motivated by his repeated complaints concerning the need for respirator protection from fumes that were generated during the welding process. Respirators were ultimately provided to personnel in April 2011.

            Armstrong Coal Company opposed the Secretary’s motion on March 27, 2012. In its opposition, Armstrong Coal Company argued, inter alia, that although Shemwell was working as a welder at the Parkway Mine Surface Facilities at the time of the September 14, 2011, discharge, he was employed by a business entity known as Armstrong Fabricators, Inc. (“Armstrong Fabricators”). Nevertheless, Armstrong Coal Company asserted Shemwell was discharged on September 14, 2011, for excessive personal cell phone use during working hours. Significantly, Armstrong Coal Company does not specifically deny that Shemwell communicated protected safety and health related complaints concerning the lack of respirator protection.

            Armstrong Coal Company’s March 27, 2012, opposition primarily is based on its assertion that it is not a proper party to this proceeding because, although Shemwell was working as a welder at its surface facilities at the time of the September 14, 2011, discharge, Shemwell was employed by Armstrong Fabricators. Armstrong Coal Company characterizes Armstrong Fabricators as a “a sister company.” Resp. Initial Opp. at 7.

            Given these representations, during a March 28, 2012, telephone conference, the Secretary was given the opportunity to file an amended application for temporary reinstatement adding Armstrong Fabricators as a party to this proceeding. Armstrong Coal Company and Armstrong Fabricators are represented by the same counsel. During the telephone conference, counsel for these entities represented that they would not object, on procedural grounds to the Secretary’s filing of an amended reinstatement application. Accordingly the Secretary’s request for leave to file an amended application for temporary reinstatement HAS BEEN GRANTED.             

            II. Proper Parties in this Matter

            On April 2, 2012, the Secretary filed her motion to amend her temporary reinstatement application by seeking to add Armstrong Fabricators as a party. At the outset, I note that it

is not disputed that Armstrong Fabricators is a proper party to this proceeding. In this regard, Oscar Ramsey, Armstrong Fabricators’ shop manager, admits Reuben Shemwell was employed by Armstrong Fabricators until his September 14, 2011, termination. Resp. Initial Opp., Ex. 3. The Secretary argues that Armstrong Coal Company should be estopped from denying that it employed Shemwell, or, that Armstrong Coal Company and Armstrong Fabricators are “joint employers” named as proper parties in this proceeding. Sec’y mem. in support of amend. app., at 2-5. In support of the Secretary’s amended application, the Secretary notes that Shemwell’s September 14, 2011, termination letter, which was written on Armstrong Coal Company stationery, states:

Reuben [W. Shemwell],

This letter is to inform you that your employment with Armstrong Coal Company has been terminated effective 9/14/11.

Respectfully,

            [/s]

Gary Phillips

Director of Human Resources [for Armstrong Coal Company]

Sec’y Mot. for Summ. Dec., Ex. A; Sec’y Amended App., Ex. A (emphasis added).

            The Secretary’s amended application also relies on several additional written statements by Phillips stating that Shemwell was an employee of Armstrong Coal Company. In a letter to Jonathan S. King dated September 19, 2011, and, in responses to the Commonwealth of Kentucky’s Unemployment Insurance Office, dated October 4, 2011, Phillips represented that Shemwell was employed by Armstrong Coal Company. See Sec’y Amended App., Exs. B and C.

            Armstrong Coal Company filed a supplemental response on April 12, 2012, again opposing its inclusion as a party. Armstrong Coal Company’s opposition is primarily based on Shemwell’s pay stubs and 2011 W-2 tax forms that reflect his employer was Armstrong Fabricators, Inc., at the address of 407 Brown Road, Madisonville, Kentucky 42431. It is noteworthy that the address of Armstrong Fabricators is the same as the address for Armstrong Coal Company as reflected in its official correspondence letterhead. Sec’y Amended App., Ex. A.  Moreover, Armstrong Coal Company’s attempt to extricate itself at this early preliminary stage despite its status as an admitted “sister corporation” of Armstrong Fabricators is unavailing. The Commission has addressed the issue of when a parent corporation and its subsidiary corporations constitute a “unitary operator” subjecting the affiliated corporations to liability under the Mine Act. Berwind, 21 FMSHRC 1284, 1316-17 (Dec. 1999). In Berwind, the Commission stated:

Accordingly, we will consider the following factors in determining whether entities will be treated as a unitary operator for purposes of the Mine Act: (1) interrelation of operations, (2) common management, (3) centralized control over mine health and safety, and (4) common ownership. To demonstrate unitary operator status, not every factor need be present, and no particular factor is controlling. Instead, we will weigh the totality of the circumstances to determine whether one corporate entity exercised such pervasive control over the other that the two entities should be treated as one.

21 FMSHRC at 1317.

            During the March 28, 2012, telephone conference, Respondents’ counsel represented that Armstrong Energy, Inc., is the parent company of “sister companies” Armstrong Coal Company and Armstrong Fabricators. Thus, the appearance of interrelated ownership is sufficient in light of the Secretary’s minimal burden of proof at this early stage of the proceeding to satisfy the fourth element of Berwind. The fact that “sister corporation” Armstrong Fabricators was providing services at Armstrong Coal Company’s surface facilities, and that these affiliated corporations share the same business address, provide further evidence of common ownership, as well as an interrelation of operations satisfying the first Berwind criterion. Additionally, the notification of Shemwell’s discharge by the Director of Human Resources for Armstrong Coal Company demonstrates common mine management. Phillips’ role also reflects centralized control over personnel matters that could impact mine safety and health demonstrating the second and third indicia for a “unitary operator” enunciated in Berwind.

            Furthermore, with respect to “unitary operator” status, it is significant that Armstrong Fabricators has failed to comply with the reporting requirements of 30 C.F.R. Part 41 of the Secretary’s regulations because it has not registered as a mine operator. Sec’y mem. in support of amend. app., at 1 n. 1. Thus, the only entity of the subject affiliated corporations that acquiesced to Mine Act jurisdiction was Armstrong Coal Company by virtue of its Mine ID No. of 15-19356. Under the “alter ego” theory of corporation law, a business entity cannot seek to escape liability arising out of the operation of one business entity that was conducted for the benefit of the affiliated enterprise. Berwind, 21 FMSHRC at 1314-15. Simply put, Armstrong Coal Company may not now escape exposure to liability for mining related operations at its Parkway Mine Surface Facilities by seeking to shift liability to an affiliated corporation when Armstrong Coal Company was the only relevant authorized mine operator at the time of Shemwell’s discharge.

            In addition, it should be noted parenthetically that corporations may be liable, as successors, for relief under section 105(c)(2) of the Mine Act even if the management and ownership of the corporation is different and distinct from that of the mine operator that discriminated. Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 609 (Apr. 1993). In discrimination cases involving successorship, the Commission looks to such factors as notice of the alleged discriminatory action, the ability of the successor to provide relief, whether the substitute employer uses the same mine site with a similar workforce, and, whether the successor company has the same management (human resource) personnel. Id. at 610 (citations omitted).

            All of these indicia are present in this case. It is undisputed that Armstrong Coal Company had notice of the alleged underlying facts that support the application for temporary reinstatement by virtue of the termination letter and the information provided to the Kentucky State Unemployment Insurance Office. It obviously has the ability to provide reinstatement of Shemwell to his former position as a welder/laborer given its continuing mining operations. With regard to the remaining issue of successorship, there is a commonality of employment location and management, as reflected by the active participation of Armstrong Coal Company’s Human Resources Director in the decision to terminate Shemwell.

            The decision to hold Armstrong Coal Company and Armstrong Fabricators subject to joint and several liability for relief under the antidiscrimination provisions of section 105(c)(2) of the Mine Act is essential at this stage of the proceeding. The Secretary asserts that Armstrong Fabricators is not registered to do business in the State of Kentucky. Sec’y mem. in support of amend. app., at 1 n. 1. Regardless of whether Armstrong Fabricators is authorized to operate in Kentucky, Mine Safety and Health Administration records reflect that Armstrong Fabricators has failed to comply with the reporting requirements in 30 C.F.R. § 41.10 of the Secretary’s regulations because it has not registered as an operator performing services at a mine. Id. Also, it is significant that counsel represented during the March 28, 2012, telephone conference that Armstrong Fabricators is not actively engaged in business, and, that it may not have the ability

to reinstate Shemwell.

            It is instructive that the legislative history of the Mine Act reflects Congress’ concern that effective relief must be afforded to victims of discrimination. The Commission has noted this congressional concern:

It is the Committee’s intention that the Secretary propose, and that the Commission require, all relief that is necessary to make the complaining party whole and to remove the deleterious effects of the discriminatory conduct including, but not limited to[,] reinstatement with full seniority rights, back-pay with interest, and recompense for any special damages sustained as a result of the discrimination. The specified relief is only illustrative.

Consolidation Coal, 20 FMSHRC 1293, 1307 (Dec. 1998) citing S. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 625 (1978).

            Thus, the Commission possesses broad remedial power in fashioning relief in discrimination cases that is appropriate for varied and diverse circumstances. See Consolidation Coal, 20 FMSHRC at 1306-07. This is especially true in this situation where only one of several relevant business entities may be capable of providing such relief.

            It is not the judge’s duty to resolve real party-in-interest issues on the merits at this preliminary stage of a temporary reinstatement proceeding. Sec’y o/b/o Albu v. Chicopee Coal, 21 FMSHRC 717, 719 (July 1999). Given the Commission’s broad remedial authority, it is clear that the Secretary’s assertion that Armstrong Coal Company is a proper party to this proceeding as an affiliated corporate entity is not frivolous. Armstrong Coal Company has the ability to temporarily reinstate Shemwell. Armstrong Coal Company may contest its party status at a hearing on the merits if the Secretary elects to bring a discrimination case on behalf of Shemwell. Consequently, the Secretary’s motion to amend its application for temporary reinstatement to include both Armstrong Coal Company and Armstrong Fabricators as parties to this proceeding IS GRANTED.

            III. Timeliness

            Section 105(c)(2) of the Mine Act provides that a miner alleging to be the victim of discriminatory discharge “. . . may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination.” 30 U.S.C. § 815(c)(2). Armstrong Coal Company asserts that Shemwell’s complaint must be dismissed as untimely because it was filed on January 23, 2012, a period of 131 days after his September 2011 termination, which I construe as a motion to dismiss. Resp. Initial Opp. at 8.

            Dismissal is a harsh remedy. Moreover, Commission case law is clear that the 60-day period for filing a discrimination complaint under section 105(c)(2) is not jurisdictional. Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093 (D.C. Cir. 1984). An analysis of the facts “on a case-by-case basis, taking into account the unique circumstances of each situation” is required in order to determine whether a miner’s late filing should be excused. Id. For example, “a miner’s genuine ignorance of applicable time limits may excuse a late filed discrimination complaint.” Gary D. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999) citing Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13

(Jan. 1984).

            Absent a showing of prejudice, a reasonable delay in filing a discrimination complaint should not disqualify a miner from exercising his statutory right to seek relief from adverse action that he believes was motivated by his protected activity. An approximate four month filing delay does not significantly undermine the recollection of witnesses, or otherwise interfere with the Respondents’ ability to defend themselves. Consequently, a reasonable filing delay, absent prejudice, does not confer rights or defenses on an opposing party. Accordingly, the Respondent’s request to dismiss this matter because the underlying discrimination complaint was not filed in a timely manner IS DENIED.

            IV. Not Frivolously Brought Standard

            While the Secretary is not required to present a prima facie case in a temporary reinstatement proceeding, it is helpful to review the ultimate proof to support a discrimination claim to determine whether the nonfrivolous test in this matter has been met. In order to demonstrate a prima facie case of discrimination under section 105(c) of the Act, the Secretary must establish that Shemwell: (1) engaged in protected activity and (2) that the adverse action complained of, in this case Shemwell’s termination, was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981).

            Direct evidence of a discriminatory motive is rarely encountered. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). Rather the Commission has identified several circumstantial indicia of discriminatory intent, namely: (i) hostility or animus toward the protected activity; (ii) knowledge of the protected activity; and (iii) coincidence in time between the protected activity and adverse action. Id.

            The Respondents, in essence, assert that Shemwell’s termination was motivated solely by his unauthorized cell phone use, and, that his discharge was not motivated, in any part, by protected activity. The Secretary contends that Shemwell’s termination was motivated by his repeated requests for respirator protection. As previously noted, given the narrow scope of a temporary reinstatement proceeding, it is premature to resolve issues regarding the underlying motivation for Shemwell’s termination at this preliminary stage of the proceeding. Chicopee Coal, supra, at 21 FMSHRC 719.

            It is sufficient that Armstrong Coal Company has directly, and indirectly, acknowledged Shemwell’s protected activity. As a threshold matter, during the March 13, 2012, conference call, counsel for Armstrong Coal Company acknowledged Shemwell’s complaints concerning respirators. Moreover, in its opposition to the Secretary’s motion for summary decision, Armstrong Coal Company states “[it] assumes arguendo for the purposes of the Secretary’s present Motion [for Summary Decision] that Shemwell has engaged in protected activity.” Resp. Initial Opp. at 11. However Armstrong Coal Company reserved the right to later dispute any allegation that Shemwell in fact engaged in protected activity. Id. at n. 5.  

            Turning to the Chacon indicia for discriminatory intent, a temporary reinstatement proceeding also is not the appropriate vehicle for resolving credibility conflicts. Chicopee Coal, supra, at 21 FMSHRC 719. Thus as Armstrong Coal Company apparently recognizes, it is appropriate to assume for the purposes of this proceeding that Shemwell engaged in protected activity culminating in the provision of respirators in April 2011, particularly in the absence of an explicit denial that protected activity occurred. With respect to coincidence in time, the approximate five month period between the asserted April 2011 response to Shemwell’s complaints and the September 2011 termination is of sufficiently short duration to satisfy the Secretary’s not frivolously brought evidentiary burden. 

            Even if Shemwell engaged in protected activity, Armstrong Coal contends that mine management personnel who participated in the decision to terminate Shemwell were unaware of such activity. The Commission has long held that “[a]n operator may not escape responsibility by pleading ignorance due to the division of company personnel functions.” Jayson Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1067 (May 2011)

citing Metric Constructors, Inc., 6 FMSHRC 226, 230 n. 4 (Feb. 1984). In any event, such a defense cannot be relied upon to defeat reinstatement during this preliminary proceeding.

            Finally, the ultimate issue of whether there was hostility or animus towards Shemwell for his purported protected activity must await a full evidentiary hearing on the merits of the discrimination complaint. At this time the Secretary continues to investigate.

ORDER

            Disposition by summary decision is appropriate provided (1) the entire record establishes that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). To prevail in this preliminary matter, the Secretary must only demonstrate that the application for temporary reinstatement is not frivolous. As discussed above, the record, consisting of the appearance of interrelated corporate ownership; protected activity uncontested for the purposes of this proceeding; and coincidence in time between the reported protected activity and Shemwell’s termination establishes that the application for temporary reinstatement has not been frivolously brought. Accordingly, IT IS ORDERED that the Secretary’s amended motion for summary decision with respect to her application for temporary reinstatement IS GRANTED. 

            Consequently, IT IS FURTHER ORDERED that Armstrong Coal Company, Inc., and/or Armstrong Fabricators, Inc., immediately reinstate Reuben Shemwell, no later than Wednesday, April 25, 2012, to the position he immediately held prior to his September 14, 2011, termination, or, to a similar position as a laborer at the same rate of pay and benefits, and with the same or equivalent duties assigned to him.            

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor,

618 Church Street, Suite 230, Nashville, TN 37219-2440

Adam Spease, Esq. and Adam Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street,

4^th Floor, Louisville, KY 40202 - Counsel for Armstrong Coal Company and Armstrong Fabricators Inc.

Dan Zuluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431

/jel